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"SECTION 8. Counterparts. This Agreement may be executed in multiple counterparts, each of which 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 page of this Agreement by telecopy or electronic means (including pdf) shall be effective as delivery of a manually executed counterpart of this Agreement."
"This FIRST AMENDMENT AND RESTATEMENT AGREEMENT (this Agreement) is entered into as of October 13, 2017 among (i) CNO FINANCIAL GROUP, INC., a Delaware corporation (the Borrower), (ii) the Lenders (as defined below) executing signatures page hereto, and (iii) KEYBANK NATIONAL ASSOCIATION, as the administrative agent for the Lenders (the Administrative Agent)."
"2.3Effective on the Restatement Effective Date, pursuant to Section 10.14 of the Existing Loan Agreement, (i) any Non-Consenting Lender shall cease to be a Lender under the Existing Loan Agreement (such lender, a Departing Lender) and, in accordance with Section 10.14, shall be deemed to have assigned and delegated, without recourse, all of its interests, rights and obligations under the Existing Loan Agreement (except as otherwise provided herein) and the related Loan Documents to each of the Lenders consenting to this Agreement, on a pro rata basis, (ii) the Administrative Agent shall make such reallocations, sales, assignments or other relevant actions in respect of each Lenders credit exposure under the Existing Loan Agreement as are necessary in order that each such Lenders Revolving Exposure and outstanding Loans under the Existing Loan Agreement reflects such Lenders Pro Rata Share of the aggregate Revolving Exposure on the Restatement Effective Date, (iii) all Loans as defined in, and outstanding under, the Existing Credit Agreement on the Restatement Effective Date of each Departing Lender shall be repaid in full (accompanied by any accrued and unpaid interest and fees thereon), each Departing Lenders Commitment under the Existing Loan Agreement shall be terminated and each Departing Lender shall not be a Lender under the Restated Loan Agreement (provided, however, that each Departing Lender shall continue to be entitled to the benefits of Sections 3.03, 10.04 and 10.05 of the Restated Loan Agreement) and (iv) the Borrower hereby agrees to compensate each Lender (including each Departing Lender) for any and all losses, costs and expenses incurred by such Lender in connection with the sale and assignment of any Eurodollar Rate Loans (including the Eurodollar Rate Loans under the Existing Credit Agreement) and such reallocation (and any repayment or prepayment of a Departing Lenders Eurodollar Rate Loan) described above, in each case on the terms and in the manner set forth in Sections 3.01, 3.03, 3.04, 3.05 and 10.04 of the Existing Credit Agreement."
"a.The Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles or Adobe PDFs delivered by electronic mail (followed promptly by originals, if requested) unless otherwise specified, each properly executed by a Responsible Officer of the Company, each dated the Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Restatement Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:"
"(A)copies of the resolutions of the board of directors, authorized subcommittee thereof, or other equivalent body of the Company authorizing this Agreement and the transactions to which the Company is a party contemplated hereby, certified as of the Restatement Effective Date by the Secretary or an Assistant Secretary of the Company; and"
"e.each of the representations and warranties set forth in Article 5 of the Restated Loan Agreement is true and correct in all material respects (or in all respects if such representation or warranty is qualified by Material Adverse Effect or other materiality qualifier) as of the Restatement Effective Date (except to the extent that any such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date)."
"4.2Compliance Certificates. To the extent not delivered on the Restatement Effective Date, within 15 days after the Restatement Effective Date (or such longer period as agreed by the Administrative Agent), the Borrower shall deliver to the Administrative Agent a compliance certificate for each Insurance Subsidiary from the Department of Insurance of its jurisdiction of domicile as of a recent date."
"Acquisition means (i) any Investment by the Company or any of its Subsidiaries in a Person (other than an existing Wholly-Owned Subsidiary) whereby such Person becomes a direct or indirect Subsidiary of the Company or is merged with and into the Company or such Subsidiary or (ii) an acquisition by the Company or any of its Subsidiaries of the property and assets of any Person (other than an existing Wholly-Owned Subsidiary) that constitutes all or substantially all of the assets of such Person or any division, line of business, book of business or business unit of such Person; provided that capital expenditures (as determined in accordance with GAAP) that do not, individually or as part of a series of related transactions, result in the acquisition of all or substantially all of the assets of any Person or any division, line of business, book of business or business unit of such Person shall be deemed not to be Acquisitions."
"Anti-Money Laundering Laws means any and all laws, judgments, orders, executive orders, decrees, ordinances, rules, regulations, statutes, case law or treaties applicable to the Obligor, its subsidiaries or Affiliates, related to terrorism financing or money laundering including any applicable provision of Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2001 (Title III of Pub. L. 107-56) and The Currency and Foreign Transactions Reporting Act (also known as the Bank Secrecy Act, 31 U.S.C.  5311-5330 and 12 U.S.C.  1818(s), 1820(b) and 1951-1959)."
"The unsecured debt rating shall be determined by the then-current rating announced by either S&P or Moodys, as the case may be, for any class of non- credit-enhanced long-term senior unsecured debt issued by the Company. If only one of S&P and Moodys shall have in effect such an unsecured debt rating, the unsecured debt rating shall be determined by reference to the available rating. If neither S&P nor Moodys shall have in effect such an unsecured debt rating, the unsecured debt rating will be deemed to be lower than BB by S&P and Ba2 by Moodys. If such unsecured debt ratings established by S&P and Moodys shall fall within different levels, the unsecured debt rating will be determined by the higher of the two ratings; provided that in the event that the lower of such unsecured debt ratings is more than one level below the higher of such unsecured debt ratings, the unsecured debt rating will be determined based upon the level that is one level below the higher of such unsecured debt ratings. If any such unsecured debt rating established by S&P or Moodys shall be changed, such change shall be effective as of the date on which such change is first announced publicly by the rating agency making such change. If S&P or Moodys shall change its respective rating system, the parties hereto shall negotiate in good faith to amend the references to specific ratings in this definition to reflect such changed rating system."
"Approved Electronic Communications means any notice, demand, communication, information, document or other material that any of the Company or any of its Subsidiaries provides to the Agent pursuant to any Loan Document or the transactions contemplated therein which is distributed to the Agent, Lenders or Issuing Bank by means of electronic communications pursuant to Section 10.02(b)."
"Debtor Relief Laws means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally."
"(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 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 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 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 Section 2.16(b)) upon delivery of written notice of such determination to the Company, each Issuing Bank, each Swing Line Lender and each Lender."
"Embargoed Person means any party that (i) is publicly identified on the most current list of Specially Designated Nationals and Blocked Persons published by the U.S. Treasury Departments Office of Foreign Assets Control (OFAC) or resides, is organized or chartered or has a place of business in a country or territory subject to OFAC sanctions or embargo programs or (ii) is publicly identified as prohibited from doing business with the United States under the International Emergency Economic Powers Act, the Trading With the Enemy Act or any other United States Requirement of Law."
"Environmental Claims means all written claims, complaints, notices or inquiries, by any Governmental Authority or other Person alleging potential liability or responsibility for violation of any Environmental Law, or for release or injury to the environment or threat to public health, personal injury (including sickness, disease or death), property damage, natural resources damage, or otherwise alleging liability or responsibility for damages (punitive or otherwise), cleanup, removal, remedial or response costs, restitution, civil or criminal penalties, injunctive relief or other type of relief, resulting from or based upon the presence, placement, or Release (including intentional or unintentional, negligent or non-negligent, sudden or non-sudden or accidental or non-accidental placement, spills, leaks, discharges, emissions or releases) of any Hazardous Material at, in, under or from property, whether or not owned by the Company or any of its Subsidiaries, excluding, in any case, liabilities or claims arising under any insurance contract or policy, reinsurance agreement or retrocession agreement relating to any of the foregoing where the Company or any of its Subsidiaries is the insurer."
"Equity Interests means shall mean, with respect to any Person, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents, including membership interests (however designated, whether voting or nonvoting), of equity of such Person, including, if such Person is a partnership, partnership interests (whether general or limited), if such Person is a limited liability company, membership interests, and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of property of, such partnership, whether outstanding on the date hereof or issued on or after the Closing Date, but excluding debt securities convertible or exchangeable into such equity interests."
"(b)in the case of a Lender (other than an assignee pursuant to a request by the Company under Section 10.14), (i) any U.S. federal withholding Tax that is imposed on amounts payable to such Lender under any laws in effect at the time such Lender becomes a party hereto (or designates a new lending office), except to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the time of designation of a new lending office (or assignment), to receive additional amounts from the Company with respect to such withholding Tax pursuant to Section 3.01(a); or (ii) any Tax that is attributable to such Lenders failure to comply with Section 3.01(e) and"
"Interest Payment Date means (a) with respect to any Base Rate Loan, the last Business Day of each calendar quarter and (b) with respect to any Eurodollar Rate Loan, the last day of each Interest Period applicable to the Credit Extension of which such Loan is a part; provided that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the date that falls three months after the beginning of such Interest Period and after each Interest Payment Date thereafter is also an Interest Payment Date (but in each case, subject to the definition of Interest Period)."
"Latest Maturity Date means, at any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration date of any Original Revolving Commitments, Original Revolving Loans, Extended Revolving Commitments or Extended Revolving Loans, in each case as extended in accordance with this Agreement from time to time."
"Minimum Collateral Amount means, 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 each Issuing Bank with respect to Letters of Credit issued and outstanding at such time and (ii) otherwise, an amount determined by the Agent and each Issuing Bank in their reasonable discretion."
"NAIC means the National Association of Insurance Commissioners or any successor thereto, or in the absence of the National Association of Insurance Commissioners or such successor, any other association, agency or other organization performing advisory, coordination or other like functions among insurance departments, insurance commissioners and similar Governmental Authorities of the various states of the United States toward the promotion of uniformity in the practices of such Governmental Authorities."
"Net Equity Proceeds means, with respect to the sale or issuance by the Company to any Person (other than to the Company or a Subsidiary thereof) of any Equity Interests, including, any conversion of debt securities into Equity Interests, the excess of (a) the gross proceeds from such sale, issuance or conversion over (b) all reasonable and customary underwriting commissions and legal, investment banking, brokerage and accounting and other professional fees and disbursements actually incurred in connection with each such sale, issuance or conversion."
"Obligations means all advances to, and debts, liabilities, obligations, covenants and duties of, the Obligor arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against the Obligor of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Obligations of the Obligor under the Loan Documents include (a) the obligation to pay principal, interest, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by the Obligor under any Loan Document and (b) the obligation of the Obligor to reimburse any amount in respect of any of the foregoing that any Lender or Issuing Bank, in its sole discretion, may elect to pay or advance on behalf of the Obligor."
"Other Taxes means any present or future recording, stamp, court or documentary Taxes or any other similar excise, sales or property Taxes, charges or similar levies that arise from any payment made under this Agreement or any other Loan Document or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, this Agreement or any other Loan Document, except any such Taxes that are imposed with respect to an assignment (other than an assignment pursuant to a request by the Company under Section 10.14) by a jurisdiction (or any political subdivision thereof) described in clause (a) of the definition of Excluded Taxes."
"Pro Forma Basis means, with respect to compliance with any test or covenant hereunder and in connection with any event or transaction requiring a calculation on a Pro Forma Basis for any period, compliance with such test or covenant after giving effect to such event or transaction, and (i) in the case of any Material Acquisition or Material Disposition, including pro forma adjustments only to the extent consistent with Article 11 of Regulation S-X under the Securities Act and using for purposes of determining such compliance (x) in the case of any Material Acquisition, the historical financial statements of all entities or assets so acquired or to be acquired and (y) the consolidated financial statements of the Company and its Subsidiaries, which shall be reformulated as if such Material Acquisition or Material Disposition, and any other Material Acquisitions or Material Dispositions that have been consummated during such period, had been consummated on the first day of such period; (ii) in the case of any incurrence or prepayment or repayment of Indebtedness (other than under revolving credit facilities in the ordinary course of business), assuming such Indebtedness was incurred, prepaid or repaid on the first day of such period and assuming that such Indebtedness bears interest during the portion of such period prior to the date of incurrence at, in the case of Indebtedness bearing interest at a floating rate, the weighted average of the interest rates applicable to outstanding Loans during such period and, in the case of Indebtedness bearing interest at a fixed rate, such fixed rate; (iii) in the case of the declaration or payment of any dividend, assuming such dividend had been declared and paid on the first day of such period; and (iv) making such other pro forma adjustments as would be permitted or required by Regulation S-X under the Securities Act; provided, however, that such compliance calculation shall take into account other cost savings measures identified by the Company which the Agent, in its reasonable business judgment, deems reasonably identifiable and factually supportable, and which cost savings measures have been certified by a Responsible Officer."
"Required Lenders means, as of any date of determination, one or more Lenders having or holding Revolving Exposure and representing more than 50% of the aggregate Revolving Exposure of all Revolving Lenders; provided that the aggregate amount of Revolving Exposure shall be determined with respect to any Defaulting Lender by disregarding the Revolving Exposure of such Defaulting Lender."
"Revolving Exposure means, with respect to any Lender as of any date of determination, (a) prior to the termination of the Revolving Commitments, that Lenders Revolving Commitment; and (b) after the termination of the Revolving Commitments, the sum of (i) the aggregate outstanding principal amount of the Revolving Loans of that Lender, (ii) in the case of any Issuing Bank, the aggregate Letter of Credit Usage in respect of all Letters of Credit issued by that Lender (net of any participations by Lenders in such Letters of Credit), (iii) the aggregate amount of all participations by that Lender in any outstanding Letters of Credit or any unreimbursed drawing under any Letter of Credit, (iv) in the case of Swing Line Lender, the aggregate outstanding principal amount of all Swing Line Loans (net of any participations therein by other Lenders), and (v) the aggregate amount of all participations therein by that Lender in any outstanding Swing Line Loans."
"Significant Subsidiary means any Subsidiary that would be a significant subsidiary as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the Closing Date or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements for the Company and its Subsidiaries) would constitute a significant subsidiary as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the Closing Date."
"Surplus Debentures means, as to any Insurance Subsidiary, debt securities of such Insurance Subsidiary issued to the Company or any other Subsidiary the proceeds of which are permitted to be included, in whole or in part, as Capital and Surplus of such Insurance Subsidiary as approved and permitted by the applicable Department."
"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 by the Company based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include any Lender)."
"Total Shareholders Equity means the total common and preferred shareholders equity of the Company as determined on a Consolidated basis and in accordance with GAAP (calculated excluding (i) unrealized gains (losses) on securities as determined in accordance with FASB ASC 320 (Investments-Debt and Equity Securities), (ii) any charges taken to write off any goodwill included on the Companys balance sheet on the Closing Date to the extent such charges are required by FASB ASC 320 (Investments-Debt and Equity Securities) and ASC 350 (Intangibles-Goodwill and Others) and (iii) Accumulated Other Comprehensive Income and Accumulated Other Comprehensive Loss)."
"Transactions means the (i) execution, delivery and performance by the Company of the Loan Documents to which it is to be a party, (ii) borrowing of Revolving Loans hereunder up to the aggregate principal amount of $100,000,000 on the Closing Date, (iii) repayment of all amounts outstanding under the Existing Credit Agreement, (iv) offering, sale and issuance of the Senior Notes, (v) redemption of the Existing Senior Secured Notes and satisfaction and discharge of the indenture relating thereto and (vi) payment of fees and expenses incurred in connection with the foregoing."
"(d)Unless otherwise expressly provided herein or the context requires otherwise, (i) references to agreements (including this Agreement) and other contractual instruments shall be deemed to include all subsequent amendments and other modifications thereto, but only to the extent such amendments and other modifications are not prohibited by the terms of any Loan Document, (ii) references to any statute or regulation are to be construed as including all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting the statute or regulation, (iii) any reference herein to a Person shall be construed to include such Persons permitted successors and assigns and (iv) the word property shall be construed to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights."
"(a)Unless the context otherwise clearly requires, all accounting terms not expressly defined herein shall be construed, and all financial computations required under this Agreement shall be made, in accordance with GAAP as in effect from time to time, consistently applied; provided that any change in GAAP after the Closing Date will not cause any lease that was not or would not have been a capital lease prior to such change to be deemed a capital lease and the obligations with respect thereto shall not constitute Indebtedness pursuant to paragraph (d) of the definition of Indebtedness. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Company 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."
"Agent and Swing Line Lender to charge the Companys accounts with the Agent and Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Lenders, including the Revolving Loans deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. If any portion of any such amount paid (or deemed to be paid) to Swing Line Lender should be recovered by or on behalf of the Company from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in the manner contemplated by Section 2.14."
(f)Obligations Absolute. The obligation of the Company to reimburse any Issuing Bank for drawings honored under the Letters of Credit issued by it and to repay any Revolving Loans made by Lenders pursuant to Section 2.04(d) and the obligations of Lenders under Section 2.04(e) shall be unconditional and irrevocable and shall be paid strictly in accordance with the terms hereof under all circumstances including any of the following circumstances:
"All Loans shall be made, and all participations purchased, by Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood that no Lender shall be responsible for any default by any other Lender in such other Lenders obligation to make a Loan requested hereunder or purchase a participation required hereby nor shall any Revolving Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such other Lenders obligation to make a Loan requested hereunder or purchase a participation required hereby."
"(a)Each Loan made by each Lender shall be evidenced by one or more loan accounts or records maintained by such Lender and by the Agent in the ordinary course of business. The loan accounts or records maintained by the Agent and each Lender shall be conclusive evidence of the amount of the Loans made by the Lenders to the Company and the interest and payments thereon absent manifest error. Any failure so to record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Company hereunder to pay any amount owing with respect to the Loans. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Agent in respect of such matters, the accounts and records of the Agent shall control in the absence of manifest error."
"(b)Upon the request of any Lender made through the Agent, instead of or in addition to loan accounts, the Loans made by each Lender may be evidenced by one or more Revolving Loan Notes or Swing Line Notes, substantially the form of Exhibit B-1 or Exhibit B-2, as applicable, hereto (each such note, a Note). Each Lender shall endorse on the schedules annexed to its Note the date, amount and maturity of each Loan deemed made by it and the amount of each payment of principal made by the Company with respect thereto. Each such Lender is irrevocably authorized by the Company to endorse its Note and each Lenders record shall be conclusive absent manifest error; provided that the failure of a Lender to make, or an error in making, a notation thereon with respect to any Loan shall not limit or otherwise affect the obligations of the Company hereunder or under any such Note to such Lender."
"(d)The Company agrees to pay to each Issuing Bank, with respect to drawings honored under any Letter of Credit issued thereby, interest on the amount paid by such Issuing Bank in respect of each such honored drawing from the date such drawing is honored to but excluding the date such amount is reimbursed by or on behalf of the Company at a rate equal to (i) for the period from the date such drawing is honored to but excluding the applicable Reimbursement Date, the rate of interest otherwise payable hereunder with respect to Revolving Loans that are Base Rate Loans, and (ii) thereafter, a rate which is 2.00% per annum in excess of the rate of interest otherwise payable hereunder with respect to Revolving Loans that are Base Rate Loans."
"(g)Interest on each Loan shall be paid in arrears on each Interest Payment Date for such Loan; provided that (i) interest accrued pursuant to Section 2.10(f) shall be payable on demand of the Agent (upon the instruction of the Required Lenders; provided that no such instruction shall be required in the case of an Event of Default pursuant to Section 8.01(a), (f), or (g)), (ii) upon any repayment or prepayment of any Loan, interest accrued on the principal amount repaid shall be payable on the date of such repayment and (iii) upon any conversion of a Eurodollar Rate Loan before the end of the current Interest Period therefor, interest accrued on such Loan shall be payable on the effective date of such conversion."
"(h)Anything herein to the contrary notwithstanding, the obligations of the Company to any Lender hereunder shall be subject to the limitation that payments of interest shall not be required for any period for which interest is computed hereunder to the extent (but only to the extent) that contracting for or receiving such payment by such Lender would be contrary to the provisions of any law applicable to such Lender limiting the highest rate of interest that may be lawfully contracted for, charged or received by such Lender, and in such event the Company shall pay such Lender interest at the highest rate permitted by applicable law until the total amount of interest due hereunder equals the amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect. In addition, if when the Loans made hereunder are repaid in full the total interest due hereunder (taking into account the increase provided for above) is less than the total amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect, then to the extent permitted by law, the Company shall pay to the Agent an amount equal to the difference between the amount of interest paid and the amount of interest which would have been paid if the highest rate of interest that may be lawfully contracted for, charged or received had at all times been in effect. Notwithstanding the foregoing, it is the intention of Lenders and the Company to conform strictly to any applicable usury laws. Accordingly, if any Lender contracts for, charges, or receives any consideration which constitutes interest in excess of the highest rate of interest that may be lawfully contracted for, charged or received by such Lender, then any such excess shall be"
"(ii)letter of credit fees equal to (1) the Applicable Margin for Revolving Loans that are Eurodollar Rate Loans, times (2) the average aggregate daily maximum amount available to be drawn under all such Letters of Credit (regardless of whether any conditions for drawing could then be met and determined as of the close of business on any date of determination)."
"(a)All payments to be made by the Company under the Loan Documents shall be made without condition or deduction for any defense, set-off, recoupment or counterclaim. Except as otherwise expressly provided in any Loan Document, all payments to be made by the Company under any Loan Document shall be made to the Agent for the account of the Lenders at the Agents Office, and shall be made in dollars and in immediately available funds, no later than 3:00 p.m. (New York City time) on the date specified in such Loan Document. The Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as expressly provided herein) of such payment in like funds as received. Any payment received by the Agent later than 3:00 p.m. (New York City time) shall be deemed to have been received on the following Business Day and any applicable interest or fee shall continue to accrue."
"(ii)if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Agent to the Company to the date such amount is recovered by the Agent (the Compensation Period) at the customary rate set by the Agent for the correction of errors among banks for three Business Days and thereafter at the Base Rate. If such Lender pays such amount to the Agent, then such amount shall constitute such Lenders Loan included in the applicable Credit Extension. If such Lender does not pay such amount forthwith upon the Agents demand therefor, the Agent may make a demand therefor upon the Company, and the Company shall pay such amount to the Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the applicable rate for Base Rate Loans to the applicable Credit Extension. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitments or to prejudice any"
"(ii)the provisions of this Section shall not be construed to apply to (1) any payment made by the Company 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 to any assignee or participant, other than to the Company or any Subsidiary thereof (as to which the provisions of this Section shall apply)."
"(b)The Obligor 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 the Obligor rights of setoff and counterclaim (subject to Section 10.09) with respect to such participation as fully as if such Lender were a direct creditor of the Obligor in the amount of such participation."
"(i)each of the Revolving Loan Lenders shall assign to each of the New Revolving Loan Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the Revolving Loan Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by then-existing Revolving Loan Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments,"
"(c)New Swing Line Loans/Letters of Credit. So long as any Lender is a Defaulting Lender, (i) the Swing Line Lender shall not be required to fund any Swing Line Loans unless it is satisfied that it will have no Fronting Exposure with respect to any Defaulting Lender after giving effect to such Swing Line Loan and (ii) no Issuing Bank shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure with respect to any Defaulting Lender after giving effect thereto."
"(i)all Credit Extensions and all prepayments of Revolving Loans shall continue to be made on a ratable basis among all Revolving Lenders, based on the relative amounts of their Revolving Commitments, until the repayment of the Revolving Loans attributable to the non-extended Revolving Commitments on the applicable Revolving Commitment Termination Date,"
"(d)For the avoidance of doubt, it is understood and agreed that the provisions of Section 2.14 and Section 10.01 will not apply to any payment of interest or fees in respect of any Extended Revolving Commitments that have been extended pursuant to an Extension at a rate or rates different from those paid or payable in respect of Loans of any other Class, in each case as is set forth in the relevant Extension Offer made pursuant to and in accordance with the provisions of this Section 2.17 with respect to such Extensions of Revolving Commitments."
"(g)Promptly following the consummation and effectiveness of any Extension, the Company will furnish to the Agent (who shall promptly furnish to each Lender) written notice setting forth the Extended Maturity Date and material economic terms of the Extension and the aggregate principal amount of each Class of Loans and Commitments after giving effect to the Extension and attaching a copy of the fully executed Extension Amendment."
"(a)Payments Free of Indemnified Taxes and Other Taxes. Except as required by applicable law, any and all payments by or on account of any obligation of the Obligor hereunder or under any other Loan Document shall be made free and clear of and without deduction or withholding for any Indemnified Taxes or Other Taxes, provided that if any applicable withholding agent shall be required by applicable law to deduct or withhold any Indemnified Taxes (including any Other Taxes) from such payments, then (i) the sum payable by the Obligor shall be increased as necessary so that after all required deductions or withholdings have been made (including deductions applicable to additional"
"where such Lender is a partnership (for U.S. federal income tax purposes) or otherwise not a beneficial owner (e.g., where such Lender has sold a participation), IRS Form W-8IMY (or any successor thereto) and all required supporting documentation (including, where one or more of the underlying beneficial owner(s) is claiming the benefits of the Portfolio Interest Exemption, a Tax Status Certificate of such beneficial owner(s); provided that, if the Foreign Lender is a partnership and not a participating Lender, the Tax Status Certificate from the beneficial owner(s) may be provided by the Foreign Lender on behalf of the beneficial owner(s)), or "
"(C) 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 Company and the Agent at the time or times prescribed by"
"notice of such fact and demand from such Lender (with a copy to the Agent), prepay in full such Eurodollar Rate Loans of that Lender then outstanding, together with interest accrued thereon and amounts required under Section 3.04, either on the last day of the Interest Period thereof, if the Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if the Lender may not lawfully continue to maintain such Eurodollar Rate Loan. If the Company is required to so prepay any Eurodollar Rate Loan, then concurrently with such prepayment, the Company shall borrow from the affected Lender, in the amount of such prepayment, a Base Rate Loan."
"(b)If any Lender reasonably and in good faith shall have determined that (i) the introduction of any Capital Adequacy Regulation, (ii) any change in any Capital Adequacy Regulation, (iii) any change in the interpretation or administration of any Capital Adequacy Regulation by any central bank or other Governmental Authority charged with the interpretation or administration thereof, or (iv) compliance by the Lender (or its Lending Office) or any corporation controlling the Lender with any Capital Adequacy Regulation, in each case after the Closing Date, affects or would affect the amount of capital required or expected to be maintained by the Lender or any corporation controlling the Lender and (taking into consideration such Lenders or such corporations policies with respect to capital adequacy and such Lenders desired return on capital) determines that the amount of such capital is increased as a consequence of its Commitment, loans, credits or obligations under this Agreement, then, thirty (30) days after written demand by such Lender to the Company through the Agent, the Company shall pay to the Lender, from time to time as specified by the Lender, additional amounts sufficient to compensate the Lender for such increase; provided that such Lender shall only be entitled to seek such additional amounts"
"(f)The Agent shall be satisfied (and may, but shall not be obligated to, rely on the receipt of a certificate from any Company or any Affiliate thereof for all or part of such purpose) that the Senior Notes shall have been issued in accordance with the Senior Notes Indenture, and the Company shall have received the net proceeds thereof."
"(h)The Agent shall have received (i) a certificate signed by a Responsible Officer on behalf of the Company, dated as of the Closing Date, confirming that the Company and its Subsidiaries have received all required approvals of the transactions contemplated hereby and by the other Loan Documents, including the Transactions, from each applicable Governmental Authority and (ii) a solvency certificate executed by the Chief Financial Officer of the Company, substantially in the form of Exhibit I."
"(k)The Company and each of its Subsidiary shall have provided the documentation and other information to the 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 Closing Date."
"Section 5.04Binding Effect. This Agreement has been duly executed and delivered by the Company and constitutes, and each other Loan Document to which the Obligor is to be a party, when executed and delivered by the Obligor, will constitute, a legal, valid and binding obligation of the Company or the Obligor, as the case may be, in each case enforceable against the Company or the Obligor, as the case may be, in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the enforcement of creditors rights generally or by equitable principles relating to enforceability, regardless of whether considered in a proceeding in equity or in law."
"Section 5.06No Default. No Default or Event of Default has occurred and is continuing. Without limiting the foregoing, no Default would result from the consummation of the Transactions. As of the Closing Date, neither the Company nor any Subsidiary is in default under or with respect to any Contractual Obligation in any respect that, individually or together with all such defaults, could reasonably be expected to have a Material Adverse Effect."
"(b)Except as set forth on Schedule 5.07, there are no pending or, to the knowledge of the Company, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. To the knowledge of the Company, there has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that could reasonably be expected to have a Material Adverse Effect."
"(c)Except for occurrences or circumstances that individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect: (i) except as set forth on Schedule 5.07, since December 31, 2014, no ERISA Event has occurred or is reasonably expected to occur; (ii) except as set forth on Schedule 5.07, as of the Closing Date, no Single Employer Pension Plan has any Unfunded Pension Liability; (iii) the Unfunded Pension Liabilities, if any, of all Single Employer Pension Plans do not exceed, in the aggregate, $25,000,000; (iv) none of the Company, any of its Subsidiaries or any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred that, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) none of the Company, any of its Subsidiaries or any ERISA Affiliate has knowingly engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA."
"Section 5.09Title to Properties. The Company and each Subsidiary have good legal title in fee simple or rights in and power to transfer, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of their respective businesses, except for any failure to have such good title and any defects in title or interests as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. As of the Closing Date, the property of the Company and its Subsidiaries is subject to no Liens, other than Liens permitted under Section 7.02."
"Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with SAP, would have been required to have been disclosed or provided for in such Historical Statutory Statement."
"(a)All properties owned or leased by the Company or any of its Subsidiaries have been, and continue to be, owned or operated by the Company and its Subsidiaries in compliance with all Environmental Laws, except where failure to so comply could not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect."
"Section 5.15Insurance Licenses. No License of the Company or any Insurance Subsidiary, the loss of which individually or in the aggregate could reasonably be expected to have a Material Adverse Effect, is the subject of a proceeding for suspension or revocation. To the Companys knowledge, there is no sustainable basis for such suspension or revocation, and no such suspension or revocation has been threatened by any Governmental Authority."
"(ii) deals in, or otherwise engages in any transaction related to, any property or interests in property blocked pursuant to any applicable Economic Sanctions Laws or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the applicable prohibitions set forth in any Economic Sanctions Laws."
"Section 5.21Surplus Debenture Interest and Dividends. The Company has not received any notice from NAIC, any other Governmental Authority or any other insurance regulatory authority that its Insurance Subsidiaries will not be permitted to pay dividends or Surplus Debenture interest, and has no reason to believe that such notice is forthcoming, in each case except for notices which could not reasonable be expected to have a Material Adverse Effect."
"(f)within 100 days after the close of each Fiscal Year of each Insurance Subsidiary, a copy of the Statement of Actuarial Opinion and Management Discussion and Analysis for each such Insurance Subsidiary that is provided to the applicable Department (or equivalent information should such Department no longer require such a statement) as to the adequacy of reserves of such Insurance Subsidiary, such opinion to be in the format prescribed by the insurance code of the state of domicile of such Insurance Subsidiary."
"The Company hereby acknowledges that (a) the Agent will make available information and projections (collectively, Company Materials) to the Lenders by posting the Company Materials on IntraLinks or another similar secure electronic system (the Platform) and (b) certain of the Lenders may be public-side Lenders (i.e., Lenders that do not wish to receive material non- public information with respect to the Company, its Subsidiaries or their respective securities) (each, a Public Lender). The Company hereby agrees that (w) it will use commercially reasonable efforts to identify that portion of the Company Materials that may be distributed to the Public Lenders and that all such Company Materials shall be clearly and conspicuously marked PUBLIC, which, at a minimum, shall mean that the word PUBLIC shall appear prominently on the first page thereof; (x) by marking Company Materials PUBLIC, the Company shall be deemed to have authorized the Agent and the Lenders to treat such Company Materials as not containing any material non- public information with respect to the Company, its Subsidiaries or their respective securities for purposes of United States federal and state securities laws, it being understood that such Company Materials are subject to Section 10.08; (y) all Company Materials marked PUBLIC are permitted to be made available through a portion of the Platform designated Public Lender; and (z) the Agent shall be entitled to treat any Company Materials that are not marked PUBLIC as being suitable only for posting on a portion of the Platform not designated Public Lender."
"(c)of the filing or commencement of, or the occurrence of any development in, any litigation or proceeding that seeks to enjoin, prohibit, discontinue or otherwise impacts (i) the validity or enforceability of this Agreement or any of the other Loan Documents or (ii) the transactions contemplated hereby or thereby and, in the case of clause (ii), that could reasonably be expected to have a Material Adverse Effect;"
"(a)preserve and maintain in full force and effect its existence and good standing under the laws of its state or jurisdiction of incorporation or organization, as applicable; provided no Subsidiary (other than the Company) shall be required to preserve any such existence or good standing if such Persons board of directors (or similar governing body) shall determine that the preservation thereof is no longer desirable in the conduct of the business of such Person, and that the loss thereof could not reasonably be expected to result in a Material Adverse Effect; and"
"Section 6.16Maintenance of Properties. The Company and each Subsidiary will, and will cause each of its Subsidiaries to, maintain or cause to be maintained in good repair, working order and condition, ordinary wear and tear excepted, all material properties used or useful in the business of the Company and its Subsidiaries and from time to time will make or cause to be made all appropriate repairs, renewals and replacements thereof."
"(h)Indebtedness or Guarantees incurred (i) in respect of workers compensation claims, payment obligations in connection with health or other types of social security benefits, unemployment or other insurance obligations, reclamation and statutory obligations, (ii) in connection with the financing of insurance premiums or self-insurance obligations or take-or- pay obligations contained in supply agreements, and (iii) in respect of guarantees, warranty or contractual service obligations, indemnity, bid, performance, warranty, release, appeal, surety and similar bonds, letters of credit and bankers acceptances for operating purposes or to secure any Indebtedness or other obligations referred to in clauses (a) through (g) or this clause (h), payment (other than for payment of Indebtedness) and completion guarantees, in each case provided or incurred (including Guarantees thereof) in the ordinary course of business; or"
"(m)attachment or judgment Liens not constituting an Event of Default under Section 8.01(i) and Liens securing appeal or surety bonds related to such judgment, so long as any appropriate legal proceedings that may have been duly initiated for the review of such judgment have not been finally terminated or the period within which such proceedings may be initiated has not expired;"
"Section 7.12Minimum Consolidated Net Worth. The Company shall maintain at all times Consolidated Net Worth equal to not less than the sum of (a) $2,674,000,000 plus (b) an amount equal to 50% of the Net Equity Proceeds received by the Company from the issuance and sale of Equity Interests of the Company, including the conversion of debt securities of the Company into Equity Interests after the first fiscal quarter after the Closing Date."
"(ii)the foregoing shall not apply to restrictions and conditions existing on the date hereof and identified on Schedule 7.17 (but shall apply to any amendment or modification, or any extension or renewal, of any such restriction or condition that has the effect of making such restriction or condition materially more restrictive),"
"(b)Representation or Warranty. Any representation or warranty by the Company or any of its Subsidiaries made or deemed made herein or in connection with any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or contained in any certificate, document or financial or other statement by the Company, any Subsidiary or any Responsible Officer, furnished at any time in connection with this Agreement or in connection with any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, is incorrect in any material respect on or as of the date made or deemed made; or"
"(1)fails to make any payment in respect of any Indebtedness or Contingent Obligation (other than in respect of Swap Contracts), having an aggregate principal amount of more than $75,000,000 (in the aggregate for all such Indebtedness and Contingent Obligations), when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise); or"
"(2)fails to perform or observe any other condition or covenant, or any other event shall occur or condition exist, under any agreement or instrument relating to any such Indebtedness (and, solely in the case of a failure to comply with any financial statement or other information delivery or reporting requirement or in the case of the entry of any judgment or decree, so long as such judgment or decree constitutes a Default but not an Event of Default under Section 8.01(i), such failure or event continues after the applicable grace or notice period, if any, specified in the relevant document on the date of such failure or event) if the effect of such failure, event or condition is to cause, or to permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, such Indebtedness to be declared to be due and payable prior to its stated maturity, or, in the case of any such Indebtedness consisting of Contingent Obligations, to become payable or cash collateral in respect thereof to be demanded; or"
"(f)Insolvency; Voluntary Proceedings. The Company or any Significant Subsidiary (i) generally fails to pay, or admits in writing its inability to pay, its debts as they become due, subject to applicable grace periods, if any, whether at stated maturity or otherwise; (ii) voluntarily ceases to conduct its business in the ordinary course; (iii) commences any Insolvency Proceeding with respect to itself; (iv) applies for or consents to the appointment of a receiver, trustee, custodian, conservator, liquidator, mortgagee in possession (or agent therefor), or other similar Person for itself or for a substantial part of its assets, or (v) takes any action to effectuate or authorize any of the foregoing; or"
"(i)Material Judgments. One or more judgments or decrees shall be entered against the Company or any of its Subsidiaries involving in the aggregate a liability (not paid or fully covered by insurance as to which the relevant insurance company has not denied coverage) of $75,000,000 or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 30 days from the entry thereof, or any action shall be taken by a judgment creditor to attach or levy upon any asset of the Company or any of its Subsidiaries to enforce any such judgment or decree; or"
"(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, whereupon such Loans, all interest accrued and unpaid thereon and all other amounts owing or payable hereunder or under any other Loan Document shall become immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Company; and"
"(c)shall, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, shall be liable for the failure to disclose, any information relating to the Company or any of its Affiliates that is communicated to or obtained by the Person serving as the Agent, any Agent-Related Person or any of their respective Affiliates in any capacity."
"Section 9.13No Reliance on Agents Customer Identification Program. Each of the Lenders and Issuing Bank acknowledges and agrees that neither such Lender or Issuing Bank nor any of its Affiliates, participants or assignees, may rely on the Agent to carry out such Lenders, Issuing Banks, Affiliates, participants or assignees customer identification program, or other obligations required or imposed under or pursuant to the USA PATRIOT Act or the regulations thereunder, including the regulations contained in 31 CFR 103.121 (as hereafter amended or replaced, the CIP Regulations), or any other anti-terrorism law, including any programs involving any of the following items relating to or in connection with any of the Borrower, its Affiliates or its agents, this Agreement, the other Loan Documents or the transactions hereunder or contemplated hereby: (a) any identity verification procedures, (b) any record keeping, (c) comparisons with government lists, (d) customer notices or (e) other procedures required under the CIP Regulations or such other laws."
"(l)alter the required application of any repayments or prepayments pursuant to Section 2.09(d) or (e) without the consent of Swing Line Lender or the consent of Lenders holding more than 50% of the aggregate Revolving Exposure, which, is being allocated a lesser repayment or prepayment as a result thereof; provided that Required Lenders may waive, in whole or in part, any prepayment so long as the application, as between the Swing Line Lender and Revolving Lenders, of any portion of such prepayment which is still required to be made is not altered;"
"All such notices and other communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail, four Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile or electronic mail, when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail (which form of delivery is subject to the provisions of subsection (c) below), when delivered; provided that notices and other communications to the Agent pursuant to Article 2 shall not be effective until actually received by such Person. In no event shall a voicemail message be effective as a notice, communication or confirmation hereunder."
"completeness of the Approved Electronic Communications or the Platform and each expressly disclaims liability for errors or omissions in the Platform and the Approved Electronic Communications. 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 the Agent-Related Persons in connection with the Platform or the Approved Electronic Communications."
"(ii)in the case of assignments of Revolving Loans or Revolving Commitments, such assignment (except in the case of assignments made by or to any Arranger), shall be consented to by each of the Company, Agent, any Issuing Bank and the Swing Line Lender (such consent not to be (x) unreasonably withheld or delayed or, (y) in the case of the Company, required at any time an Event of Default shall have occurred and then be continuing or such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund); provided that (A) the Company shall be deemed to have consented to any such assignment of Revolving Loans or Revolving Commitments unless it shall object thereto by written notice to the Agent within ten (10) Business Days after having received notice thereof and (B) each such assignment pursuant to this Section 10.6(c)(ii) shall be in an aggregate amount of not less than (w) $2,500,000 with respect to the assignment of the Revolving Commitments and the Revolving Loans, (x) such lesser amount as agreed to by the Company, the Agent, any Issuing Bank and the Swing Line Lender, (y) the aggregate amount of the Loans of the assigning Lender with respect to the Class being assigned or (z) the amount assigned by an assigning Lender to an Affiliate or Approved Fund of such Lender"
"(e)Participations. Any Lender may at any time, without the consent of, or notice to, the Company or the Agent, sell participations to any Person (other than a natural person or the Company or any of the Companys Affiliates or Subsidiaries) (each, a Participant) in all or a portion of such Lenders rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the 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) the Company, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lenders rights and obligations under this Agreement. 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, waiver or other modification described in the first proviso to Section 10.01 that directly affects such Participant. Except to the extent limited by Section 10.07(f), the Company agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.03 and 3.04 (subject to the limitations and requirements of such Sections (including Section 3.01(e) and Section 3.01(f) (it being understood that the documentation required under Section 3.01(e) and Section 3.01(f) shall be delivered to the participating Lender)) and Section 3.07, as if such Participant were a Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.07(b). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.09 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.14 as though it were a Lender."
"(i)to its Affiliates and to their respective officers, directors, partners, members, employees, legal counsel, independent auditors and other advisors, experts or agents who need to know such information and on a confidential basis (and to other Persons authorized by a Lender or the Agent to organize, present or disseminate such information in connection with disclosures otherwise made in accordance with this Section 10.08); provided that such Affiliates and other Persons are not insurance companies;"
"In addition, the Agent and each Lender may disclose the existence of this Agreement and the information about this Agreement to market data collectors, similar services providers to the lending industry, and service providers to the Agent and the Lenders in connection with the administration and management of this Agreement and the other Loan Documents. In the case of confidential information received from the Company or any Subsidiary after the date hereof, such information shall be clearly identified at the time of delivery as confidential. In the case of clause (b) and (c), the disclosing party shall give notice of such disclosure to the Company, to the extent not prohibited by any Requirement of Law."
"Section 10.11Effectiveness; Counterparts. This Agreement shall become effective upon the execution of a counterpart hereof by each of the parties hereto and receipt by the Company and the Agent of written notification of such execution and authorization of delivery thereof. This Agreement may be executed in any number of separate counterparts, each of which, when so executed, shall be deemed an original, and all of said counterparts taken together shall be deemed to constitute but one and the same instrument. Delivery of an executed counterpart of this Agreement by facsimile transmission or other electronic transmission (e.g., .pdf or .tif) shall be effective as delivery of a manually executed counterpart hereof."
"Section 10.16Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS."
"Section 10.21No Fiduciary Duty. The Agent, each Lender and their Affiliates (collectively, solely for purposes of this paragraph, the Lenders), may have economic interests that conflict with those of the Obligor, its stockholders and/or its affiliates. The Obligor agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the one hand, and the Obligor, its stockholders or its affiliates, on the other. The Obligor acknowledge and agree that (i) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arms-length commercial transactions between the Lenders, on the one hand, and the Obligor, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of the Obligor, its stockholders or its affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise the Obligor, its stockholders or its Affiliates on other matters) or any other obligation to the Obligor except the obligations expressly set forth in the Loan Documents and (y) each Lender is acting solely as principal and not as the agent or fiduciary of the Obligor, its management, stockholders, creditors or any other Person. The Obligor acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. The Obligor agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Obligor, in connection with such transaction or the process leading thereto."
"(c) One percent above the ICE Benchmark Administration Limited LIBOR Rate applicable to Dollars for a period of one month appearing on Reuters LIBOR01 Page(or other commercially available source providing such quotations as designated by the Administrative Agent from time to time) at approximately 11:00 a.m.London time on such day provided, that if the rate referenced in this clause (c)is less than zero, such rate shall be deemed to be zero for purposes of this Agreement."
"Applicable Margin means, (a)with respect to Alternate Base Rate Advances, the percentage rate per annum which is applicable at such time with respect to Alternate Base Rate Advances as set forth in the Pricing Schedule and (b)with respect to Eurocurrency Advances, the percentage rate per annum which is applicable at such time with respect to Eurocurrency Advances as set forth in the Pricing Schedule."
"Change in Law means the occurrence, after the date of this Agreement, of any of the following: (a)the adoption or taking effect of any law, rule, regulation or treaty, (b)any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c)the making or issuance of any request,"
"Competitor means, as of any date, any Person that is (a)a competitor of the Borrowers and their Subsidiaries or (b)any Affiliate of a competitor of the Borrowers and their Subsidiaries, which Person, in each case, has been designated by the Parent as a Competitor by written notice to the Administrative Agent and the Lenders (including by posting such notice to the Platform) not less than five Business Days prior to such date; provided that Competitor shall exclude any Person that the Parent has designated as no longer being a Competitor by written notice delivered to the Administrative Agent from time to time."
"Defaulting Lender means, subject to Section2.21(b), any Lender that (a)has failed to (i)fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Parent 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 the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, (b)has notified the Parent or the Administrative Agent 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 Business Days after written request by the Administrative Agent or the Parent, to confirm in writing to the Administrative Agent and the Parent 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 Parent), 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 (1)the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority or (2)in the case of a solvent Lender, 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 Lender is subject to home jurisdiction supervision if applicable law requires that such appointment not be publicly disclosed, so long as, in the case of clause (1)and clause (2), such action 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 the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a)through (d)above shall be"
"Eurocurrency Base Rate means (a)with respect to a Eurocurrency Advance denominated in Dollars or Sterling for the Interest Period applicable to such Eurocurrency Advance, the applicable ICE Benchmark Administration Limited LIBOR Rate for deposits in Dollars or Sterling, as applicable, appearing on Reuters LIBOR01 Page(the Published LIBOR Rate) as of 11:00 a.m.(London time) two (2)Business Days prior to the first day of such Interest Period, and having a maturity equal to such Interest Period, provided that, if Reuters LIBOR01 Pageis not available to the Administrative Agent for any reason, the applicable Eurocurrency Base Rate for the relevant Interest Period shall instead be the applicable ICE Benchmark Administration Limited LIBOR Rate for deposits in Dollars or Sterling, as applicable, as reported by any other generally recognized financial information service as of 11:00 a.m.(London time) two (2)Business Days prior to the first day of such Interest Period, and having a maturity equal to such Interest Period and (b)with respect to a Eurocurrency Advance denominated in Euro, the EURIBO Rate; provided that, if the Eurocurrency Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement; provided, further that, if such rate is not available at such time for any reason and such circumstances are unlikely to be temporary, then the Published LIBO Rate for such Interest Period shall be (x)a comparable successor or alternative interbank rate for deposits in Dollars that is, at such time, broadly accepted by the syndicated loan market in lieu of the Published LIBO Rate and is reasonably acceptable to the Parent and the Administrative Agent; provided, that such comparable or successor rate shall not be approved unless the Administrative Agent shall not have received, within five (5)Business Days after the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment or (y)solely if no such broadly accepted comparable successor interbank rate exists at such time, a successor or alternative index rate as the Administrative Agent and the Parent may determine with the consent of the Required Lenders."
"Federal Funds Effective Rate means, for any day, an interest rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System on such day, as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations at approximately 10:00 a.m.(New York time) on such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by the Administrative Agent in its sole discretion; provided, that if the Federal Funds Effective Rate is less than zero, such rate shall be deemed to be zero for purposes of this Agreement."
"Lien means any security interest, lien (statutory or other), mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance or preference, priority or other security agreement or preferential 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)."
Regulation U means Regulation U 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 and certain other Persons for the purpose of purchasing or carrying margin stocks applicable to member banks of the Federal Reserve System and certain other Persons.
"TARGET2 Day means any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET2) System (or, if such payment system ceases to be operative, such other payment system (if any) determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro."
"Wholly-Owned Subsidiary of a Person means (a)any Subsidiary all of the outstanding voting securities (other than (i)directors qualifying shares and (ii)nominal shares issued to foreign nationals to the extent required by applicable law) of which 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 (b)any partnership, association, joint venture, limited liability company or similar business organization 100% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled (other than (i)directors qualifying shares and (ii)nominal shares issued to foreign nationals to the extent required by applicable law). Unless otherwise provided, all references herein to a Wholly-Owned Subsidiary shall mean a Wholly-Owned Subsidiary of the Parent."
"On each Increase Date, upon fulfillment of the conditions set forth in the immediately preceding sentence of this Section2.19(c), the Administrative Agent shall notify the Lenders (including, without limitation, each Assuming Lender) and the Parent, on or before 1:00 p.m.(New York time), by telecopier, of the occurrence of the Commitment Increase to be effected on such Increase Date and shall record in the Register the relevant information with respect to each Increasing Lender and each Assuming Lender on such date. Each Increasing Lender and each Assuming Lender shall, before 2:00 p.m.(New York time) on the Increase Date, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans to be held pro rata by the Lenders in accordance with the Commitments."
"2.20. Replacement of Lender. If (a)any Borrower is required pursuant to Section3.1, 3.2 or 3.5 to pay any Indemnified Taxes or make any additional payment to any Lender or any Governmental Authority for the account of any Lender, (b)any Lenders obligation to make or continue, or to convert Alternate Base Rate Advances into, Eurocurrency Advances shall be suspended pursuant to Section3.3, (c)any Lender is a Defaulting Lender or (d)any Lender is a Non-Consenting Lender (any Lender so affected, an Affected Lender), the Parent may elect, if such amounts continue to be charged or such suspension or status as a Defaulting Lender or Non-Consenting Lender is still effective, to replace such Affected Lender as a Lender party to this Agreement, provided that no Default or Unmatured Default shall have occurred and be continuing at the time of such replacement, and provided further that, concurrently with such replacement, (i)another bank or other entity which is an Eligible Assignee shall agree, as of such date, to purchase for cash the Advances at par and other Obligations due to the Affected Lender pursuant to an assignment substantially in the form of ExhibitC and to become a Lender for all purposes under this Agreement and to assume all obligations of the Affected Lender to be terminated as of such date and to comply with the requirements of Section12.2 applicable to assignments, and (ii)the Borrowers and/or the assignee shall pay to such Affected Lender in same day funds on the day of such replacement (A)all interest, fees and other amounts then accrued but unpaid to such Affected Lender by the Borrowers hereunder to and including the date of termination, including without limitation payments due to such Affected Lender under Sections 3.1, 3.2 and 3.5, and (B)an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section3.4 had the Loans of such Affected Lender been prepaid on such date rather than sold to the replacement Lender."
(iii) Certain Fees. Each Defaulting Lender shall be entitled to receive a Facility Fee for any period during which that Lender is a Defaulting Lender only to the extent allocable to the outstanding principal amount of the Loans funded by it (and the Parent shall not be required to pay such fee that otherwise would have been required to have been paid to such Defaulting Lender).
"(c) Notification by Agent. The Administrative Agent shall notify the Parent of each Lenders determination under this Sectionno later than the date 15 days (or such later date as the Administrative Agent may agree) prior to the applicable Anniversary Date (or, if such date is not a Business Day, on the next preceding Business Day)."
"(e) Minimum Extension Requirement; Conditions to Effectiveness of Extensions. If (and only if) the total of the Commitments of the Lenders that have agreed to extend their Facility Termination Date and the additional Commitments of the Assuming Lenders shall be more than 50% of the Aggregate Commitment in effect immediately prior to the applicable Anniversary Date, then, effective as of such Anniversary Date, the Facility Termination Date of each extending Lender and of each Assuming Lender shall be extended to the date falling one year after the Facility Termination Date in effect for such Lenders (except that, if such date is not a Business Day, such Facility Termination Date as so extended shall be the next preceding Business Day) and each Assuming Lender shall thereupon become a Lender for all purposes of this Agreement; provided, however on the date of any request by the Parent for an extension of the Facility Termination Date and on the related Anniversary Date the applicable conditions set forth in ArticleIV shall be satisfied."
"and the result of any of the foregoing is to increase the cost to such Lender or applicable Lending Installation of making, funding, continuing, converting into or maintaining its Eurocurrency Loans or Commitment or to reduce the return received by such Lender or applicable Lending Installation in connection with such Eurocurrency Loans or Commitment, then, within fifteen (15) days of demand by such Lender as provided in Section3.6, the Parent or the applicable Borrower shall pay such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction in amount received."
"(d) (i) Any Lender or Administrative Agent that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to each Borrower and the Administrative Agent, at the time or times reasonably requested by any Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by any Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender or Administrative Agent, if reasonably requested by any Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by any Borrower or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not it 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 Sections 3.5(d)(ii)(A), 3.5(d)(ii)(B)and 3.5(d)(ii)(D)below) shall not be required if in the Lenders or Administrative Agents reasonable judgment, as applicable, such completion, execution or submission would subject such Lender or Administrative Agent to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender or Administrative Agent."
"(A) each Lender and Administrative Agent that is a U.S. Person shall deliver to each U.S. Borrower and the Administrative Agent, on or prior to the date it becomes a party to this Agreement (and from time to time thereafter upon the reasonable request of any U.S. Borrower or the Administrative Agent), executed originals of IRS FormW-9 certifying that it is exempt from U.S. federal backup withholding tax;"
"If a Lender fails to indicate its status in accordance with this paragraph (h)then such Lender shall be treated for the purposes of this Agreement by the Administrative Agent and each Loan Party as if it was not a UK Qualifying Lender until such time as it notifies the Administrative Agent which category applies (and the Administrative Agent upon receipt of such notification, shall inform the relevant UK Borrower). For the avoidance of doubt, an Assumption Agreement or Assignment and Assumption shall not be invalidated by any failure of a Lender to comply with this paragraph (h)."
"(iii)If a UK Treaty Lender has not confirmed its scheme reference number and jurisdiction of tax residence in accordance with Section3.5(e)(ii)above, no UK Borrower shall make a UK Borrower DTTP Filing or file any other form relating to the HMRC DT Treaty Passport scheme in respect of that Lenders Commitment or its participation in any Loan unless the UK Treaty Lender otherwise agrees."
"(b) Charter Documents; Good Standing Certificates. Copies of the certificate of incorporation of such Designated Subsidiary, together with all amendments thereto, certified by the appropriate governmental officer in its jurisdiction of incorporation, together with a good standing certificate issued by the Secretary of State or comparable official of the jurisdiction of its organization and such other jurisdictions as shall be requested by the Administrative Agent as well as any other information required by Section326 of the USA PATRIOT ACT or necessary for the Administrative Agent or any Lender to verify the identity of such Designated Subsidiary as required by Section326 of the USA PATRIOT ACT."
"(b) The representations and warranties contained in ArticleV are true and correct (in all respects to the extent qualified by material or material adverse effect and in all material respects to the extent not so qualified) as of such Anniversary Date, both immediately before and immediately after giving effect to such extension of the Facility Termination Date (or, to the extent that any such representation and warranty specifically refers to an earlier date, as of such earlier date)."
"5.3. Compliance with Laws. Each Loan Party and its Subsidiaries have complied in all material respects with all the requirements of applicable statutes, rules, regulations, orders and restrictions of any domestic or foreign government, or any instrumentality or agency thereof having jurisdiction over the conduct of their respective businesses or the ownership of their respective properties except (i)if such requirement of statute, rule, regulation, order or restriction is being contested in good faith by appropriate proceedings or (ii)where the failure to so comply"
"5.4. Governmental Consents. No order, consent, approval, qualification, license, authorization, or validation of, or filing, recording or registration with, or exemption by, or other action in respect of, any court, governmental or public body or authority, or any subdivision thereof, any securities exchange or other Person is required to authorize in connection with the execution, delivery, consummation or performance of any of the Loan Documents or the application of the proceeds of the Loans, except for such orders, consents, approvals, qualifications, licenses, authorizations, or validations of, or filings, recordings or registrations, exemptions, or other actions that have already been taken, given or received or the failure of which to take, give or receive could not reasonably be expected to have a Material Adverse Effect. No Loan Party or any Subsidiary is in default under or in violation of any foreign, federal, state or local law, rule, regulation, order, writ, judgment, injunction, decree or award binding upon or applicable to such Loan Party or such Subsidiary, in each case the consequence of which default or violation would reasonably be expected to have a Material Adverse Effect."
"5.7. Taxes. Each Loan Party and its Subsidiaries have filed or caused to be filed all United States federal, United Kingdom and other material Tax returns which are required to be filed by them and have paid all Taxes due pursuant to said returns or pursuant to any assessment received by such Loan Party or Subsidiary, except such Taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided in accordance with generally accepted accounting principles or which would not reasonably be expected to have a Material Adverse Effect."
"5.10. Regulation U. Margin Stock constitutes less than 25% of those assets of the Loan Parties and their Subsidiaries, which are subject to any limitation on sale, pledge or other restriction hereunder. No Loan Party or any Subsidiary is engaged, principally, or as one of its important activities, in the business of extending, or arranging for the extension of, credit for the purpose of purchasing or carrying Margin Stock. No part of the proceeds of any Loan will be used in a manner which would violate, or result in a violation of, Regulation U or for carrying any Margin Stock or any other purpose that might cause any Advance to be considered a purpose credit within the meaning of Regulations T, U or X. Neither the making of any Advance hereunder nor the use of the proceeds thereof will violate or be inconsistent with the provisions of Regulation U."
"5.15. Insurance Licenses. No material license, permit or authorization of any Loan Party or any Subsidiary to engage in the business of insurance or insurance-related activities is the subject of a proceeding for suspension or revocation, except where such suspension or revocation would not reasonably be expected to have a Material Adverse Effect."
"respect to any Plan, a statement, signed by its chief financial officer or treasurer, describing said Termination Event and the action which it proposes to take with respect thereto; provided that no such notice shall be required to be given unless such Termination Event could reasonably be expected to result in liabilities of the Parent or any of its Subsidiaries in excess of $100,000,000."
"6.2. Use of Proceeds. The Parent will, and will cause each Subsidiary of the Parent to, use the proceeds of the Credit Extensions for general corporate purposes and the financing of transactions permitted hereunder. The Parent will not, nor will it permit any Subsidiary to, use any of the proceeds of the Advances to purchase or carry any margin stock (as defined in Regulation U). No Borrower or any of its Subsidiaries shall directly, or to the knowledge of an officer of the Parent, indirectly use the proceeds of any Borrowing in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of"
"6.5. Taxes. The Parent will, and will cause each Subsidiary to, pay when due all material Taxes required to be paid by it, except those which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves have been set aside or nonpayment of which would not reasonably be expected to have a Material Adverse Effect."
(j) Liens over and limited to the balance of credit balances on bank accounts of any Loan Party and its Subsidiaries created in order to facilitate the operation of such bank accounts and other bank accounts of such Loan Party and its Subsidiaries on a net balance basis with credit balances and debit balances on the various accounts being netted off for interest purposes;
"(n) Liens on Property of the Parent or any of its Subsidiaries created solely for the purpose of securing purchase money indebtedness or Capitalized Leases and representing or incurred to finance, refinance or refund the purchase price of Property; provided that no such Lien shall extend to or cover other Property of the Parent or such Subsidiary other than the respective Property so acquired or leased;"
"7.4. Other Defaults. The breach by any Loan Party (other than a breach which constitutes a Default under Section7.1, 7.2 or 7.3) of any of the terms or provisions of this Agreement which is not remedied within thirty (30) days after receipt of written notice from the Administrative Agent or any Lender."
"7.9. Judgments. Any Loan Party or any of its Significant Subsidiaries shall fail within thirty (30) days to pay, bond or otherwise discharge any one or more final judgments or orders for the payment of money an aggregate amount in excess of $100,000,000, which is not stayed on appeal or otherwise being appropriately contested in good faith and as to which no enforcement actions have been commenced; provided, however, that any such judgment or order shall not be a Default under this Section7.9 to the extent (i)such judgment or order is covered by a valid and binding policy of insurance between the defendant and the insurer covering payment thereof and (ii)if such insurer, which shall be rated at least A by A.M.Best Company, has been notified of, and has not disputed the claim made for payment of, the amount of such judgment or order."
"(a) Extend the Facility Termination Date with respect to such Lender, compromise or forgive the principal amount of any Loan, or reduce the rate of interest or compromise or forgive payment of interest on any Loan, or reduce the amount of, or compromise or forgive payment of, any fee payable hereunder; provided that a waiver of a Default or Unmatured Default shall not constitute a waiver or amendment under this clause (a);"
"9.4. Entire Agreement. The Loan Documents embody the entire agreement and understanding among the Parent, the other Loan Parties, the Administrative Agent and the Lenders and supersede all prior agreements and understandings among the Parent, the other Loan Parties, the Administrative Agent and the Lenders relating to the subject matter thereof other than the fee letter described in Section10.10."
"9.5. Several Obligations; Benefits of this Agreement. The respective obligations of the Lenders hereunder are several and not joint and no Lender shall be the partner or agent of any other (except to the extent to which the Administrative Agent is authorized to act as such). The failure of any Lender to perform any of its obligations hereunder shall not relieve any other Lender from any of its obligations hereunder. This Agreement shall not be construed so as to confer any right or benefit upon any Person other than the parties to this Agreement and their respective successors and assigns; provided, however, that the parties hereto expressly agree that each of the Arrangers shall enjoy the benefits of the provisions of Sections 9.6, 9.10 and 10.09 to the extent specifically set forth therein and shall have the right to enforce such provisions on its own behalf and in its own name to the same extent as if it were a party to this Agreement."
"(iii) 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."
"(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, (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 Unmatured 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 ArticleIV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent."
"10.6. Resignation of Administrative Agent. (a)The Administrative Agent may at any time give notice of its resignation to the Lenders and the Parent. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with the consent of the Parent unless a Default has occurred and is continuing (and otherwise in consultation with the Parent), to appoint a successor, which shall be a commercial bank having capital and retained earnings of at least"
"11.1. Setoff. If a Default shall have occurred and be continuing, each Lender and each its 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 or any such Affiliate, to or for the credit or the account of the Parent or any other Loan Party against any and all of the obligations of the Parent or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or its Affiliates, irrespective of whether or not such Lender or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Parent or such Loan Party may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender 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 Section2.21 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 its Affiliates under this Sectionare in addition to other rights and remedies (including other rights of setoff) that such Lender or its Affiliates may have. Each Lender agrees to notify the Parent 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."
"(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; provided 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."
"(vii) Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations, or other compensating actions, including funding, with the consent of the Parent and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x)pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent and each other Lender hereunder (and interest accrued thereon), and (y)acquire (and fund as appropriate) its full pro rata share of all Loans in accordance with its pro rata share. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs."
"(iv) The Administrative Agent shall have the right, and the Parent hereby expressly authorizes the Administrative Agent, to (A)post the list of Competitors provided by the Parent and any updates thereto from time to time (collectively, the Competitor List) on the Platform, including that portion of the Platform that is designated for public side Lenders and/or (B)provide the Competitor List to each Lender requesting the same."
"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)."
"(b) Electronic Communications. Notices and other communications to the Lenders 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 pursuant to ArticleII if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Articleby electronic communication. The Administrative Agent or any 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."
"arising out of any Loan Partys or the Administrative Agents transmission of communications through the Platform. Communications means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed to the Administrative Agent or any Lender by means of electronic communications pursuant to this Section, including through the Platform."
"15.1. Guaranty; Limitation of Liability. (a) Each Guarantor, jointly and severally, 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 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 any Guarantor under this Guaranty (other than payment thereof), and each Guarantor 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."
"15.2. Guaranty Absolute. Each Guarantor guarantees that the 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 the Administrative Agent or any lender with respect thereto. The liability of each Guarantor under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defenses, it may now have or hereafter acquire in any way relating to, any or all of the following:"
"15.7. Termination; Reinstatement. This Guaranty is a continuing and irrevocable guaranty of all Obligations now or hereafter existing and shall remain in full force and effect until the later of (a)all Obligations and any other amounts payable under this Guaranty are indefeasibly paid in full in cash and (b)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 any Borrower or any Guarantor is made, or any of the Lenders or any Lender, the Administrative Agent or any indemnified party exercises its right of setoff, in respect of the 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 Lenders, the Administrative Agent or any indemnified party 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 Lenders, the Administrative Agent or any indemnified party 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."
"16.3. Designated Subsidiaries. (a) Designation. The Parent may at any time, and from time to time, upon not less than 15 Business Days notice in the case of any Subsidiary so designated after the date hereof, notify the Administrative Agent (who shall promptly notify the Lenders) that the Parent intends to designate a Subsidiary as a Designated Subsidiary for purposes of this Agreement. On or after the date that is 15 Business Days after such notice, upon delivery to the Administrative Agent and each Lender of a Designation Letter duly executed by the Parent and the respective Subsidiary and substantially in the form of ExhibitE hereto, such Subsidiary shall thereupon become a Designated Subsidiary for purposes of this Agreement and, as such, shall have all of the rights and obligations of a Borrower hereunder. The Administrative Agent shall promptly notify each Lender of the Parents notice of such pending designation by the Parent and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section16.3(a), if the designation of such Designated Subsidiary obligates the Administrative Agent or any Lender to comply with know your customer or similar identification procedures in circumstances where the necessary information is not already available to it, the Parent shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary know your customer or other similar checks under all applicable laws and regulations."
"As soon as practicable after receiving notice from the Parent or the Administrative Agent of the Parents intent to designate a Subsidiary as a Designated Borrower, and in any event no later than ten Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary, either directly or through an Affiliate of such Lender selected pursuant to the immediately preceding paragraph (a Protesting Lender) shall so notify the Parent and the Administrative Agent in writing. With respect to each Protesting Lender, the Parent shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A)notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Parent or the relevant Designated Subsidiary (in the case of all other amounts), or (B)cancel its request to designate such Subsidiary as a Designated Subsidiary hereunder."
"16.4. Substitution of Currency. If a change in any Committed Currency occurs pursuant to any applicable law, ruleor regulation of any governmental, monetary or multi-national authority, this Agreement (including, without limitation, the definition of Eurocurrency Rate) will be amended to the extent determined by the Administrative Agent (acting reasonably and in consultation with the Parent) to be necessary to reflect the change in currency and to put the Lenders and the Borrowers in the same position, so far as possible, that they would have been in if no change in such Committed Currency had occurred."
"[Aon plc, a public limited company organized under the laws of England and Wales] [Aon Corporation, a Delaware corporation] (the Borrower), promises to pay  (the Lender) the lesser of the principal sum of  Dollars or the aggregate unpaid principal amount of all Loans made by the Lender to the Borrower pursuant to ArticleII of the Credit Agreement (as hereinafter defined), in immediately available funds at the main office of Citibank, N.A. in New York, New York, as Administrative Agent, together with interest on the unpaid principal amount hereof at the rates and on the dates set forth in the Credit Agreement. The Borrower shall pay the principal of and accrued and unpaid interest on the Loans in full on the Facility Termination Date applicable to the Lender and shall make such mandatory payments as are required to be made under the terms of ArticleII of the Credit Agreement."
"(3) Notwithstanding the foregoing, no amounts shall be added pursuant to clauses (ii)through (ix)for any losses, costs, expenses or other charges resulting from the settlement of any Disclosed Claims or any payments in respect of any judgments or other orders thereon or any restructuring or other charges in connection therewith or relating thereto."
"For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i)all of the Assignors rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including without limitation any letters of credit, guarantees, and swingline loans included in such facilities), and (ii)to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i)above (the rights and obligations sold and assigned by the Assignor to the Assignee pursuant to clauses (i)and (ii)above being referred to herein collectively as the Assigned Interest). Each such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor."
"Supplement, the Guaranty, the Guaranteed Obligations and any other obligations of the undersigned hereunder and thereunder not constitute a fraudulent transfer or conveyance for purposes of Debtor Relief Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar avoidable or invalid transaction under foreign, federal or state law to the extent applicable to this Guaranty Supplement, the Guaranty and the obligations of the undersigned hereunder and thereunder. To effectuate the foregoing intention, the Administrative Agent, the Lenders and the undersigned hereby irrevocably agree that the obligations of the undersigned under this Guaranty Supplement and the Guaranty at any time shall be limited to the maximum amount as will result in the obligations of the undersigned under this Guaranty Supplement and the Guaranty not constituting such fraudulent transfer or conveyance or similarly avoidable or invalid transaction."
"The Designated Subsidiary hereby agrees that service of process in any action or proceeding brought in any New York State court or in federal court may be made upon the Aon Corporation at its offices at , Attention: (the Process Agent) and the Designated Subsidiary hereby irrevocably appoints the Process Agent to give any notice of any such service of process, and agrees that the failure of the Process Agent to give any notice of any such service shall not impair or affect the validity of such service or of any judgment rendered in any action or proceeding based thereon."
"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 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 Section881(c)(3)(A)of the Code, (iii)it is not a ten-percent shareholder of any U.S. Borrower within the meaning of Section871(h)(3)(B)of the Code, and (iv)it is not a controlled foreign corporation related to any U.S. Borrower as described in Section881(c)(3)(C)of the Code."
"The undersigned has furnished the Administrative Agent and each U.S. Borrower with IRS FormW-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i)an IRS FormW-8BEN or W-8BEN-E or (ii)an IRS FormW-8IMY accompanied by an IRS FormW-8BEN or W-8BEN-E 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 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."
"immediately preceding Business Day) plus 1%; provided that, for the avoidance of doubt, the Adjusted LIBO Rate for any day shall be based on the LIBO Screen Rate at approximately 11:00 a.m. London time on such day. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate, respectively."
"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."
"(d) investments in certificates of deposit, bankers acceptances and time deposits maturing within 365 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any Lender or any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;"
"Consolidated EBITDA means, for any period, without duplication, an amount equal to the net income or loss of the Company and its Subsidiaries (other than CDO Subsidiaries) on a consolidated basis determined in accordance with GAAP (before minority interests and excluding losses attributable to the sale or other disposition of assets and the adjustment for so-called straight-line rent accounting and excluding all items attributable to CDO Subsidiaries) for such period plus (x) the following, without duplication, to the extent deducted in computing such consolidated net income or loss for such period: (i) Consolidated Interest Expense for such period, (ii) the provision for Federal, state, local and foreign income taxes payable, (iii) depreciation and amortization for such period, (iv) other non-cash charges for such period, (v) acquisition costs for such period with respect to all Real Estate Assets acquired by the Company or any of its consolidated Subsidiaries, (vi) all losses attributable to the sale or other disposition of assets in such period, (vii) non-recurring fees and expenses incurred during such period in connection with the execution and delivery of this Agreement, the JPM Credit Agreement and the Note Purchase Agreement, and (viii) all losses attributable to the early extinguishment of Indebtedness, and minus, without duplication (y)(i) a reserve for capital expenditures and replacements equal to $0.10 per square foot per annum for Real Estate Assets, (ii) all gains attributable to the sale or other disposition of assets or debt restructurings in such period, and (iii) all gains attributable to the early extinguishment of Indebtedness; provided that to the extent not already included in the foregoing calculation, Consolidated EBITDA shall be adjusted to include the Ownership Share of the net income or loss of all Investment Affiliates for such period, determined and adjusted in the same manner as provided above in this definition with respect to the net income or loss of the Company and its Subsidiaries on a consolidated basis; provided further that if during any period for which Consolidated EBITDA is being determined there are New Acquisitions which are subject to leases that contain free rent or other rent reduction provisions that are in effect at any time during such period, then for purposes of determining Consolidated EBITDA for such period, the rental or other income attributable to such leases while such free rent or rent reduction period is in effect (but in no event longer than 6-months for any such lease) shall be determined on a straight-line rent accounting basis."
"Obligations unless and until a claim for payment has been made thereunder, at which time any such guaranty of completion or other performance shall be deemed to be a Contingent Obligation in an amount equal to any such claim. Subject to the preceding sentence, (1) in the case of a joint and several guaranty given by such Person and another Person (but only to the extent such guaranty is Recourse Indebtedness, directly or indirectly to such Person or any of its Subsidiaries), the amount of such guaranty shall be deemed to be 100% thereof unless and only to the extent that (i) such other Person has delivered cash or Cash Equivalents to secure all or any part of such Persons obligations under such joint and several guaranty (in which case the amount of such guaranty shall be reduced by the amount of such cash or Cash Equivalents) or (ii) such other Person holds an Investment Grade Rating from any of Fitch, Moodys or S&P, or has creditworthiness otherwise reasonably acceptable to the Administrative Agent (in which case the amount of such guaranty shall be zero), and (2) in the case of a guaranty (whether or not joint and several) of an obligation otherwise constituting Indebtedness of such Person, the amount of such guaranty shall be deemed to be only that amount in excess of the amount of the obligation constituting Indebtedness of such Person. Notwithstanding anything contained herein to the contrary, Contingent Obligations shall not be deemed to include guarantees of loan commitments or of construction loans to the extent the same have not been drawn."
"Excluded Taxes means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a 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 Lender, 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 Lender, U.S. Federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in such Loan or Commitment (other than pursuant to an assignment requested by a Borrower under Section 2.19(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.17, amounts with respect to such Taxes were payable either to such Lenders assignor immediately before such Lender acquired the applicable interest in a Loan or Commitment or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipients failure to comply with Section 2.17(f) and (d) any U.S. Federal withholding Taxes imposed under FATCA."
"Federal Funds Effective Rate means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, 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 (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it."
"Indebtedness means, with respect to 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 trade payables and accrued expenses incurred by such Person in the ordinary course of business) and only to the extent such obligations constitute indebtedness for purposes of GAAP, (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 or applicant under acceptance, letter of credit or similar facilities, (g) all obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any Disqualified Equity Interests of such Person (other than (i) obligations existing on the Effective Date that any direct or indirect parent of such Person has the right (subject to satisfaction of applicable securities law requirements, including the filing of registration statements) to satisfy by delivery of its Equity Interests, (ii) obligations that any direct or indirect parent of such Person is given the right to satisfy by delivery of its Equity Interests and (iii) obligations with respect to preferred stock of the Company), (h) all Contingent Obligations of such Person in respect of the foregoing clauses (a) through (g), (i) all obligations of the kind referred to in clause (a) through (h) above secured by any Lien on property (including, without limitation, 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) the mark to market liability of such Person in respect of Swap Agreements. 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 expressly provide that such Person is not liable therefor. The amount of any Indebtedness under clause (i) above shall be limited to the lesser of the amount of such Indebtedness that is Nonrecourse Indebtedness or the fair market value of the assets securing such Indebtedness that is Nonrecourse Indebtedness, as reasonably determined by the Company. The amount of Indebtedness of any Person shall be calculated at the outstanding principal"
"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."
"JPM Credit Agreement means that certain Revolving Credit and Term Loan Agreement, dated as of December 17, 2015, among the Borrowers, the Company, the lenders party thereto, JPMorgan Chase Bank, N.A., as administrative agent, Bank of America, N.A., as syndication agent, J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as joint bookrunners and joint lead arrangers, Wells Fargo Securities, LLC, U.S. Bank National Association, and Royal Bank of Canada, as joint lead arrangers, and Royal Bank of Canada, U.S. Bank National Association, Wells Fargo Bank, N.A., The Bank of New York Mellon, Citibank, N.A., Citizens Bank, N.A., Morgan Stanley Senior Funding, Inc., SunTrust Bank, and The Bank of Nova Scotia, as documentation agents, as the same may be amended, amended and restated, restated, supplemented, modified or otherwise in effect from time to time (subject to any restrictions in Section 6.01(c))."
"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)."
"Plan means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which a Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an employer as defined in Section 3(5) of ERISA."
"Required Lenders means, at any time, Lenders having Term Loan Exposures representing more than 50% of the sum of the total Term Loan Exposures at such time; provided that, in the event any of the Lenders shall be a Defaulting Lender, then for so long as such Lender is a Defaulting Lender, Required Lenders means Lenders (excluding all Defaulting Lenders) having Term Loan Exposures representing more than 50% of the sum of the total Term Loan Exposures of such Lenders (excluding all Defaulting Lenders) at such time; provided further that, in the event there are only two (2) Lenders, then for so long as there are only two (2) Lenders, Required Lenders means all Lenders that are not Defaulting Lenders at such time."
"Sanctions means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state, or Her Majestys Treasury of the United Kingdom."
"Subsidiary means, with respect to any Person (the parent) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parents consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other 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, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, 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. Unless the context requires otherwise, Subsidiary means any Subsidiary of the Company."
"such Unencumbered Property determined for the most recently ended fiscal quarter, times (y) four, divided by (ii) the applicable Capitalization Rate; plus (c) for each Unencumbered Property (other than a New Acquisition) not located in the United States, the book value (after impairments and before depreciation) of such Unencumbered Property; plus (d) the book value (after impairments) of first priority Mortgage Notes receivable held by the Company or any of its Wholly-Owned Subsidiaries so long as (i) such Mortgage Note is not subject to any Liens or Negative Pledges, (ii) such Mortgage Note is not more than sixty (60) days past due or otherwise in payment default after giving effect to applicable cure periods, and (iii) the property securing such Mortgage Note meets the criteria for an Unencumbered Property (other than clause (a) of the definition thereof); plus (e) unrestricted cash and Cash Equivalents of the Company and its Wholly-Owned Subsidiaries; plus (f) 50% of the book value of each Real Estate Asset that meets the criteria for an Unencumbered Property (other than clause (g) of the definition thereof) which is unoccupied (excluding such Unencumbered Property if (i) a monetary default has occurred and has continued under a binding lease with respect to such Unencumbered Property or (ii) for more than the 12 consecutive month period prior to any date of determination, such Unencumbered Property has been unoccupied by tenants which are not affiliated with the Company); provided that (A) not more than 20% of Unencumbered Asset Value may be attributable to any single Unencumbered Property, (B) not more than 20% of Unencumbered Asset Value may be attributable to Unencumbered Properties for which the same Person is the tenant, (C) not more than 10% of Unencumbered Asset Value may be attributable to Unencumbered Properties that are subject to a ground lease, (D) not more than 10% of Unencumbered Asset Value may be attributable to first priority Mortgage Notes receivable, (E) not more than 10% of Unencumbered Asset Value may be attributable to assets described in clauses (e) and (f) above, (F) not more than 15% of Unencumbered Asset Value may be attributable to Specified Joint Ventures, (G) not more than 15% of Unencumbered Asset Value may be attributable to Unencumbered Properties not located in the United States (which, in the case of any asset of the type described in clause (d) above, shall include the location of the property securing such Mortgage Note), and (H) not more than 25% of Unencumbered Asset Value may be attributable to Development Properties, unimproved land, and assets described in clauses (C), (F) and (G). With respect to any Unencumbered Property owned by a Specified Joint Venture and the calculations required by clause (a), (c) and (f) above, only the Ownership Share of the acquisition cost or book value, respectively, of such Unencumbered Property shall be included in the calculation of Unencumbered Asset Value."
"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 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, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Persons successors and assigns, (c) 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, (d) 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 and (e) any reference to any law or regulation herein shall, unless otherwise specified, refer to such"
"SECTION 2.04. Incremental Facilities. On one or more occasions at any time after the Effective Date, the Borrowers may by written notice to the Administrative Agent elect to request the establishment of one or more new term loan commitments (the New Term Loan Commitments), by up to an aggregate amount not to exceed $140,000,000 for all New Term Loan Commitments. Each such notice shall specify the date (each, an Increased Amount Date) on which the Borrowers propose that such New Term Loan Commitments shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent. The Administrative Agent and/or its Affiliates shall use commercially reasonable efforts, with the assistance of the Borrowers, to arrange a syndicate of Lenders or other Persons that are Eligible Assignees willing to hold the requested New Term Loan Commitments; provided that (x) any New Term Loan Commitments on any Increased Amount Date shall be in the minimum aggregate amount of $5,000,000, and in integral multiples of $5,000,000 in excess thereof, (y) any Lender approached to provide all or a portion of the New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Term Loan Commitment; provided that the Lenders will first be afforded the opportunity to provide the New Term Loan Commitments on a pro rata basis, and if any Lender so approached fails to respond, such Lender shall be deemed to have declined to provide such New Term Loan Commitments, and (z) any Lender or other Person that is an Eligible Assignee (each, a New Term Loan Lender, as applicable) to whom any portion of such New Term Loan Commitment shall be allocated shall be subject to the approval of the Borrowers and the Administrative Agent (such approval not to be unreasonably withheld or delayed), unless such New Term Loan Lender is an existing Lender."
"materiality, Material Adverse Effect or similar language, which shall be true and correct in all respects) on the effective date of such New Term Loan Commitments except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been 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 such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (z) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate or other necessary action taken by the Borrowers to authorize such New Term Loan Commitments and (B) all corporate, partnership, member, or other necessary action taken by the Guarantor authorizing the guaranty of such New Term Loan Commitments; and (ii) a customary opinion of counsel to the Borrowers and the Guarantor (which may be in substantially the same form as delivered on the Effective Date and may be delivered by internal counsel of the Borrowers), and addressed to the Administrative Agent and the Lenders, and (iii) if requested by any Lender, new notes executed by the Borrowers, payable to any new Lender, and replacement notes executed by the Borrowers, payable to any existing Lenders."
"SECTION 2.07. Funding of Borrowings. Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 12:00 noon, New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. The Administrative Agent will make such Loans available to the Borrowers by promptly crediting the amounts so received, in like funds to an account of a Borrower maintained with the Administrative Agent in New York City or such other account as is designated by the Borrowers in the applicable Borrowing Request."
"so notifies the Borrowers, then, so long as an Event of Default is continuing (i) no outstanding Borrowing under the Term Facility may be converted to or continued as a Eurodollar Borrowing, and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto."
(c) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the Obligations of the Borrowers.
"(b) If any Lender determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lenders capital or on the capital of such Lenders holding company, if any, as a consequence of this Agreement or the Loans made by such Lender to a level 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 and liquidity), then from time to time the Borrowers 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."
"(b) Evidence of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 2.17, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent."
"(c) Indemnification by the Borrowers. The Loan Parties shall indemnify each Recipient, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified 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 Borrowers 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."
"(d) Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (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), (ii) any Taxes attributable to such Lenders failure to comply with the provisions of Section 9.04(c) 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 the 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 the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the 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 the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (e)."
"(C) 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), executed originals 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 supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and"
"(a) At the election of the Borrower and by written notice to the Administrative Agent, Legacy OP, may be released and discharged from all of its obligations and liabilities as a Borrower under this Agreement and the Notes and shall be released and discharged from its obligations hereunder and thereunder without the need for the execution or delivery of any other document by the Borrowers, so long as (i) if Legacy OP is a borrower, issuer or guarantor of, or otherwise liable for or in respect of any Indebtedness other than the Obligations, including, without limitation, any Indebtedness under the JPM Credit Agreement or the Note Purchase Agreement, then Legacy OP shall have been released and discharged (or will be released and discharged concurrently with its release under this Agreement and the Notes) from any obligation for or in respect of any such Indebtedness, (ii) at the time of, and after giving effect to, such release and discharge, no Default or Event of Default shall be existing, (iii) if in connection with Legacy OP being released and discharged under any Indebtedness other than the Obligations, (A) any fee or other form of consideration is given to any holder of such Indebtedness for such release, the Lenders shall receive equivalent consideration (on a pro rata basis) concurrently with the release of Legacy OP from its obligations as a Borrower hereunder, or (B) any amendments are made to the documents evidencing such Indebtedness, then, at the option of the Lenders, the Borrower and Guarantor shall agree to make corresponding amendments to any equivalent provisions of the Loan Documents pursuant to documentation that is reasonably acceptable to the Administrative Agent concurrently with the amendments to such documents evidencing such other Indebtedness, (iv) the Administrative Agent shall have received a certificate of an Authorized Officer certifying as to the matters set forth in sub-clauses (i) through (iii) of this clause (a), (v) the Guarantor confirms its obligations under the Guaranty in writing at such time pursuant to documentation that is reasonably acceptable to the Administrative Agent, and (vi) GPT OP, confirms its obligations as a Borrower under this Agreement and the Notes in writing at such time pursuant to documentation that is reasonably acceptable to the Administrative Agent."
"SECTION 3.06. Litigation and Environmental Matters. 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 in writing against the Company or any of its Subsidiaries (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) or (ii) that involve this Agreement or the"
"SECTION 3.10. ERISA. None of the Company or any of its Subsidiaries or any of their respective ERISA Affiliates (i) maintains, contributes to or has any obligation with respect to, or during the preceding five plan years has maintained, contributed to or had any obligation with respect to, any Plan or (ii) has any liability to the PBGC, the Internal Revenue Service or any trust established under Title IV of ERISA. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect."
"SECTION 3.13. Federal Reserve Board Regulations. None of the Loan Parties is engaged or will engage, principally or as one of its important activities, in the business of extending credit for the purposes of purchasing or carrying any Margin Stock within the respective meanings of such terms under Regulations U, T and X of the Board. No part of the proceeds of the Loans will be used for purchasing or carrying Margin Stock as so defined for any purpose which violates, or which would be inconsistent with, the provisions of, any applicable laws or regulations of any Governmental Authority (including, without limitation, the Regulations of the Board)."
"(vii) If a Borrowing (other than pursuant to Section 2.01(a)) is to be made on the Effective Date, written money transfer instructions in form and substance reasonably acceptable to the Administrative Agent, addressed to the Administrative Agent and signed by an officer of each Borrower, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested;"
"(b) within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Company, its unaudited consolidated balance sheet and related unaudited statements of operations, stockholders equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;"
"SECTION 5.07. Compliance with Laws. The Company will, and will cause each of its Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property (including Environmental Laws), 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 its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions."
"Until the Commitments have expired or terminated and the principal of and interest on each Loan and all fees and other Obligations payable hereunder 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:"
"Notwithstanding the foregoing provisions of this Section 6.02, the failure of any Unencumbered Property to comply with the requirements set forth in the definition of Unencumbered Property shall result in such Unencumbered Propertys no longer qualifying as Unencumbered Property under this Agreement, but such disqualification shall not by itself constitute a Default or Event of Default, unless such non-qualification otherwise constitutes or results in a Default or Event of Default."
"SECTION 6.06. Transactions with Affiliates. The Company will not, and will not permit any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (a) in the ordinary course of business at prices and on terms and conditions not less favorable to the Company or such Subsidiary than could be obtained on an arms-length basis from unrelated third parties, transactions between or among the Company and its Subsidiaries not involving any other Affiliate, (c) payment of compensation and benefits arising out of employment and consulting relationships in the ordinary course of business, (d) any transfer between any Subsidiaries of the Company permitted pursuant to Section 6.03(a), and (e) any Restricted Payment permitted by Section 6.05."
"(c) any representation or warranty made or deemed made by or on behalf of the Company or any Subsidiary in or in connection with this Agreement and the other Loan Documents or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any amendment or modification hereof or waiver hereunder, shall prove to have been incorrect in any material respect when made or deemed made or when furnished;"
"(e) the Company or any Subsidiary shall fail to observe or perform any covenant, condition or agreement contained in this Agreement or any other Loan Document (other than those specified in clause (a), (b) or (d) of this Article), and such failure shall continue unremedied for a period of thirty (30) days after notice thereof from the Administrative Agent to the Borrowers (which notice will be given at the request of any Lender);"
"Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent 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, together with such actions and powers as are reasonably incidental thereto."
"The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth herein, the Administrative Agent shall not 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 Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or 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 written notice thereof is given to the Administrative Agent by the Borrowers or a Lender, and 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent."
"Subject to the appointment and acceptance of a successor Administrative Agent as provided in paragraphs 6 and 8 of this Article VIII, the Administrative Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrowers, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank."
"payment of the principal amount of any Loan, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender affected thereby, (iv) change Section 2.18(b) or (c) or the last paragraph of Article VII in a manner that would alter the pro rata sharing of payments required thereby, without the written consent of each Lender, (v) change any of the provisions of this Section or the definition of Required Lenders or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender, or (vi) release the Company from its obligations under the Guaranty without the written consent of each Lender; provided further that (x) no agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent hereunder without the prior written consent of the Administrative Agent, and (y) no such agreement shall amend or modify Section 2.20 without the prior written consent of the Administrative Agent."
"(a) The Borrowers and the Company shall indemnify the Administrative Agent, each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an Indemnitee) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement or any agreement or instrument contemplated hereby, the performance by the parties hereto of their respective obligations hereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or the use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Company or any of its Subsidiaries, or any Environmental Liability related in any way to the Company or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not such claim,"
"(c) To the extent permitted by applicable law, no party hereto shall assert, and each such party hereby waives, any claim against any other party hereto 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 thereof; provided that, nothing in this clause (d) shall relieve any of the Borrowers or the Company of any obligation it may have to indemnify an Indemnitee against special, indirect, consequential or punitive damages asserted against such Indemnitee by a third party. No Indemnitee referred to in paragraph (b) above 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, except to the extent such damages are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee."
"(A) the Borrowers; provided that, the Borrowers shall be deemed to have consented to an assignment unless it shall have objected thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof; provided further that no consent of the Borrowers shall be required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default has occurred and is continuing, any other assignee; and"
"Assumption and record the information contained therein in the Register; provided that if either the assigning Lender or the assignee shall have failed to make any payment required to be made by it pursuant to Section 2.07(b), Section 2.18(d) or Section 9.03(c), the Administrative Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph."
"(b) Any Lender may, without the consent of the Borrowers or the Administrative Agent, sell participations to one or more banks or other entities (a Participant), other than an Ineligible Institution, in all or a portion of such Lenders rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans owing to it); provided that (A) such Lenders obligations under this Agreement shall remain unchanged; (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; and (C) the Borrowers, the Administrative Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lenders rights and obligations under this Agreement. 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 described in the first proviso to Section 9.02(b) that affects such Participant. The Borrowers agree that each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 (subject to the requirements and limitations therein, including the requirements under Section 2.17(f), it being understood that the documentation required under Section 2.17(f) 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 paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.19 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Section 2.15 or 2.17, 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 Borrowers request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.19(b) with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.18(c) 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"
"SECTION 9.07. Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction."
"SECTION 9.10. 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."
"SECTION 9.15. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively the Charges), shall exceed the maximum lawful rate (the Maximum Rate) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender."
"SECTION 9.17. 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 of the Loan Parties acknowledges and agrees, and acknowledges its Affiliates understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Lead Arranger, the Syndication Agent, the Documentation Agent, and the Lenders are arms-length commercial transactions between the Loan Parties and their respective Affiliates, on the one hand, and the Administrative Agent, the Lead Arranger, the Syndication Agent, the Documentation Agent, and the Lenders, on the other hand, (B) each of the Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) each of the Loan Parties is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative Agent, the Lead Arranger, the Syndication Agent, the Documentation Agent, and each Lender 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 acting as an advisor, agent or fiduciary for the Loan Parties or any of their respective Affiliates, or any other Person and (B) neither the Administrative Agent, the Lead Arranger, the Syndication Agent, the Documentation Agent, nor any Lender has any obligation to any of the Loan Parties or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, the Lead Arranger, the Syndication Agent, the Documentation Agent, and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Loan Parties and their Affiliates, and none of the Administrative Agent, the Lead Arranger, the Syndication Agent, the Documentation Agent, nor any Lender has any obligation to disclose any of such interests to any Loan Party or any of their respective Affiliates. To the fullest extent permitted by law, each Loan Party hereby waives and releases any claims that it may have against the Administrative Agent, the Lead Arranger, the Syndication Agent, the Documentation Agent, or any Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby. Anything herein to the contrary notwithstanding, none of the Lead Arranger, the Syndication Agent, or the Documentation Agent 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 or a Lender hereunder."
"SECTION 9.18. Acknowledgement and Consent to Bail-In of EEA Financial Institutions. 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 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:"
"3. Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date. All payments to Assignee under the Loan Agreement shall be made as provided in the Loan Agreement in accordance with the separate instructions delivered to Administrative Agent."
"The undersigned has furnished the Administrative Agent and the Borrowers with a certificate of its non-U.S. Person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrowers and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrowers 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."
"The undersigned has furnished the Administrative Agent and the Borrowers 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 (ii) an IRS Form W-8ECI 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 Borrowers and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrowers 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."
"The Borrowers also, jointly and severally, promise to pay (a) principal at the times provided in the Loan Agreement and (b) interest from the date hereof on the principal amount unpaid at the rates and times set forth in the Loan Agreement and in all cases in accordance with the terms of the Loan Agreement. Late charges and other charges and default rate interest shall be paid by Borrowers in accordance with, and subject to, the terms and conditions of the Loan Agreement. The entire outstanding principal amount of this Note, together with all accrued but unpaid interest thereon, shall be due and payable in full on the Maturity Date. The Lender may endorse the record relating to this Note with appropriate notations evidencing advances and payments of principal hereunder as contemplated by the Loan Agreement. Such notations shall, to the extent not inconsistent with the notations made by the Administrative Agent in the Register, be conclusive and binding on the Borrowers in the absence of manifest error; provided, however, that the failure of any Lender to make any such notations shall not limit or otherwise affect any Obligations of the Borrowers."
"This Note is issued pursuant to, is entitled to the benefits of, and is subject to the provisions of the Loan Agreement and the other Loan Documents. The principal of this Note is subject to prepayment in whole or in part without premium or penalty (but subject to the provisions of Section 2.16 of the Loan Agreement) in the manner and to the extent specified in the Loan Agreement. The"
"Each of the undersigned Financial Officers hereby certifies as of the date hereof that [he][she] is the __________________________________ of the Borrower listed above [his][her] name, and that, as such, [he][she] is authorized to execute and deliver this Compliance Certificate (this Certificate) to the Administrative Agent on the behalf of such Borrower, and that:"
3\. The Borrowers are in compliance with the financial covenants in Section 6.11 as of the last day of the [fiscal quarter][fiscal year] ended as of the above date. The financial covenant analyses and information set forth on the schedules attached hereto are true and correct in all material respects on and as of the date of this Compliance Certificate.]
"Availability means, as of any Advance Date, an amount equal the remainder of (i) the lesser of (A) the Facility Limit and (B) the Borrowing Base, minus (ii) the Aggregate Loan Amount (after giving effect to any principal repayments to be made on such Advance Date but prior to giving effect to any new Advance to be made on such Advance Date)."
"Disqualified Institution means, on any date, any Person that is a direct competitor of LendingClub or any of its readily identifiable Subsidiaries, which Person has been designated by the Borrower as a Disqualified Institution by prior written notice to the Administrative Agent (which shall promptly make such information available to the Lenders in accordance with its customary practice) at least three Business Days before such date."
"Information means, with respect to the Borrower as a disclosing party and any Agent or Lender as a recipient, all information provided by the Borrower, LendingClub or any of its Subsidiaries or their respective advisers or representatives to any such recipient relating to the Borrower, LendingClub or any of its Subsidiaries or any of their respective businesses and expressly excluding any such information that is public, independently developed (without breach of Section 9.02), or made available to any Agent or any Lender on a nonconfidential basis prior to disclosure by the Borrower, LendingClub or any of their respective Subsidiaries or their respective advisers or representatives."
"Loan Amount means, with respect to any Lender at any time, an amount equal to (a) the aggregate principal amount funded by such Lender of Advances made to Borrower hereunder at or prior to such time, plus (b) any Loan Amount of any other Lender assumed by such Lender as assignee pursuant to an Assignment and Assumption Agreement at or prior to such time, minus (c) the amount of principal repayments received and applied by such Lender hereunder at or prior to such time, minus (d) any portion of such Lenders Loan Amount assigned by such Lender as assignor pursuant to an Assignment and Assumption Agreement at or prior to such time."
Near Prime Loan is a Receivable classified by the Originator and Seller at origination as a Near Prime Loan in accordance with the Originators Underwriting Policy and the Credit and Collection Policy and that satisfies the Credit Criteria for such Receivables Product as each of the foregoing terms is defined in the Receivables Purchase Agreement.
"Permitted Liens means (i) Liens in favor of the Collateral Trustee, for the benefit of the Secured Parties, created pursuant to any Transaction Document, (ii) Security Interests in favor of the Borrower (including, without limitation, as purchaser from Seller) created pursuant to any Transaction Document, (iii) inchoate Liens for taxes not yet due, and (iv) other than with respect to any Purchased Assets or other Collateral (for which this clause (iv) shall not apply), tax liens arising by operation of law for taxes the validity or amount of which is being contested in good faith by appropriate proceedings and for which adequate reserves have been set aside on the books of such taxpayer with respect thereto in accordance with (and as required by) GAAP, and (v) solely with respect to Receivables that are no longer Purchased Receivables, precautionary and backup Liens in such Receivables in favor of purchasers of such Receivables."
"Prime Rate means, for any date of determination, the highest rate of interest (or if a range is given, the highest prime rate) published in The Wall Street Journal on such date as constituting the prime rate or base rate in such publications table of Money Rates or, if The Wall Street Journal is not published on such date, then in The Wall Street Journal most recently published or a comparable publication that publishes comparable rates."
"Qualified Hedging Transaction means either (a) a Hedging Transaction that is an interest rate cap, that arises under a Qualified Hedging Agreement, and for which the Borrower has made all required payments paid or payable to the Qualified Hedge Counterparty thereunder to purchase such Hedging Transaction, or (b) a Hedging Transaction other than an interest rate cap that (i) has been approved by the Administrative Agent in its sole discretion, and (ii) has been entered into pursuant to a Qualified Hedging Agreement."
"Receivable means an unsecured consumer loan originally issued by the Originator and acquired by the Seller pursuant to the Originator Program Documents, which includes all right, title and interest with respect to such loan as a holder of both the beneficial and legal title to such loan, including without limitation (a) the related Receivable Document Package and all other loan documents, files and records of the lender and its servicing agent for such loan, (b) all proceeds from such loan (including without limitation any monthly payments, any prepayments, all unpaid periodic interest and finance charges due or which may become due with respect thereto, all fees (including without limitation late payment fees) applicable to such loan, and all other fees, charges and other amounts that have been or may be assessed against the Obligor or otherwise may be due and payable thereunder), (c) all other rights, interests, benefits, proceeds, remedies and claims arising from or relating to such loan, and (d) all proceeds of the foregoing. "
"Required Reserve Account Amount means, as of any date of determination (a) prior to a Reserve Account Termination Date, the product of (i) the Required Reserve Percentage multiplied by (ii) the quotient of (A) the Aggregate Loan Amount on such date of determination, after giving to any Advance to be made on such date (without any distinction with respect to the portion of such Advance to be deposited into the Reserve Account and the portion thereof to be remitted to any other account of the Borrower), prepayment or distribution to be made on such date, divided by (B) the Advance Rate on such date of determination; and (b) after a Reserve Account Termination Date, zero ($0.00)."
"Required Reserve Account Deposit Amount means, as of any date of determination, the remainder of (a) the Required Reserve Account Amount as of such date, minus (b) the amount of funds actually on deposit in the Reserve Account on such date (after giving effect to any amount to be withdrawn from such Reserve Account on such date but before giving effect to any actual deposit of any portion of an Advance or other amount to be deposited into such Reserve Account on such date)."
"Reserve Account Prepayment Amount means, with respect to any Prepayment/Release Date, the amount determined as of such date after giving effect to any prepayment or other distribution on such date (but not any withdrawal from the Reserve Account to be made on such date) equal to the excess of the amount of funds on deposit in the Reserve Account on such date over the Required Reserve Account Amount on such date."
"Supplemental Information and Certification means, as part of each Advance Notice, each Prepayment/Release Notice and each Servicers Monthly Settlement Certificate delivered hereunder: (a) a pro forma calculation of the Required Reserve Account Deposit Amount (in the case of any Advance Notice) or Reserve Account Prepayment Amount (in the case of a Prepayment/Release Notice), (or either of the foregoing, if applicable, as part of the Servicers Monthly Settlement Certificate) as of (or as would be determined on) the related Advance Date, Prepayment/Release Date, or Settlement Date, as the case may be, after giving effect to any Advance, prepayment, Release, distribution, and other action to be taken on such date, (b) a certification and representation and warranty that the Seller is in compliance with the Liquidity covenant set forth on Schedule VII as of the date of such notice or certificate and will be true on the related Activity Date or Settlement Date, as applicable, after giving effect to any Advance, prepayment, Release, distribution or other action to be taken on such date; and (c) certifying that the foregoing calculations and determination were made in good faith and agreeing that such information will be immediately updated if necessary on any related Advance Date or Prepayment/Release Date if not accurate as of the close of business on such date."
"(k) Approvals. The fact that any Person provides approval or consent hereunder shall not mean or otherwise be construed to mean: (i) that such Person providing such approval or consent has assumed the obligations of the Person seeking approval or consent to comply with all applicable Requirements of Law and other obligations arising from or relating to the underlying matter as to which such approval or consent was given; or (ii) except as otherwise expressly set forth in such approval or consent, that providing any such approval or consent impairs in any way the rights or remedies of the Person providing such approval or consent under this Agreement, including indemnification rights for any failure of the Person seeking such approval or consent to comply with all such Requirements of Law and other obligations."
"(a) Revolving Period. Subject to the terms and conditions of this Agreement (including, without limitation, the conditions precedent to the initial Advance and each subsequent Advance set forth in Article V) and relying upon the representations and warranties herein set forth, during the Revolving Period, each Conduit Lender may, and to the extent any Conduit Lender declines to fund, each Committed Lender in its Related Group shall, severally and not jointly, fund its Applicable Advance Percentage of each Advance requested by the Borrower pursuant to Section 2.01(b) as long as such requested Advance does not exceed the Availability; provided, that (i) no Committed Lender shall fund an Advance to the extent that, after giving effect thereto, the Loan Amount of such Committed Lender would exceed its Commitment; and (ii) no Lender in a Related Group shall fund an Advance to the extent that, after giving effect to the total portion of such Advance funded by the Lenders in such Related Group, the Related Group Loan Amount would exceed the total of the Commitments of the Committed Lenders in such Related Group. Subject to the foregoing, amounts borrowed hereunder by the Borrower may be repaid and re- borrowed during the Revolving Period."
"(c) Pro Forma Calculations. The Borrowing Base Certificate and Data File delivered with any Advance Notice shall be dated and current as of the close of business on the date preceding the delivery date for such Advance Notice set forth above and shall show pro forma calculations of the Required Reserve Account Deposit Amount and Borrowing Base as of the applicable Advance Date (after giving effect to the Advance and purchase of Receivables on such date), and shall include, without limitation, (i) identification of the Receivables to be acquired on such Advance Date and certification of which Purchased Receivables will be Eligible Receivables on such Advance Date, and (ii) the Supplemental Information and Certification. The Borrower hereby agrees that it shall, or it shall cause the Servicer to, immediately notify the Administrative Agent and Paying Agent if any such pro forma information or calculations fail to be true as of the related Advance Date, together with corrected and updated information and calculations as of such Advance Date."
"(f) Use of Proceeds of Advances. The Borrower shall use the proceeds of Advances solely to purchase (i) Receivables, (ii) the related Receivable Document Package and other receivable records with respect to such Receivable, (iii) related rights and benefits of lender under such Receivable Documents, (iv) servicing rights, (v) collections thereof, (vi) proceeds of any of the foregoing, and (vii) any other assets described in the Receivables Purchase Agreement and to pay fees and expenses related to the Facility and ownership of the foregoing that are permitted under the Transaction Documents."
"SECTION 2.02 Commitments. The Commitments of all of the Committed Lenders shall automatically, and without further action, terminate on the Commitment Termination Date. The Borrower may at any time terminate, or from time to time reduce, the Commitments; provided that (i) each reduction of the Commitments shall be in an amount that is an integral multiple of $1,000,000 and not less than $1,000,000 and (ii) the Borrower shall not terminate or reduce the Commitments if, after giving effect to any concurrent prepayment of the Loans in accordance with Section 2.04, the Aggregate Loan Amount would exceed the total Commitments. The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Commitments under this Section at least two Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each reduction of the Commitments shall be applied to the Committed Lenders in accordance with their respective Applicable Advance Percentage."
"(e) Monthly Invoice. The Administrative Agent will prepare an invoice for each Settlement Date (each, a Monthly Invoice), and deliver such invoice to the Servicer and the Borrower on the related Invoice Delivery Date, setting forth the Interest Period Invoice Amount due by the Borrower to each of the Lenders on such Settlement Date. The Borrower shall cause the Servicer to include the Interest Period Invoice Amount set forth in such invoice as the amount to be distributed to the Lenders with respect thereto on the Servicers Monthly Settlement Certificate for such Settlement Date. The determination by the Administrative Agent of the Interest Period Invoice Amount (and the Interest Rate used in the calculation thereof) due to each of the Lenders, as set forth on any such invoice, shall be conclusive and binding absent manifest error."
"(a) Increased Costs Generally. If any Regulatory Requirement shall (i) subject any Lender or Related Person to any Taxes (other than Indemnified Taxes and Excluded Taxes) on its Loan or Commitment hereunder or its deposits, reserves, other liabilities or capital attributable thereto; or (ii) impose, modify or deem applicable any reserve, compulsory loan, insurance charge, special deposit or similar requirement against assets of, deposits with or for account of, or credit extended by, any Lender or Related Person, and the result of any of the foregoing shall be an increase in the cost of, or any reduction in the amount of any sum received or receivable by, such Lender or Related Person, that in the case of any of the foregoing, arise in respect of the making, continuing or maintaining (or the commitment to make, continue or maintain) any Loan hereunder, then, from time to time either (x) within 10 days of demand thereof (if paid directly to such Lender by the Borrower from funds other than Collections) or (y) on the next Settlement Date after such tenth day if no direct payment was made (from Collections held in the Collection Account in accordance with the Priority of Payments), the Borrower will pay to the applicable Lender, on behalf of such Lender or any Related Person, such additional amount or amounts as will compensate such Lender or any such Related Person, as the case may be, for such additional costs incurred or reduction suffered, but without duplication of any amount payable pursuant to subsection (b) of this Section and Section 2.08."
"(a) Payment of Indemnified Taxes. All payments by the Borrower of principal of, and interest on, the Loans and all other payments by the Borrower, the Seller, or the Servicer hereunder or under any other Transaction Document shall be made free and clear of and without deduction for any present or future income, excise, stamp or franchise taxes and other taxes, fees, levies, imposts, deductions, assessments, duties, withholdings or other charges of any nature whatsoever imposed by any Governmental Authority, including any interest or penalties thereon or additions thereto (any of the foregoing, Taxes), except as may be required by law. In the event that any withholding or deduction from any payment to be made by the Borrower hereunder and/or under any other Transaction Document is required in respect of any Taxes pursuant to any applicable law, rule or regulation, then the Borrower will: (i) pay directly to the relevant authority the full amount required to be so withheld or deducted; (ii) promptly forward to the affected Lender or its agent an official receipt or other documentation evidencing such payment to such authority; and (iii) solely in the case of Taxes other than Excluded Taxes (such non-excluded Taxes imposed on or with respect to any payment made by or on account of any Obligation of the Borrower hereunder or under any other Transaction Document being called Indemnified Taxes), pay to the affected Lender or its agent such additional amount or amounts as is necessary to ensure that the net amount actually received by such Lender will equal the full amount such Lender would have received had no such withholding or deduction been required. In connection with any amounts to be reimbursed to any Lender on a Settlement Date pursuant to this Section, the Borrower hereby agrees that it shall cause the Servicer to reflect such amounts to be reimbursed to each Lender on the Servicers Monthly Settlement Certificate."
"(c) Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower), (ii) any Taxes attributable to such Lenders failure to comply with the provisions of Section 9.03(f) 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 the Administrative Agent in connection with any Transaction 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 the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Transaction Document or otherwise payable by the Paying Agent or the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this subsection (c)."
"SECTION 2.09 Costs Related to Advance or Prepayment Failures. The Borrower agrees to reimburse each Lender, either (x) within 10 days of demand thereof (if paid directly to such Lender by the Borrower from funds other than Collections) or (y) on the next Settlement Date after such tenth day if no direct payment was made (from Collections held in the Collection Account in accordance with the Priority of Payments), for all reasonable losses, expenses, liabilities (including, without limitation, with respect to any interest or fee paid by such Lender to any lender, note buyer, credit or liquidity support provider, dealer, placement agent or other Person) or losses or costs arising in connection with the re-deployment of funds, which such Lender may sustain if for any reason (including any failure to satisfy any condition precedent), the Borrower (i) fails to accept an Advance on any scheduled Advance Date after delivery of an Advance Notice, (ii) fails to make a prepayment on any scheduled Prepayment/Release Date after delivery of any Prepayment/Release Notice (that, in the case of any such Advance Notice or Prepayment/Release Notice, as the case may be, has not been revoked prior to the second Business Day preceding the applicable Advance Date or Prepayment/Release Date, as the case may be), or (iii) makes any prepayment on a day that is not the last day of an Interest Period. A certificate as to any amounts payable pursuant to this Section 2.09 submitted to the Borrower by any Lender (with a copy to the Administrative Agent), providing a reasonably detailed calculation of such amounts and the basis for requesting such payment, shall be conclusive in the absence of manifest error. In connection with any amounts to be reimbursed to any Lender on a Settlement Date pursuant to this Section, the Borrower hereby agrees that it shall cause the Servicer to reflect such amounts to be reimbursed to each Lender on the Servicers Monthly Settlement Certificate."
"(b) Collections Following Event of Default. Upon the occurrence and during the continuance of any Event of Default or Servicer Default, (i) at the request of the Administrative Agent, the Borrower shall, or shall cause the Servicer to, instruct and cause all Obligors of Purchased Receivables to send all Scheduled Payments and other amounts due thereunder directly to the Administrative Agent or its designee, and cause all ACH debits from an Obligors bank account to be remitted to the bank account designated by the Administrative Agent or its designee; and (ii) the Borrower hereby authorizes the Administrative Agent to send directions to each Obligor to make such payments as directed by the Administrative Agent or to cause such remittances of ACH debits from an Obligors bank account to the bank account designated by the Administrative Agent."
"(ii) the Seller shall only be required to remit the aggregate Repurchase Price for any Collection Period into the Collection Account on such due date identified in the foregoing clause (i) up to the amount of any shortfall in Available Funds on deposit in the Collection Account at such time to make full distributions on the related Settlement Date to all Persons entitled thereto (or to the Reserve Account) pursuant to Section 3.02(a)(i) through (vii),"
"(iii) the Seller may pay any portion of the aggregate Repurchase Price not required to be remitted into the Collection Account pursuant to the foregoing clause (ii) directly to the Borrower or, at the sole option of the Borrower, such amount may be offset against a distribution of an equal amount to be made by the Borrower to LendingClub with respect to its Equity Interest in the Borrower (as long as, for the avoidance of doubt, the Borrower will be Solvent after making any such deemed distribution, there will be no Borrowing Base Deficiency or other Event of Default after giving effect thereto, and such deemed distribution complies with all applicable Requirements of Law); and"
"(b) Objections to Servicers Monthly Settlement Certificate. Notwithstanding anything to the contrary set forth in subsection (a) of this Section, if on or prior to 5:00 p.m. New York City time on the Business Day before any Settlement Date, the Paying Agent and the Servicer have received a written notice from the Administrative Agent that the Administrative Agent has made a good faith determination that the application of funds provided for in the Servicers Monthly Settlement Certificate submitted by the Servicer for such Settlement Date does not comply with this Section (which notice shall provide the detailed basis of any such determination), then (i) the Paying Agent shall not make any distributions in accordance with such Servicers Monthly Settlement Certificate; and (ii) the Servicer (or, if the Servicer fails to do so, the Administrative Agent) shall provide to the Paying Agent a revised Servicers Monthly Settlement Certificate reasonably acceptable to the Administrative Agent (or, in the case of the Administrative Agent, distribution instructions in a form reasonably acceptable to the Paying Agent) that are in compliance with this Section by no later than the Business Day following the Business Day on which such notice from the Administrative Agent has been received by the Servicer on or prior to 5:00 p.m. New York City time on such Business Day. The Paying Agent shall make the distributions set forth in subsection (a) of this Section on the Settlement Date based on such revised Servicers Monthly Settlement Certificate (or distribution instructions); provided, that if such revised Servicers Monthly Settlement Certificate (or distribution instructions) are received after 5:00 p.m. New York time on the Business Day before the scheduled Settlement Date, then the related Settlement Date shall be deemed to be the Business Day following the first Business Day on which such revised Servicers Monthly Settlement Certificate (or distribution instructions) has been received by the Paying Agent on or prior to 5:00 p.m. on such Business Day."
"(a) Payment of Obligations. Except with respect to Obligations to be paid from funds on deposit in the Collection Account, the Borrower shall remit any Obligation due hereunder or under any Transaction Document to the Paying Agent at its designated account not later than 12:00 noon, New York City time, on the date when due in immediately available funds. Any funds received after that time will be deemed to have been received on the next Business Day."
"(b) If at any time and in any context whatsoever the Account Bank or Paying Agent receives inconsistent or conflicting instructions with respect to disposition of funds or any other matter with respect to the Reserve Account or the Collection Account, (i) the instructions of the Collateral Trustee shall be controlling over all other instructions of any other Person and the Account Bank and Paying Agent shall be held harmless in following such instructions; and (ii) the Collateral Trustee shall have no duty or obligation to provide instructions with respect to any matter and if the Collateral Trustee declines to resolve a conflict in instructions or provide instructions with respect to any disposition of funds or other activity involving the Reserve Account or the Collection Account, then the instructions of the Administrative Agent shall be controlling over all other instructions of any other Person and the Account Bank and Paying Agent shall be held harmless in following such instructions."
"(b) Power and Authority; Enforceability. The Borrower has all requisite power and authority to own its properties, carry on its business as and where now being conducted and execute and deliver this Agreement and each other Transaction Document to which it is a party, perform all of its obligations hereunder and thereunder, and to carry out the transactions contemplated hereby and thereby. Each of this Agreement and each other Transaction Document to which the Borrower is party has been duly and validly executed and delivered by the Borrower and is a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency or other similar laws affecting creditors rights generally or general equitable principles (whether considered in a proceeding in equity or at law)."
"(c) Consents and Approvals. The Borrower has all qualifications, regulatory permissions and/or licenses necessary, and no consent, approval, authorization, registration, filing or order of any court or Governmental Authority is required, for the execution, delivery and performance by the Borrower of, or compliance by the Borrower with, this Agreement or any other Transaction Document to which it is a party, or the consummation of the transactions contemplated hereby (including the acquisition of the Purchased Receivables and other Purchased Assets by the Borrower from the Seller and the pledge and grant of the Purchased Receivables and other Purchased Assets by the Borrower to Collateral Trustee, for the benefit of the Secured Parties), except where the failure to do so could not reasonably be expected to result in a Material Adverse Change. "
"(ii) Immediately prior to the transfer to the Borrower, the Seller had good and marketable title to and was the sole legal owner of each Receivable that has become a Purchased Receivable; the Borrower validly purchased each such Receivable from the Seller, free and clear of any Liens (other than Permitted Liens), pursuant to the Receivables Purchase Agreement; the transfer of such Receivables pursuant to the Receivables Purchase Agreement constitutes a true sale or true contribution thereof from the Seller to the Borrower, and the ownership interest of the Borrower in each such Receivable is a valid, perfected, and continuing, first priority Security Interest therein that is effective against creditors of and transferees from the Seller and the Originator; the Seller has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any Purchased Receivable to any Person other than the Borrower; all of the foregoing representations with respect to the Purchased Receivables apply equally to any other Purchased Assets and Collateral that were subject to the Receivables Purchase Agreement."
"(v) The Borrower has good and marketable title to, and is the sole owner of, the Purchased Receivables; the Borrower has good and marketable title to, and is the sole owner of, all of its property, all of which is Collateral; the Borrower has the legal right to pledge and convey, and has validly pledged and conveyed, all of its right, title and interest in all of the Purchased Receivables and other Collateral to the Collateral Trustee, for the benefit of the Secured Parties, free and clear of any Liens, other than Permitted Liens; the Security Agreement, Collateral Control Agreement, and the Account Control Agreement, together with the UCC financing statements filed in connection therewith, are effective to create and maintain a valid, perfected, and continuing, first priority Security Interest in and Lien on the Collateral in favor of the Collateral Trustee, for the benefit of the Secured Parties; appropriate financing statements have been filed with the Secretary of State of the State of Delaware against the Borrower in favor of the Collateral Trustee, for the benefit of the Secured Parties, to perfect the Lien in the portion of the Collateral that can be perfected by filing."
"(l) Independent Consultation. The Borrower has consulted with its own legal counsel and independent accountants to the extent it has deemed necessary regarding the tax, accounting and regulatory consequences of the transactions contemplated by this Agreement and the other Transaction Documents to which it is party, and neither the Borrower nor any other LC Group Member is participating in such transactions in reliance on any representations of any Agent, Lender or any Affiliate or counsel of any of them, with respect to tax, accounting, regulatory or any other matters."
"(o) All Payments Made In Ordinary Course of Business. Each payment to any Lender in respect of any principal or interest on its Loan or other Obligation by or on behalf of the Borrower under or in connection with this Agreement shall be (i) a payment of a debt incurred by the Borrower in the ordinary course of business and financial affairs of the Borrower, and (ii) made in the ordinary course of business and financial affairs of the Borrower. In the event that the true sale of Purchased Receivables from the Seller to the Borrower is recharacterized by any court as a secured lending rather than a sale, each remittance of Collections of Purchased Receivables to the Borrower in accordance with this Agreement and the Servicing Agreement will have been (A) in payment of a debt incurred by the Seller in the ordinary course of business or financial affairs of the Seller and the Borrower, and (ii) made in the ordinary course of business or financial affairs of the Seller and the Borrower."
"(vi) No Pension Plan which is subject to Section 412 of the Code or Section 302 of ERISA has applied for or received an extension of any amortization period, within the meaning of Section 412 of the Code or Section 302 or 304 of ERISA. The Borrower, any Subsidiary, and any ERISA Affiliate have not ceased operations at a facility so as to become subject to the provisions of Section 4062(e) of ERISA, withdrawn as a substantial employer so as to become subject to the provisions of Section 4063 of ERISA or ceased making contributions to any Pension Plan subject to Section 4064(a) of ERISA to which it made contributions. None of the Borrower, any Subsidiary or any ERISA Affiliate have incurred or reasonably expect to incur any liability to PBGC, save for any liability for premiums due in the ordinary course or other liability which could not reasonably be expected to result in material liability, and no lien imposed under the Code or ERISA on the assets of the Borrower or any Subsidiary or any ERISA Affiliate exists or, to the knowledge of the Borrower, is likely to arise on account of any Plan. None of the Borrower, any Subsidiary or any ERISA Affiliate has engaged in a transaction described in Section 4069(a) or 4212(c) of ERISA."
"(vii) Borrower is not and is not acting on behalf of (A) an employee benefit plan as defined in Section 3(3) of the ERISA, that is subject to Title I of ERISA, (B) a plan as defined in and subject to Section 4975 of the Code, (C) any entity deemed to hold Plan Assets, or (D) any entity that is subject to State statutes regulating investments of, and fiduciary obligations with respect to, governmental plans (as such term is defined in Section 3(32) of ERISA), that would be violated by the transactions contemplated by this Agreement"
"(w) No Sanctions. Neither the Borrower nor any other LC Group Member nor, to the knowledge of the Borrower or any other LC Group Member, any director, officer, agent, employee or Affiliate of the Borrower or any such other LC Group Member (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 the Advances, 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 Lender or any Agent."
"(a) Notices; Deliverables; Limitations. Any Advance or Release, as the case may be, shall have been requested and made in compliance with, (i) with respect to any Advance, Section 2.01, and (ii) with respect to any Release, Section 2.04, including, without limitation, delivery of the applicable Advance Notice or Prepayment/Release Notice, as the case may be, as and when required thereunder."
"(g) Receivable Review. The Administrative Agent shall have performed (absent an Event of Default or unless the Borrower otherwise agrees, without the engagement of a third party verification agent to so perform), a review of the Receivable Document Packages for the Receivables subject to purchase on the Advance Date (if applicable), Purchased Receivables included in the Borrowing Base, Managed Pool Receivables, and other information regarding the Borrower, Seller or Servicer (including, without limitation, information requested pursuant to subsection (h) of this Section), and the Administrative Agent shall not have, on or prior to the applicable Activity Date, provided written notice to the Borrower and the Servicer of any material uncured Exception or potential failure of the conditions precedent set forth herein to be satisfied that, in either case, the Administrative Agent reasonably determines should result in a delay of such Advance or Release; provided, that any such review of Receivable Document Packages and other information by the Administrative Agent shall not limit the reliance by the Administrative Agent and the Lenders on the representations and warranties of the Borrower, Seller and Servicer made hereunder, under any other Transaction Document, or under any instrument, certificate or other document delivered in connection herewith or therewith."
"(h) Additional Information. The Borrower shall have provided, or shall have caused the Servicer to provide, to the Administrative Agent, all other information that the Administrative Agent may reasonably require upon reasonable advance notice thereof in connection with such Advance or Release and satisfaction of the conditions precedent thereto set forth herein."
"(g) Separate Existence. The Borrower hereby acknowledges that the Administrative Agent and the Lenders are entering into the transactions contemplated by this Agreement in reliance upon the Borrowers identity as a separate legal entity from LendingClub and from each such other LC Group Member. The Borrower shall observe and comply with the separateness covenants set forth on Schedule VI, and the separateness covenants set forth in the Borrower Organizational Documents."
"(i) Inspections. Once per calendar year (or, after the occurrence of any Default, Event of Default, Servicer Default, Seller Default, or Amortization Event, as frequently as requested by the Administrative Agent), at the expense of the Borrower, the Administrative Agent (or its designee) may, and is hereby authorized to, upon reasonable notice and during regular business hours (i) examine via WebEx or other similar online platform or at the offices of the Borrower, Seller, or Servicer (at any location where it keeps records with respect to the Borrower) all books, records and documents (including computer tapes and disks), and (ii) visit the offices and properties of the Borrower, Seller, and/or Servicer and engage in discussions with any of the officers, employees or independent public accountants of any of them having knowledge within the scope of such inspection, in the case of either clause (i) or clause (ii), for the purpose of examining such materials and to discuss matters relating to the Purchased Receivables, the performance of (or ability or inability to perform under) any Transaction Document by the Borrower, Seller, or Servicer, and the business of any of the foregoing. For avoidance of doubt, except to the extent necessary for the Secured Parties to enforce rights against the Collateral after an Event of Default (including, without limitation, access to the Receivables Documents by a successor Servicer), nothing in this provision shall require the Borrower, LendingClub, or any Subsidiary thereof to disclose to any Agent or any other Person: (A) any attorney work product or records subject to attorney-client privilege if such disclosure would cause a loss of the attorney-client privilege in connection with active litigation to the detriment of the Borrower, Seller, or Servicer, (B) any records subject to a binding, noncancellable confidentiality agreement with a third party, the disclosure of which would violate such confidentiality agreement, unless the Administrative Agent or its representative could, pursuant to the terms thereof, agree to confidentiality restrictions or other terms in order to gain access, and such Agent or its representative agrees to such terms, provided, that during the continuance of an Event of Default, the Borrower shall, and shall cause the Seller and Servicer to, take all actions possible to make such disclosure to the Administrative Agent in a manner that does not violate any outstanding confidentiality agreement, or (C) any records the disclosure of which to the Administrative Agent or its representative (including on a confidential basis), as confirmed in an opinion of counsel to the Borrower, Seller or Servicer, as applicable, delivered to the Administrative Agent, is prohibited by applicable law and there is no manner to disclose such information (or any portion thereof) without violating applicable law; provided, that such disclosure shall be made to the fullest extent permitted by applicable law; and provided, further, that during the continuance of an Event of Default, the Borrower shall, and shall cause the Seller and Servicer, to take all possible actions to provide such disclosure in a manner that will not violate applicable law."
"(l) Compliance Certificates. Together with any financial statements of the Borrower or LendingClub delivered pursuant to subsection (k) of this Section, the Borrower shall deliver to the Administrative Agent (which notice the Administrative Agent shall promptly make available to the Lenders in accordance with its customary practice), a Financials Compliance Certificate signed by a financial officer that is an Authorized Officer of each of Borrower and LendingClub"
"(d) Investments. The Borrower shall not, directly or indirectly, (i) merge with, purchase, own, hold, invest in or otherwise acquire any Equity Interests of, or any other security or interest in, all or substantially all of the assets of, any Person or any joint venture or (ii) make or permit to exist any loan, advances or guarantees to or for the benefit of any Person or assume, guarantee, endorse, contingently agree to purchase or otherwise become liable for or upon or incur any obligation of any Person (other than the ownership of the Receivables, Receivable Document Packages and other Purchased Assets and proceeds of the foregoing as herein contemplated), except, in each clause (i) and (ii), ownership of securities, obligations and other investments received in settlement of amounts due to the Borrower effected in the ordinary course of business or owing to the Borrower as a result of Insolvency Proceeding involving any Obligor of any Receivable. The Borrower shall not purchase, lease, own, operate, hold, invest in or otherwise acquire any property or asset that is located outside of the continental United States, except assets received in settlement of amounts due to the Borrower effected in the ordinary course of business or owing to the Borrower as a result of Insolvency Proceeding involving any Obligor of any Receivable. The Borrower shall not have any Subsidiaries. The Borrower shall direct or cause the Servicer to liquidate any such securities, investments or other property of any type (other than cash or cash equivalents) received as proceeds of or otherwise in connection with any Purchased Receivable or other Collateral as quickly as reasonably possible and deposit the net cash proceeds therefrom into the Collection Account."
"(v) any representation, statement or warranty made or deemed made by the Borrower herein, in any other Transaction Document, or in any other document, report, certificate or instrument delivered in conjunction herewith or therewith shall not be true and correct in all material respects (except to the extent already qualified by materiality, in which case it shall not be true and correct in all respects) on the date when made or deemed to have been made, and the foregoing shall remain unremedied for thirty (30) days from the earlier of knowledge of, or written notice to, either the Borrower or LendingClub thereof;"
"(vii) failure of (A) the Collateral Trustee, for the benefit of the Secured Parties, to have a valid and perfected first priority security interest in the Collateral, free of all Liens (other than Permitted Liens); or (B) the Borrower to have a valid and perfected first priority ownership interest in the Purchased Receivables and other related Purchased Assets purported to be sold to the Borrower by the Seller, free of all Liens (other than Permitted Liens);"
"SECTION 7.03 Securitization Cooperation. While an Event of Default exists, upon reasonable request of the Administrative Agent in connection with a proposed securitization pursuant to which the Administrative Agent would arrange for an issuance of asset-backed securities secured by all or any portion of the Collateral, the Borrower shall, or shall cause the Servicer and the Seller to, promptly provide the Administrative Agent with all information, reports, and documentation reasonably requested by the Administrative Agent, any rating agency or any arranger with respect to the Purchased Receivables, the Borrower, the Seller, the Servicer and other matters that could affect the securitization and that are customary in a securitization of consumer loans originated through the LendingClub platform or otherwise involving Seller; provided that the Administrative Agent shall get customary confidentiality agreements from underwriters and other third parties with respect to any such information that is confidential, including, without limitation, an agreement or requirement to comply with all applicable Requirements of Law with respect to any use and disclosure of Obligor Information."
"SECTION 8.04 Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Transaction Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Transaction 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:"
"(b) Electronic Communications. Notices and other communications hereunder or under any other Transaction Document may be delivered or furnished by electronic communication (including email 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 pursuant to Article II if such Lender has notified the Administrative Agent and the Borrower that it is incapable of receiving notices under such Article by electronic communication. 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), 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 therefore; provided that, for both clauses (i) and (ii) above, if such notice, email 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. The use of electronic communications to deliver notices shall not preclude the use of mail or pre-paid courier service as described in Section 9.07(a)."
"SECTION 9.12 Submission to Jurisdiction. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, OR ANY LEGAL PROCESS WITH RESPECT TO ITSELF OR ANY OF ITS PROPERTY, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH OF THE PARTIES HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW."
"SECTION 9.13 Waiver of Jury Trial. THE PARTIES HERETO EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY PARTY AGAINST THE OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THE PARTIES HERETO EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT."
"This Advance Notice is delivered to you pursuant to Section 2.01 of that certain Warehouse Credit Agreement, dated as of October 10, 2017 (as amended, supplemented, restated or otherwise modified, the Credit Agreement), among LendingClub Warehouse I LLC (the Borrower), Wilmington Trust, National Association, as Paying Agent (in such capacity, Paying Agent) and Collateral Trustee (in such capacity, Collateral Trustee), the Lenders from time to time party thereto (the Lenders), and [***]*, as Administrative Agent (in such capacity, the Administrative Agent). Unless otherwise defined herein or as the context otherwise requires, terms used herein have the meaning assigned thereto under the Credit Agreement."
"Borrower hereby directs the Administrative Agent, on the Advance Date to (i) deposit the portion of the Advance equal to the Required Reserve Amount Deposit Amount into the Reserve Account; and (ii) wire the remaining proceeds of the Advance directly to the Seller, as designee of the Borrower, using the wire instructions set forth above, which shall constitute a payment in respect of the Borrowers obligation to the Seller to deliver the purchase price for the Receivables and other Purchased Assets being acquired by the Borrower from the Seller (and pledged by Borrower to the Collateral Trustee) on the applicable Advance Date."
"(f) Seller has delivered to the Custodian and the Custodian has sole possession (with control by the Collateral Trustee, for the benefit of the Secured Parties), of the Receivable Document Packages with respect to the Receivables to be transferred to the Borrower on the related Advance Date, and such other documentation and information (or Data File) as required under the Collateral Control Agreement or reasonably requested by the Custodian, all of the foregoing of which shall be true, complete and correct in all material respects on the date hereof and on the Advance Date."
"(b) agrees that it will, independently and without reliance upon the Administrative Agent, any other Agent, the Assignor 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 in taking or not taking action under the Credit Agreement;"
"ATTACHMENTS: DATA FILE WITH COMPLETION OF INFORMATION PER ALL TABS INCLUDING DATA TAB (WITH RECEIVABLES DATA), ADVANCE RATE MODEL (SHOWING ADVANCE RATE CALCULATION); BORROWING BASE TAB (SHOWING BORROWING BASE CALCULATION), BAM! TAB (BUSINESS ACTIVITY MONITORING DATA), LOSS CALCULATION TAB (SHOWING CALCULATION OF VINTAGE LOSS PERCENTAGE); AND SERVICER REPORT TAB (SHOWING COMPLIANCE WITH DELINQUENCY RATIO, VINTAGE LOSS RATIO, AND OTHER APPLICABLE INFORMATION)"
"(iii) Portfolio Report providing (A) collections activity with respect to the Collateral for the immediately preceding Collection Period, (B) a detailed calculation of (1) the Delinquency Ratio as of the last day of the immediately preceding Collection Period and the three-month average of the Delinquency Ratios as of the last day of the three most recent Collection Periods; (2) the Vintage Loss Percentage (including, without limitation, each component thereof set forth on Schedule II to the Credit Agreement) as of the last day of the preceding Collection Period, (3) the Cohort Loss Value determined pursuant to the Model used to calculate the Advance Rate and the other applicable data (including, without limitation, with respect to any applicable adjustments forming part of such Advance Rate calculation) used in such Model (as referred to in Schedule II to the Credit Agreement), and (4) the income verification percentage of Eligible Receivables that are Purchased Receivables as of the last day of the preceding Collection Period;"
"This AMENDED AND RESTATED CREDIT AGREEMENT (this Agreement) is entered into as of October 17, 2017 among NEWPARK RESOURCES, INC., a Delaware corporation (Newpark), NEWPARK DRILLING FLUIDS LLC, a Texas limited liability company (Newpark Drilling), NEWPARK MATS & INTEGRATED SERVICES LLC, a Texas limited liability company (Newpark Mats), EXCALIBAR MINERALS LLC, a Texas limited liability company (Excalibar), and DURA-BASE NEVADA, INC., a Nevada corporation (Dura-Base and collectively with Newpark Drilling, Newpark Mats, Excalibar, and Newpark and any other Subsidiary of Newpark that may from time to time become a party hereto in accordance with the terms hereof, the Borrowers and each a Borrower), each lender from time to time party hereto (collectively, the Lenders and individually, a Lender), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and an L/C Issuer."
"Assignment and Assumption means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit E-1 or any other form (including an electronic documentation form generated by use of an electronic platform) approved by the Administrative Agent."
"(d) Investments, classified in accordance with GAAP as current assets of Newpark or any of its Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions that have the highest rating obtainable from either Moodys or S&P, and the portfolios of which are limited solely to Investments of the character, quality and maturity described in clauses (a), (b) and (c) of this definition."
"Change in Law means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority, provided, that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank"
"(a) any person or group (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the beneficial owner (as defined in Rules 13d3 and 13d5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have beneficial ownership of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an option right)), directly or indirectly, of 30% or more of the equity securities of Newpark entitled to vote for members of the board of directors or equivalent governing body of Newpark on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or"
"Consolidated Funded Indebtedness means, as of any date of determination, for Newpark and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (b) all purchase money Indebtedness, (c) all direct obligations arising under letters of credit (including standby and commercial), bankers acceptances, bank guaranties, surety bonds and similar instruments, (d) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business), (e) all Attributable Indebtedness, (f) without duplication, all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a) through (e) above of Persons other than Newpark or any Subsidiary, and (g) all Indebtedness of the types referred to in clauses (a) through (f) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which Newpark or a Subsidiary is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to such Person; provided that there shall be deducted from Consolidated Funded Indebtedness the amount of any funds deposited in an escrow account with the Administrative Agent or borrowed for the payment of the 2017 Convertible Notes or the 2021 Convertible Notes, in each case in accordance with Section 7.14."
"Consolidated Tangible Assets means, with respect to any Person as of any date, the amount which, in accordance with GAAP, would be set forth under the caption Total Assets (or any like caption) on a consolidated balance sheet of such Person and its consolidated Subsidiaries, less all assets that are considered to be intangible assets under GAAP, including customer lists, goodwill, computer software, copyrights, trade names, trademarks, patents, franchises, licenses, unamortized deferred charges, unamortized debt discount and capitalized research and development costs."
"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."
"Environmental Laws means any and all federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses and agreements issued by or entered into with any Governmental Authority or any restrictions by any Governmental Authority, in each case relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems."
"Excluded Swap Obligation means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Loan Party of, or the grant by such 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 Loan Partys failure for any reason to constitute an eligible contract participant as defined in the Commodity Exchange Act (determined after giving effect to Section 10.19 and any other keepwell, support or other agreement for the benefit of such Loan Party and any and all guarantees of such Loan Partys Swap Obligations by other Loan Parties) at the time the Guarantee of such Loan Party, or a grant by such Loan Party of a security interest, becomes 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 excluded in accordance with the first sentence of this definition."
"Excluded Taxes means, with respect to any Recipient of any payment to be made by or on account of any obligation of any Borrower hereunder, (a) Taxes imposed on or measured by its overall net income (however denominated), and franchise Taxes imposed on it (in lieu of net income Taxes), by the United States, any State or the District of Columbia (or any political subdivision thereof) or by the jurisdiction (or any political subdivision thereof) under the Laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, (b) any branch profits Taxes imposed by the United States, (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by a Borrower under Section 10.13), any United States withholding Tax that (i) is required to be imposed on amounts payable to such Foreign Lender pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or (ii) is attributable to such Foreign Lenders failure or inability (other than as a result of a Change in Law) to comply with clause (B) of Section 3.01(e)(ii), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from any Borrower with respect to such withholding Tax pursuant to Section 3.01(a) and (d) any U.S. federal withholding Taxes imposed by FATCA."
"Financial Covenant Trigger Period means, the period (a) commencing on the day that Availability is less than the greater of 15% of the Aggregate Commitments or $22,500,000 and (b) continuing until, during each of the preceding 30 consecutive days, Availability has at all times exceeded the greater of 15% of the Aggregate Commitments and $22,500,000."
"Fronting Exposure means, at any time there is a Defaulting Lender, (a) with respect to the L/C Issuers, such Defaulting Lenders Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lenders participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lenders, 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 Lenders or Cash Collateralized in accordance with the terms hereof."
"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 any supra-national bodies such as the European Union or the European Central Bank)."
"Liquidity means, as of any date of determination, the sum of (i) all unrestricted cash balances in domestic deposit accounts of the Borrowers as of such date to the extent such cash balances are not included in the Borrowing Base as Eligible Pledged Cash plus unrestricted domestic Cash Equivalents of the Borrowers as of such date to the extent such Cash Equivalents are not included in the Borrowing Base as Eligible Pledged Cash plus (ii) Availability."
"Loan Documents means, collectively, (a) this Agreement, (b) the Notes, (c) any Guaranty, (d) the Collateral Documents, (e) the Fee Letters, (f) each Issuer Document, (g) any arrangements entered into by any L/C Issuer and any Borrower pursuant to Section 2.03(a)(iii)(E), (h) any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.15 of this Agreement and (i) all Loan Documents (as defined in the Existing Credit Agreement) executed and delivered pursuant to the Existing Credit Agreement (except to the extent any of the same are amended and restated pursuant hereto or in connection herewith), whether or not expressly so stated in any other definition of the agreements, instruments and other documents described in the foregoing clauses (a) through (h) set forth herein or in any other Loan Document."
"Material Loan Party shall mean (a) each Borrower and (b) any Subsidiary that (A) owns any Collateral, (B) generates more than 5.0% of Consolidated EBITDA for the Measurement Period most recently ended for which financial statements of Newpark are available or (C) owns net assets that have an aggregate Fair Market Value of 5.0% or more of Consolidated Tangible Assets of Newpark as of the end of the previous fiscal quarter."
"Minimum Collateral Amount means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during any period when a Lender constitutes a Defaulting Lender, an amount equal to 103% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time, (b) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.15(a)(i) or (a)(ii), an amount equal to 103% of the Outstanding Amount of all L/C Obligations, and (c) otherwise, an amount determined by the Administrative Agent and the L/C Issuer in their reasonable discretion."
"NOLV Percentage means the net orderly liquidation value of Inventory, expressed as a percentage, 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 appraisal of the applicable Borrowers Inventory or Mats Rental Inventory, as applicable, performed by an appraiser and on terms satisfactory to the Administrative Agent."
"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)."
"Outstanding Amount means (a) with respect to Revolving Credit Loans and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Revolving Credit Loans and Swing Line Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the 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 Borrowers of Unreimbursed Amounts."
"Pending Wage and Hour Litigation means Davida v. Newpark Drilling Fluids LLC pending in the U.S. District Court for the Western District of Texas, San Antonio Division, alleging violations of the Fair Labor Standards Act, and the similar pending lawsuits alleging Fair Labor Standards Act claims filed by eight independent contractors and two employees against Newpark Drilling."
"Plan means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of any Borrower or any ERISA Affiliate or any such Plan to which any Borrower or any ERISA Affiliate is required to contribute on behalf of any of its employees."
"Request for Credit Extension means (a) with respect to a Revolving Credit Borrowing, conversion or continuation of Revolving Credit Loans, a Revolving Credit Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice."
"Secured Parties means, collectively, the Administrative Agent, the Lenders, the L/C Issuers, the Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05, and the other Persons the Obligations owing to which are or are purported to be secured by the Collateral under the terms of the Collateral Documents."
"Secured Party Designation Notice means a notice from any Lender or an Affiliate of a Lender, substantially in the form of Exhibit G, (a) describing the Secured Cash Management Agreement or Secured Hedge Agreement and setting forth the maximum amount to be secured by the Collateral and the methodology to be used in calculating such amount and (b) agreeing to be bound by Section 9.11."
"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 Newpark."
"Value means, (a) for an Account, its face amount, net of any returns, rebates, discounts (calculated on the shortest terms), credits, allowances or Taxes (including sales, excise or other taxes) that have been or could properly be claimed by the Account Debtor or any other Person; and (b) for Inventory, its value determined on the basis of the lower of cost or market, calculated on a first-in, first out basis, and excluding any portion of cost attributable to intercompany profit among the Borrowers and their Affiliates."
"in the applicable Revolving Credit Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent shall make all funds so received available to the applicable Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of such Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by Newpark; provided, however, that if, on the date a Revolving Credit Loan Notice with respect to a Revolving Credit Borrowing is given by Newpark, there are L/C Borrowings outstanding, then the proceeds of such Revolving Credit Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings, and second, shall be made available to the applicable Borrower as provided above."
"(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without the consent of the Required Lenders."
"(e) After giving effect to all Revolving Credit Borrowings, all conversions of Revolving Credit Loans from one Type to the other, and all continuations of Revolving Credit Loans as the same Type, there shall not be more than five (5) Interest Periods in effect with respect to Eurodollar Rate Loans at any one time"
"(c) Drawings and Reimbursements; Funding of Participations. (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 Newpark and the Administrative Agent thereof. Not later than 10:00 a.m. on the date of any payment by the applicable L/C Issuer under a Letter of Credit (each such date, an Honor Date), the Borrowers shall reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing. If the Borrowers fail to so reimburse the applicable L/C Issuer by such time, the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the Unreimbursed Amount), and the amount of such Lenders Applicable Percentage thereof. In such event, the Borrowers shall be deemed to have requested a Revolving Credit 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 Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Revolving Credit 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."
"(v) Each 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 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, the Borrowers 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 Revolving Credit Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by Newpark of a Revolving Credit Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrowers to reimburse the applicable 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."
"(ii) the existence of any claim, counterclaim, setoff, defense or other right that any 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), any L/C Issuer or any other Person, whether in connection with this Agreement or such Letter of Credit, the transactions contemplated hereby or any agreement or instrument relating thereto, or any unrelated transaction;"
"(iii) any draft, demand, endorsement, certificate or other document presented under or in connection with such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;"
"(vi) any payment made by any 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;"
"(f) Role of L/C Issuers. Each Lender and the Borrowers agree that, in paying any drawing under a Letter of Credit, no L/C Issuer shall have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. Each Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude such Borrowers pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement or otherwise. None of the L/C Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuers shall be liable or responsible for any of the matters described in clauses (i) through (viii) of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, a Borrower may have a claim against any L/C Issuer, and any L/C Issuer may be liable to such Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by such Borrower which such Borrower proves, as determined by a final nonappealable judgment of a court of competent jurisdiction, were caused by such L/C Issuers willful misconduct or gross negligence or such L/C Issuers willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, any L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and such L/C Issuer shall not"
"the other Lenders set forth in this Section 2.04, make loans (each such loan, a Swing Line Loan) to the Borrowers 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 its Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Revolving Credit Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lenders Commitment; provided, however, that (i) after giving effect to any Swing Line Loan, (A) the Total Outstandings shall not exceed the Borrowing Base at such time, (B) the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender at such time, plus such Lenders Applicable Percentage of the Outstanding Amount of all L/C Obligations at such time, plus such Lenders Applicable Percentage of the Outstanding Amount of all Swing Line Loans at such time shall not exceed such Lenders Commitment, (C) the aggregate Outstanding Amount of all Swing Line Loans at any time shall not exceed the Total Swing Line Sublimit and provided further that the Borrowers shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan, and (ii) no Swing Line Lender shall be under any obligation to make any Swing Line Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Credit Extension may have, Fronting Exposure. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall bear interest only at a rate based on the Base Rate. Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lenders Applicable Percentage times the amount of such Swing Line Loan."
"(iv) Each Lenders obligation to make Revolving Credit Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(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 the applicable Swing Line Lender, the Borrowers 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"
"(e) Interest for Account of Swing Line Lender. Each Swing Line Lender shall be responsible for invoicing the Borrowers for interest on such Swing Line Lenders Swing Line Loans (provided that any failure of a Swing Line Lender to provide an invoice for interest on Swing Line Loans shall not release the Borrowers from their obligation to pay such interest). Until each Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance such Lenders Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable Percentage shall be solely for the account of the applicable Swing Line Lender."
"(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 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."
"(b) 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 Swing Line 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."
(f) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
"Each Borrower 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 such Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation."
"(a) Certain Credit Support Events. Upon the request of the Administrative Agent or any 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 Borrowers 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, the L/C Issuers or the Swing Line Lenders, the Borrowers shall deliver to the Administrative Agent Cash Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (ii) above, after giving effect to Section 2.16(a)(iv) and any Cash Collateral provided by the Defaulting Lender)."
"(ii) Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 10.08), 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 that Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to the L/C Issuers or Swing Line Lenders hereunder; third, to Cash Collateralize the applicable L/C Issuers Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.15; fourth, as Newpark 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 Newpark, to be held in a non-interest bearing deposit account and released in order to (A) satisfy potential future obligations of that Defaulting Lender to fund Loans under this Agreement and (B) Cash Collateralize the applicable L/C Issuers future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.15; sixth, to the payment of any amounts owing to the Lenders, the L/C Issuers or Swing Line Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuers or Swing Line Lenders against that Defaulting Lender as a result of that 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"
"(b) Defaulting Lender Cure. If Newpark, the Administrative Agent, Swing Line Lenders and the L/C Issuers agree in writing in their sole discretion that a Defaulting 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 Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Revolving Credit Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (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 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."
"(ii) The Administrative Agent and the Lenders may, in their discretion, pursue such rights and remedies as they deem appropriate, including realization upon Collateral by judicial foreclosure or nonjudicial sale or enforcement, without affecting any rights and remedies under this Section 2.18. If, in taking any action in connection with the exercise of any rights or remedies, the Administrative Agent or any Lender shall forfeit any other rights or remedies, including the right to enter a deficiency judgment against any Borrower or other Person, whether because of any applicable Laws pertaining to election of remedies or otherwise, each Borrower consents to such action and waives any claim based upon it, even if the action may result in loss of any rights of subrogation that any Borrower might otherwise have had. Any election of remedies that results in denial or impairment of the right of the Administrative Agent or any Lender to seek a deficiency judgment against any Borrower shall not impair any other Borrowers obligation to pay the full amount of the Obligations. Each Borrower waives all rights and defenses arising out of an election of remedies, such as nonjudicial foreclosure with respect to any security for Obligations, even though that election of remedies destroys such Borrowers rights of subrogation against any other Person. The Administrative Agent may bid Obligations, in whole or part, at any foreclosure, trustee or other sale, including any private sale, and the amount of such bid need not be paid by the Administrative Agent but shall be credited against the Obligations. The amount of the successful bid at any such sale, whether the Administrative Agent or any other Person is the successful bidder, shall be conclusively deemed to be the fair market value of the Collateral, and the difference between such bid amount and the remaining balance of the Obligations shall be conclusively deemed to be the amount of the Obligations guaranteed under this Section 2.18, notwithstanding that any present or future law or court decision may have the effect of reducing the amount of any deficiency claim to which the Administrative Agent or any Lender might otherwise be entitled but for such bidding at any such sale."
"(ii) If any Borrower makes a payment under this Section 2.18 of any Obligations (other than amounts for which such Borrower is primarily liable) (a Guarantor Payment) that, taking into account all other Guarantor Payments previously or concurrently made by any other Borrower, exceeds the amount that such Borrower would otherwise have paid if each Borrower had paid the aggregate Obligations satisfied by such Guarantor Payments in the same proportion that such Borrowers Allocable Amount bore to the total Allocable Amounts of all Borrowers, then such Borrower shall be entitled to receive contribution and"
"(d) Joint Enterprise. Each Borrower has requested that the Administrative Agent and the Lenders make this credit facility available to Borrowers on a combined basis, in order to finance the Borrowers business most efficiently and economically. The Borrowers business is a mutual and collective enterprise, and the successful operation of each Borrower is dependent upon the successful performance of the integrated group. The Borrowers believe that consolidation of their credit facility will enhance the borrowing power of each Borrower and ease administration of the facility, all to their mutual advantage. The Borrowers acknowledge that the Administrative Agents and the Lenders willingness to extend credit and to administer the Collateral on a combined basis hereunder is done solely as an accommodation to the Borrowers and at the Borrowers request."
"3.01 Taxes. (a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes. (i) Any and all payments by or on account of any obligation of the Borrowers hereunder or under any other Loan Document shall to the extent permitted by applicable Laws be made free and clear of and without reduction or withholding for any Taxes. If, however, applicable Laws require an applicable withholding agent to withhold or deduct any Tax, such Tax shall be withheld or deducted in accordance with such Laws as determined by Newpark or the Administrative Agent, as the case may be, upon the basis of the information and documentation to be delivered pursuant to subsection (e) below."
"(e) Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to Newpark and the Administrative Agent, at the time or times reasonably requested by Newpark or the Administrative Agent, such properly completed and executed documentation reasonably requested by Newpark or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by Newpark or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by Newpark or the Administrative Agent as will enable Newpark 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 3.01(e)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the 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. 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 an L/C Issuer, or have any obligation to pay to any Lender or any L/C Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such Lender or such L/C Issuer, as the case may be. If the Administrative Agent, any Lender or any L/C Issuer determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrowers or with respect to which the Borrowers have paid additional amounts pursuant to this Section, it shall pay to the Borrowers an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrowers under this Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses incurred by the Administrative Agent, such Lender or such L/C Issuer, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Borrowers, upon the request of the Administrative Agent, such Lender or such L/C Issuer, agree to repay the amount paid over to the Borrowers (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent, such Lender or such L/C Issuer in the event the Administrative Agent, such Lender or such L/C Issuer is required to repay such refund to such Governmental Authority. This subsection shall not be construed to require the Administrative Agent, any Lender or any L/C Issuer to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the Borrowers or any other Person."
"and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or such L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or such L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or such L/C Issuer, the Borrowers will pay to such Lender or such L/C Issuer, as the case may be, such additional"
"(b) Capital Requirements. If any Lender or any L/C Issuer determines that any Change in Law affecting such Lender or such L/C Issuer or any Lending Office of such Lender or such Lenders or such L/C 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 such L/C Issuers capital or on the capital of such Lenders or such L/C Issuers holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swing Line Loans held by, such Lender, or the Letters of Credit issued by such L/C Issuer, to a level below that which such Lender or such L/C Issuer or such Lenders or such L/C Issuers holding company could have achieved but for such Change in Law (taking into consideration such Lenders or such L/C Issuers policies and the policies of such Lenders or such L/C Issuers holding company with respect to capital adequacy), then from time to time the Borrowers will pay to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer or such Lenders or such L/C Issuers holding company for any such reduction suffered."
including any loss of anticipated profits and 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 Borrowers shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
"(x) financial projections of Newpark and its Subsidiaries on a consolidated basis prepared by management of Newpark, including consolidated balance sheets and statements of income or operations and cash flows of Newpark and its Subsidiaries on an annual basis for each of Newparks fiscal years 2017 through 2021, in form and substance reasonably satisfactory to the Administrative Agent;"
"4.03 Existing Credit Agreement Amended and Restated. Upon satisfaction on the Closing Date of all of the conditions specified in Sections 4.01 and 4.02, (a) this Agreement shall amend and restate the Existing Credit Agreement in its entirety, (b) each of the Loans (as such term is defined in the Existing Credit Agreement) outstanding under the Existing Credit Agreement on the Closing Date shall, for purposes of this Agreement and the Loan Documents, be included as Loans and Obligations hereunder and thereunder, (c) all Liens securing obligations under the Existing Credit Agreement and the Loan Documents executed pursuant thereto shall be automatically continued as security for the Obligations, and (d) each Lender who holds Loans in an aggregate amount less than its Applicable Percentage (after giving effect to the amendment and restatement of the Existing Credit Agreement in the form of this Agreement) of all Loans shall advance new Loans which shall be disbursed to the Administrative Agent and used to repay Loans outstanding to each Lender who holds Loans in an aggregate amount greater than its Applicable Percentage of all Loans."
"5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of any Borrower, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against Newpark or any of its Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document or (b) either individually or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect."
"5.08 Ownership of Property; Liens; Investments. Each of Newpark and its Subsidiaries has good title to, or valid leasehold interests in, all of their respective property necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect."
"(c) Neither Newpark nor any of its Subsidiaries is undertaking, and has not completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of any Governmental Authority or the requirements of any Environmental Law except for any investigations, assessments or remedial or response actions not reasonably expected to result in any material liability to Newpark or any of its Subsidiaries. Newpark and its Subsidiaries have disposed of all Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property currently or formerly owned or operated by Newpark or any of its Subsidiaries in accordance with the requirements of all Environmental Laws in all material respects and in a manner not reasonably expected to result in material liability to Newpark or any of its Subsidiaries."
"(d) Newpark and each of its Subsidiaries have obtained all Environmental Permits necessary for the ownership and operation of its properties and assets and the conduct of its business except where the failure to do so could, either individually or in the aggregate, reasonably be expected to result in material liability to Newpark or any of its Subsidiaries. Except where the failure to do so could not, either individually or in the aggregate, reasonably be expected to cause a Material Adverse Effect, Newpark and each of its Subsidiaries have been and are in compliance with all terms and conditions of such Environmental Permits. There are no pending or, to the knowledge of Newpark, threatened, claims against Newpark or any Subsidiary under any Environmental Laws, and neither Newpark nor any Subsidiary has received any written notice of alleged non-compliance with applicable Environmental Laws or Environmental Permits which could, in each case, either"
"5.13 Subsidiaries; Equity Interests; Loan Parties. As of the Closing Date, Newpark has no Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.13, and all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and non-assessable and are owned by Newpark or its Subsidiaries in the amounts specified on Part (a) of Schedule 5.13 free and clear of all Liens except those created under the Collateral Documents and Liens permitted under Section 7.01(c) and (h). As of the Closing Date, no Loan Party has any equity investments in any other corporation or entity other than those specifically disclosed in Part (b) of Schedule 5.13. Set forth on Part (c) of Schedule 5.13 is a complete and accurate list of all Loan Parties, showing as of the Closing Date (as to each Loan Party) the jurisdiction of its incorporation, the address of its principal place of business and its U.S. taxpayer identification number or, in the case of any non-U.S. Loan Party that does not have a U.S. taxpayer identification number, its unique identification number issued to it by the jurisdiction of its incorporation. As of the Closing Date, each of Newpark Environmental Water Solutions, LLC, Newpark Drilling Fluids Holdings LLC, Newpark Texas, L.L.C., Newpark Drilling Fluids Asia Pacific LLC and Newpark Drilling Fluids Personnel Services LLC is an Immaterial Domestic Subsidiary."
"5.15 Disclosure. Each Borrower has disclosed to the Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries or any other Loan Party is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. No report, financial statement, certificate or other information furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case as modified or supplemented by other information so furnished) contains any 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; provided that, with respect to projected information, each Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time, recognizing that there"
"(a) as soon as available, but in any event within 90 days after the end of each fiscal year of Newpark (or, if earlier, 15 days after the date required to be filed with the SEC), a consolidated balance sheet of Newpark and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, changes in shareholders equity, and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any going concern or like qualification or exception or any qualification or exception as to the scope of such audit;"
"(d) as soon as available, but in any event not later than 45 days after the end of each fiscal year of Newpark, financial projections of Newpark and its Subsidiaries on a consolidated basis prepared by management of Newpark, in form reasonably satisfactory to the Administrative Agent and the Required Lenders, including consolidated balance sheets and statements of income or operations and cash flows of Newpark and its Subsidiaries on a quarterly basis for the immediately following fiscal year (including the fiscal year in which the Maturity Date occurs); and"
"(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of Newpark or any of its Subsidiaries, or any audit of any of them;"
"(h) not later than five Business Days after receipt thereof by Newpark or any Subsidiary, copies of all material notices, requests and other documents (including amendments, waivers and other modifications) received under or pursuant to any instrument, indenture, loan or credit or similar agreement and, from time to time upon request by the Administrative Agent, such information and reports regarding such instruments, indentures and loan and credit and similar agreements as the Administrative Agent may reasonably request;"
"Newpark hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of Newpark hereunder (collectively, Borrower Materials) by posting the Borrower Materials on IntraLinks, Debt Domain, Syndtrak, ClearPar, or another similar electronic system (the Platform) and (b) certain of the Lenders (each, a Public Lender) may have personnel who do not wish to receive material non-public information with respect to Newpark or its Subsidiaries, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons securities. Newpark hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked PUBLIC which, at a minimum, shall mean that the word PUBLIC shall appear prominently on the first page thereof; (x) by marking Borrower Materials PUBLIC, Newpark shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to Newpark or its securities for purposes of United States federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); (y) all Borrower Materials marked PUBLIC are permitted to be made available through a portion of the Platform designated Public Side Information; and (z) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked PUBLIC as being suitable only for posting on a portion of the Platform not designated Public Side Information."
"6.04 Payment of Obligations. Pay and discharge as the same shall become due and payable, all its material obligations and liabilities, including (a) all Tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by Newpark or such Subsidiary; (b) all lawful claims which, if unpaid, would by law become a Lien upon its property; and (c) all Indebtedness, as and when due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness."
"6.10 Inspection Rights. (a) Permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to Newpark; provided, however, that when an Event of Default exists the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Borrowers at any time during normal business hours and without advance notice."
"6.11 Use of Proceeds. Use the proceeds of the Credit Extensions to refinance existing indebtedness, issue standby or commercial letters of credit, finance ongoing working capital needs and for other general corporate purposes not in contravention of any Law or of any Loan Document and subject to the limitations in Section 7.10."
"6.12 Covenant to Guarantee Obligations and Give Security. (a) With respect to (x) any Person that becomes a direct or indirect Subsidiary after the Closing Date (other than a CFC, a Subsidiary that is held directly or indirectly by a CFC or any Immaterial Domestic Subsidiary created or acquired after the Closing Date) and (y) any Immaterial Domestic Subsidiary that ceases to be an Immaterial Domestic Subsidiary, then the Borrowers shall, at the Borrowers expense:"
"(ii) within 30 days after such acquisition (or such longer period as may be agreed by the Administrative Agent in its sole discretion), (A) cause the applicable Loan Party to duly execute and deliver to the Administrative Agent Security Agreement Supplements, IP Security Agreement Supplements and other security and pledge agreements, as specified by and in form and substance satisfactory to the Administrative Agent, securing payment of all the Obligations of the applicable Loan Party under the Loan Documents and constituting Liens on all such personal properties and (B) cause the applicable Loan Party 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 Required Lenders to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid and subsisting Liens on such property, enforceable against all third parties,"
"6.13 Compliance with Environmental Laws. Comply, and cause all lessees and other Persons operating or occupying its properties to comply, in all material respects, with all applicable Environmental Laws and Environmental Permits; obtain and renew all Environmental Permits necessary for its operations and properties; and conduct any investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or other action necessary to remove and clean up all Hazardous Materials from any of its properties, in accordance with the requirements of all Environmental Laws in all material respects; provided, however, that neither Newpark nor any of its Subsidiaries shall be required to undertake any such cleanup, removal, remedial or other action to the extent that its obligation to do so is being contested in good faith and by proper proceedings and appropriate reserves are being maintained with respect to such circumstances in accordance with GAAP."
"6.17 Material Contracts. Perform and observe all the terms and provisions of each Material Contract to be performed or observed by it, maintain each such Material Contract in full force and effect, enforce each such Material Contract in accordance with its terms, take all such action to such end as may be from time to time requested by the Administrative Agent and, upon request of the Administrative Agent, make to each other party to each such Material Contract such demands and requests for information and reports or for action as Newpark or any of its Subsidiaries"
"(e) pledges or deposits in connection with workers compensation, unemployment insurance and other social security legislation and inchoate Liens in connection with workers compensation, unemployment insurance or other social security, old age pension or public liability obligations which are not delinquent or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP;"
"(q) Liens on any assets of any direct or indirect Foreign Subsidiary not otherwise permitted by this Section so long as neither (i) the aggregate outstanding principal amount of the obligations secured thereby nor (ii) the aggregate fair market value (determined as of the date such Lien is incurred) of the assets subject thereto exceeds (as to all Foreign Subsidiaries) $20,000,000 at any one time outstanding."
"(a) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person to hedge against (including cap, collar, or exchange) interest rates or foreign exchange rates, which are incurred in the ordinary course of business and not for speculative purposes and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;"
"common Equity Interests; (e) the redemption, repurchase or other acquisition or retirement for value of Equity Interests of any Borrower held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), either (i) upon any such individuals death, disability, retirement, severance or termination of employment or service or (ii) pursuant to any equity subscription agreement, stock option agreement, stockholders agreement or similar agreement; provided, in any case, that the aggregate cash consideration paid for all such redemptions, repurchases or other acquisitions or retirements shall not exceed $5,000,000 during any calendar year (with unused amounts in any calendar year being carried forward to the next succeeding calendar year); and (f) the payment of cash in lieu of fractional Equity Interests."
"7.11 Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge Coverage Ratio as of the end of any Measurement Period to be less than 1.00 to 1.00 while a Financial Covenant Trigger Period is in effect, commencing with the most recent Measurement Period for which financial statements were, or were required to be, delivered hereunder prior to the commencement of the Financial Covenant Trigger Period."
"7.16 Sanctions. Directly or indirectly, use any Credit Extension or the proceeds of any Credit Extension, or lend, contribute or otherwise make available such Credit Extension or the proceeds of any Credit Extension to any Person, to fund any activities of or business with any Person, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as Lender, Arranger, Administrative Agent, L/C Issuer, Swing Line Lender, or otherwise) of Sanctions or anti-corruption laws."
"Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuers (including fees, charges and disbursements of counsel to the respective Lenders and L/C Issuers arising under the Loan Documents and amounts payable under Article III, ratably among them in proportion to the respective amounts described in this clause Second payable to them;"
"Notwithstanding the foregoing, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements shall be excluded from the application described above if the Administrative Agent has not received a Secured Party Designation Notice, 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. Each Cash Management Bank or Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX hereof for itself and its Affiliates as if a Lender party hereto."
"9.01 Appointment and Authority. (a) Each of the Lenders and the L/C Issuers hereby irrevocably appoints, designates and authorizes Bank of America 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 or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuers, and the Borrowers shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term agent herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express)"
"9.07 Non-Reliance on Administrative Agent and Other Lenders. 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."
"9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Book Managers, Arrangers, Syndication Agent or Documentation Agent 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, a Lender or an L/C Issuer hereunder."
"(d) Change of Address, Etc. Each of Newpark, the Administrative Agent, each L/C Issuer and each Swing Line 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 Newpark, the Administrative Agent, the L/C Issuers and the Swing Line Lenders. 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 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 Borrowers or their securities for purposes of United States federal or state securities laws."
"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 Section 8.02 for the benefit of all the Lenders and all the L/C Issuers; 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 Issuers or the Swing Line Lenders from exercising the rights and remedies that inure to their respective benefit (solely in their respective capacities as an L/C Issuer or a 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 Section 10.08 (subject to the terms of Section 2.13), 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 Section 8.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.13, 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."
"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, waiver or other modification described in the first proviso to Section 10.01 (other than those in the proviso in Section 10.01(d)) that affects such Participant. The Borrowers agree that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 (subject to the requirements and limitations therein, including the requirements under Section 3.01(e) (it being understood that the documentation required under Section 3.01(e) shall be delivered to the Lender who sells the participation)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 3.06 and 10.13 as if it were an assignee under paragraph (b) of this Section and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the applicable participation 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 Newparks request and expense, to use reasonable efforts to cooperate with Newpark to effectuate the provisions of Section 3.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non- fiduciary agent of Newpark, 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 Section 5f.1031(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."
"10.11 Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding."
"10.20 Acknowledgement and Consent to Bail-In of EEA Financial Institutions. 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 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:"
"WHEREAS, the Borrowers, the Parent, the Lenders party thereto, and the Agent, among others, have entered into a Credit Agreement dated as of October18, 2010, as amended by that certain First Amendment to Credit Agreement made as of October31, 2011, and as further amended by that certain Second Amendment to Credit Agreement made as of December19, 2013 (as so amended and in effect, the Credit Agreement);"
"(b) From and after the Adjustment Date and on each Adjustment Date thereafter, the Applicable Margin shall be determined from the following pricing grid based upon the Average Daily Availability; provided however, that notwithstanding anything to the contrary set forth herein, upon the occurrence and during the continuance of an Event of Default, interest shall accrue at the Default Rate as and to the extent set forth in Section2.08 hereof; provided further if any Borrowing Base Certificates are at any time restated or otherwise revised because the information set forth therein proves to be false or incorrect such that the Applicable Margin would have been higher than was otherwise in effect during the period covered thereby, without constituting a waiver of any Default or Event of Default arising as a result thereof, interest due under this Agreement shall be immediately recalculated at such higher rate for any applicable periods and shall be due and payable on demand."
"w. | The following new definitions are hereby added to the Credit Agreement in appropriate alphabetical order: ---|--- Anti-Corruption Laws means the Foreign Corrupt Practices Act of 1977, as amended, 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."
"Sanctioned Entity means (a)a country or a government of a country, (b)an agency of the government of a country, (c)an organization directly or indirectly controlled by a country or its government, or (d)a Person resident in or determined to be resident in a country, in each case of clauses (a)through (d)that is a target of Sanctions, including a target of any country sanctions program administered and enforced by OFAC."
"b. | Section2.02(b) of the Credit Agreement is hereby amended by deleting such section in its entirety and the following substituted in its stead: ---|--- (b) Each request for a Committed Borrowing consisting of a Base Rate Loan shall be made by electronic request of the Lead Borrower through Administrative Agents Commercial Electronic Office Portal or through such other electronic portal provided by Administrative Agent (the Portal), which must be received by the Administrative Agent not later than 2:00 p.m. on the requested date of any Borrowing of Base Rate Loans. The Borrowers hereby acknowledge and agree that any request made through the Portal shall be deemed made by a Responsible Officer of the Borrowers. Each request for a Committed Borrowing consisting of a LIBO Rate Loan shall be made pursuant to the Lead Borrowers submission of a LIBO Rate Loan Notice, which must be received by the Administrative Agent not later than 11:00 a.m. three (3)Business Days prior to the requested date of any Borrowing or continuation of LIBO Rate Loans. Each LIBO Rate Loan Notice shall specify (i)the requested date of the Borrowing or continuation, as the case may be (which shall be a Business Day), (ii)the principal amount of LIBO Rate Loans to be borrowed or continued (which shall be in a principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof), and (iii)the duration of the Interest Period with respect thereto. If the Lead Borrower fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. On the requested date of any LIBO Rate Loan, (i)in the event that Base Rate Loans are outstanding in an amount equal to or greater than the requested LIBO Rate Loan, all or a portion of such Base Rate Loans shall be automatically converted to a LIBO Rate Loan in the amount requested by the Lead Borrower, and (ii)if Base Rate Loans are not outstanding in an amount at least equal to the requested LIBO Rate Loan, the Lead Borrower shall make an electronic request via the Portal for additional Base Rate Loans in such an amount that, when taken together with the outstanding Base Rate Loans (which shall be converted automatically at such time), shall satisfy the requested LIBO Rate Loan. If the Lead Borrower fails to make such additional request via the Portal as required pursuant to clause (ii)of the foregoing sentence, then the Borrowers shall be responsible for all amounts due pursuant to Section3.05 hereof arising on account of such failure. If the Lead Borrower fails to give a timely notice with respect to any continuation of a LIBO Rate Loan, then the applicable Committed Loans shall be converted to Base Rate Loans, effective as of the last day of the Interest Period then in effect with respect to the applicable LIBO Rate Loans."
" | a. | Section6.01(c) is hereby amended by deleting as soon as available, but in any event within 30 days after the end of each of the Fiscal Months of each fiscal year of the Parent in the first line therein and by substituting the following in its stead: ---|---|--- upon the occurrence and during the continuance of a Monthly Reporting Event, as soon as available, but in any event within 30 days after the end of each of the Fiscal Months of each fiscal year of the Parent (commencing with the first Fiscal Month immediately following the occurrence of such Monthly Reporting Event)"
" | a. | Exhibits to the Credit Agreement. The following Exhibits to the Credit Agreement are hereby amended, restated and replaced by the corresponding forms of Exhibits attached as Exhibit A hereto: Exhibit A (Form of LIBO Rate Loan Notice), Exhibit D (Form of Compliance Certificate), and Exhibit F (Form of Borrowing Base Certificate). ---|---|--- "
" | b. | Supplemental Schedules. Within forty-five (45)days following the Third Amendment Effective Date (which time period may be extended by the Agent in its sole discretion), the Loan Parties shall provide supplemental schedules to the Agent, to the extent that any changes in any representations, warranties, and covenants require any amendments or supplements to the schedules to the Credit Agreement, the Security Agreement, or any of the other Loan Documents. ---|---|--- "
"Reference is made to the Credit Agreement dated as of October18, 2010 (as amended, modified, supplemented or restated hereafter, the  Credit Agreement) by and among (i)Big 5 Corp., a Delaware corporation, for itself and as Lead Borrower (in such capacity, the  Lead Borrower) for the other Borrowers party thereto from time to time (individually, a Borrower and, collectively, the Borrowers), (ii)the Borrowers party thereto from time to time, (iii)Big 5 Sporting Goods Corporation, a Delaware corporation, as Guarantor (the Parent), (iv)Wells Fargo Bank, National Association, as administrative agent (in such capacity, the Administrative Agent) for its own benefit and the benefit of the other Credit Parties referred to therein, (v)Wells Fargo Bank, National Association, as collateral agent (in such capacity, the Collateral Agent) for its own benefit and the benefit of the other Credit Parties, (vi)Wells Fargo Bank, National Association, as L/C Issuer, and (vii)the lenders from time to time party thereto (individually, a Lender and, collectively, the Lenders). All capitalized terms used herein and not otherwise defined shall have the same meaning herein as in the Credit Agreement."
"1 | A Borrowing must have the same Interest Period. ---|--- 2 | Each notice of a Borrowing must be received by the Administrative Agent not later than 11:00 a.m. three (3)Business Days prior to the requested date of any Borrowing of or continuation of LIBO Rate Loans. ---|--- 3 | Each Borrowing or continuation of LIBO Rate Loans must be in a principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof. ---|--- Exhibit A to Third Amendment to Credit Agreement"
"6. | Set forth on Appendix VI hereto is a list of any transaction undertaken by the Loan Parties during the month/quarter/year ended [] involving (i)the entry by a Loan Party into a Material Contract, (ii)the incurrence by a Loan Party of Material Indebtedness, or (iii)the making of any Acquisition by a Loan Party. ---|--- "
"|  |  | | | |  | (b) |  | principal payments made or required to be made on account of Indebtedness (excluding the Obligations and any Synthetic Lease Obligations but including, without limitation, Capital Lease Obligations) for such Measurement Period: |  |  | | | |  | (c) |  | Debt Service Charges [The sum of Lines 4(a) and 4(b)]: |  |  | | | |  | Plus |  | |  | | | 5. |  | The aggregate amount of all Restricted Payments made during such Measurement Period: |  |  | | 6. |  | The sum of Line 4(c) and Line 5: |  | | | 7. |  | CONSOLIDATED FIXED CHARGE COVERAGE RATIO AS OF THE END OF THE MONTH ENDED ______________, CALCULATED ON A TRAILING TWELVE MONTHS BASIS [Line 3 divided by Line 6]: |  |  B. Consolidated Fixed Charge Coverage Ratio Covenant: During the continuance of a Covenant Compliance Event, the Borrowers will not permit the Consolidated Fixed Charge Coverage Ratio, calculated as of the last day of each month on a trailing twelve month basis, to be less than 1.0:1.0."
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"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."
"Appropriate Lender means, at any time, (a)with respect to any of the Term Facility or the Revolving Credit Facility, a Lender that has a Commitment with respect to such Facility or holds a Term Loan or a Revolving Credit Loan, respectively, at such time and (b)with respect to the Letter of Credit Sublimit, (i)each L/C Issuer and (ii)if any Letters of Credit have been issued pursuant to Section2.03(a), the Revolving Credit Lenders."
"AUD Rate means, for any Interest Period, (a)the rate per annum displayed at or about 10:45 a.m.(Sydney, Australia time) on the Reuters screen pageBBSY or BBSW (or its successor or equivalent page) on the first day of such Interest Period as the bank bill settlement bid rate for bank accepted bills for a term equivalent to such Interest Period, or (b)if (i)for any reason such rate is not available or (ii)the basis on which such rate is displayed has changed and, in the reasonable opinion of the Administrative Agent, ceases to reflect the Lenders cost of funding to the same extent as on the Closing Date, then the AUD Rate shall be a rate published by a commercially available source providing BBSY or BBSW quotations, as applicable, and reasonably selected by the Administrative Agent."
"Cash Collateralize means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent, each applicable L/C Issuer or the Revolving Credit Lenders, as collateral or other credit support for L/C Obligations or obligations of Revolving Credit Lenders to fund participations in respect of either thereof (as the context may require), (a)cash or deposit account balances or, (b)if the applicable L/C Issuer benefitting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and the applicable L/C Issuer. Cash Collateral shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support."
"(b) overnight bank deposits, time deposit accounts, certificates of deposit, bankers acceptances and money market deposits with maturities (and similar instruments) of 12 months or less from the date of acquisition issued by a bank or trust company which is organized under, or authorized to operate as a bank or trust company under, the laws of a member state of the Pre-Expansion European Union or of the United States or any state thereof, Switzerland or Canada; provided that such bank or trust company has capital, surplus and undivided profits aggregating in excess of $250,000,000 (or the foreign currency equivalent thereof as of the date of such investment) and whose long- term debt is rated A-1 or higher by Moodys or A+ or higher by S&P or the equivalent rating category of another internationally recognized rating agency;"
"CDOR means, for any Interest Period, the Canadian deposit offered rate equal to the sum of the annual rate of interest determined with reference to the arithmetic mean of the discount rate quotations of all institutions listed in respect of such Interest Period for Canadian Dollar-denominated bankers acceptances displayed and identified as such on the Reuters Screen CDOR Page or a comparable or successor rate, which rate is approved by the Administrative Agent, as published by Reuters (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) as of 10:00 a.m.Toronto local time on such day and, if such day is not a Business Day, then on the immediately preceding Business Day (as adjusted by the Administrative Agent after 10:00 a.m.Toronto local time to reflect any error in the posted rate of interest or in the posted average annual rate of interest)."
"Closing Material Adverse Effect means any change, event, occurrence, development, effect, condition, circumstance or matter that, individually or in the aggregate, has or would reasonably be likely to have a material adverse effect on the assets, liabilities, business, financial condition or results of operation of the Sold Companies and the Business, taken as a whole; provided, however, that none of the following shall be considered or taken into account in determining whether there has been or would reasonably be likely to be a Material Adverse Effect: any change, event, occurrence, development, effect, condition, circumstance or matter resulting from or relating to (A)the pendency or public announcement of the Carve-out and the Transaction, including the impact thereof on relationships, contractual or otherwise, with customers, suppliers, distributors, partners, regulators or employees (including any employee departures or labor union or works council activities); (B)global or national or regional economic, monetary or financial conditions, including changes or developments in credit markets (including changes in prevailing interest or exchange rates), financial or securities markets (including the disruption thereof and any decline in the price of any security or market index), or general economic, business or regulatory conditions anywhere in the world, or (C)national or international or regional political or social conditions; (D)the commencement, continuation or escalation of a war, armed hostilities or other international or national emergency, calamity or act"
"Consolidated Cash Taxes means, as of any date for the applicable period ending on such date with respect to the Borrower and its Restricted Subsidiaries on a consolidated basis, the aggregate of all income, franchise and similar taxes, as determined in accordance with GAAP (subject to Section1.03(c)), to the extent the same are payable in cash with respect to such period."
"Consolidated EBITDA means, as of any date for the applicable period ending on such date with respect to any Person and its Restricted Subsidiaries on a consolidated basis, the sum of (a)Consolidated Net Income, plus (b)an amount which, in the determination of Consolidated Net Income for such period, has been deducted for (other than clause (xix), without duplication,"
"(vii) costs and expenses in connection with project ramp-ups, provided that the aggregate amount of add backs made pursuant to this clause (vii), when added to the aggregate amount of add backs pursuant to clauses (ix)and (xix)below, shall not exceed an amount equal to 20% of Consolidated EBITDA for the period of four consecutive fiscal quarters most recently ended prior to the determination date (without giving effect to any adjustments pursuant to this clause (vii)or clauses (ix)or (xix)below),"
"(xii) any (x)expenses, charges or losses that are covered by indemnification or other reimbursement provisions in connection with any permitted Investment, Permitted Acquisitions or any permitted sale, conveyance, transfer or other disposition of assets or (y)expenses, charges or losses with respect to liability or casualty events or business interruption covered by insurance, in each case to the extent actually reimbursed, or, so long as the Borrower has made a determination that reasonable evidence exists that such indemnification or reimbursement will be made, and only to the extent that such amount is (A)not denied by the applicable indemnifying party, obligor or insurer in writing and (B)in fact indemnified or reimbursed within 365 days after such determination (with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such 365 day period),"
"Consolidated Funded First Lien Indebtedness means Consolidated Funded Indebtedness that is secured by a Lien on any Collateral (other than Liens permitted under Section7.01(i)) that is not subordinated to the Liens securing the First Lien Obligations; provided that (x)such Consolidated First Lien Indebtedness is not subordinated in right of payment to the First Lien Obligations and (y)for purposes of the definition of Permitted Other First Lien Indebtedness, the definition of Permitted Other Second Lien Indebtedness and clause (x)(B)of the second proviso in Section2.14(a)only, all Incremental First Lien Facilities and all Permitted Other First Lien Indebtedness (and any Permitted Refinancing thereof) shall be deemed to be (a)secured by a Lien on the Collateral that is not subordinated to the Liens securing the First Lien Obligations, whether or not so secured and (b)not subordinated in right of payment to the First Lien Obligations, whether or not so subordinated."
"Consolidated Scheduled Funded Debt Payments means, as of any date for the applicable period ending on such date with respect to the Borrower and its Restricted Subsidiaries on a consolidated basis, the sum of all scheduled payments of principal during such period on Consolidated Funded Indebtedness that constitutes Funded Debt (including the implied principal component of payments due on Capitalized Leases during such period), less the reduction in such scheduled payments resulting from voluntary prepayments or mandatory prepayments of such Funded Debt (including as required pursuant to Section2.05) as determined in accordance with GAAP (subject to Section1.03(c))"
"Continuing Directors means the directors of each of Holdings and the Borrower on the Closing Date, and each other director, if, in each case, such other directors nomination for election to the Board of Directors of Holdings or the Borrower is recommended by a majority of the then Continuing Directors or such other director receives the vote of the Sponsor in his or her election by the stockholders of Holdings or of the Borrower."
"(c) in the event that Cumulative Credit has been reduced as a result of an Investment made pursuant to Section7.02(t)(any such Investment for purposes of this clause (c)being an Original Investment and the amount of any such reduction for purposes of this clause (c)being the Reduction Amount in respect of such Investment) in connection with the designation of a Restricted Subsidiary as an Unrestricted Subsidiary, the acquisition of Equity Interests of an Unrestricted Subsidiary or the acquisition of any Investments, an amount equal to the lesser of (A)the aggregate amount received by the Borrower or any Restricted Subsidiary in cash and Cash Equivalents from: (i)the sale (other than to the Borrower or any such Restricted Subsidiary) of any such Equity Interests of an Unrestricted Subsidiary or any such Investments, or (ii)any dividend or other distribution by any such Unrestricted Subsidiary received in respect of any such Investments, or (iii)interest, returns of principal, repayments and similar payments by any such Unrestricted Subsidiary or received in respect of any such Investments, and (B)the Reduction Amount in respect of such Original Investment; plus"
"(e) the aggregate excess, if any, in respect of each fiscal year of the Borrower (commencing with the first full fiscal year ending after the Closing Date) completed prior to such date of (i)the cumulative amount of Cumulative Credit attributable to and determined in accordance with clause (a)of this definition for all four fiscal quarters of each such fiscal year over (ii)such cumulative amount for each such fiscal year attributable to clause (a)of this definition but determined on an annual (and not quarterly) basis for each such fiscal year (for the avoidance of doubt, based on the Total Leverage Ratio as of the last day of each such fiscal year),"
"Current Assets means, with respect to any Person, all assets of such Person that, in accordance with GAAP (subject to Section1.03(c)), would be classified as current assets on the balance sheet of a company conducting a business the same as or similar to that of such Person, after deducting appropriate and adequate reserves therefrom in each case in which a reserve is proper in accordance with GAAP (subject to Section1.03(c))."
"Environmental Laws means any and all Federal, state, local, and foreign statutes, laws (including common law), regulations, ordinances, rules, judgments, orders, decrees or binding judicial or administrative decisions relating to pollution and the protection of the environment (including air, water vapor, surface water, ground water, drinking water, drinking water supply, surface or subsurface land, plant and animal life or any other natural resource), and public and worker health and safety, including those related to the generation, use, handling, storage, transportation, treatment, recycling, labeling or Environmental Release of, or exposure to, any Hazardous Materials."
"ERISA Affiliate means any trade or business (whether or not incorporated), that together with any Loan Party, is treated as a single employer within the meaning of Section414(b)or (c)of the Code (and Sections 414(m)and (o)of the Code for purposes of provisions relating to Section302 of ERISA or Section412 of the Code)."
"(v) cash payments made in satisfaction of non-current liabilities (excluding payments of Indebtedness for borrowed money) or non-cash charges in a prior period, in each case, not made directly or indirectly using (1)proceeds, payments or any other amounts available from events or circumstances that were not included in determining Consolidated Net Income during such period or (2)the Cumulative Credit,"
"branch profits Taxes imposed by the United States of America or any similar Tax imposed by any other jurisdiction described in clause (a)above, (c)in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section3.07), any United States federal withholding Tax that is imposed on amounts payable to such Foreign Lender pursuant to a law in effect at the time such Foreign Lender becomes a party to this Agreement (or designates a new Lending Office), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts with respect to such withholding Tax pursuant to Section3.01(a), (d)Taxes attributable to such recipients failure to comply with Section3.01(g)or Section3.01(h)and (e)any United States federal withholding Taxes imposed under FATCA."
"FATCA means Sections 1471 through 1474 of the Code, as of the Closing Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section1471(b)(1)of the Code."
"Guarantors means, collectively, (i)Holdings, (ii)each wholly-owned Domestic Subsidiary of the Borrower that is a Restricted Subsidiary and listed on Schedule I, and (iii)each other wholly-owned Domestic Subsidiary of the Borrower that is a Restricted Subsidiary that shall be required to execute and deliver a Guaranty or Guaranty supplement pursuant to Section6.12."
"Hedge Bank means (i)any Person that at the time it enters into a Secured Hedge Agreement, is an Agent, an Arranger or a Lender or an Affiliate of an Agent, an Arranger or a Lender or (ii)any Person that is, as of the Closing Date, an Agent, an Arranger or a Lender or an Affiliate of an Agent, an Arranger or a Lender and a party to a Secured Hedge Agreement, in each case, in its capacity as a party to such Secured Hedge Agreement. For the avoidance of doubt, such Person shall continue to be a Hedge Bank with respect to the applicable Secured Hedge Agreement even if it ceases to be an Agent, an Arranger or a Lender or an Affiliate of an Agent, an Arranger or a Lender after the date on which it entered into such Secured Hedge Agreement."
"(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements and mortgage, industrial revenue bond, industrial development bond and similar financings), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;"
"under the Facility under which such Loan was made; provided, however, that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b)as to any Base Rate Loan, the last Business Day of each March, June, Septemberand Decemberand the Maturity Date of the Classof Loans under the Facility under which such Loan was made."
"L/C Issuer means the Administrative Agent, each other Initial Lender (for the avoidance of doubt, other than any Initial Lender that is an affiliate of the Administrative Agent) and each other Lender reasonably acceptable to the Borrower and the Administrative Agent that agrees to issue Letters of Credit pursuant hereto, in each case in its capacity as an issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder. Each L/C Issuer may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the 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."
"Equivalents (i)received upon the Disposition of any non-cash consideration received by the Borrower or any Restricted Subsidiary in any such Disposition and (ii)upon the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in clause (D)of the preceding sentence or, if such liabilities have not been satisfied in cash and such reserve not reversed within three hundred and sixty-five (365) days after such Disposition or Casualty Event, the amount of such reserve;"
"Other Taxes means any and all present or future stamp, court or documentary, intangible, recording or filing Taxes or any other similar Taxes, charges or levies arising from any payment made under any Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document."
"Required Lenders means, as of any date of determination, Lenders holding more than 50% of the sum of the (a)Total Outstandings (with the aggregate amount of each Lenders risk participation and funded participation in L/C Obligations, as applicable, being deemed held by such Lender for purposes of this definition), (b)aggregate unused Term Commitments and (c)aggregate unused Revolving Credit Commitments; provided that the unused Term Commitments of, unused Revolving Credit Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders."
"Required Revolving Lenders means, as of any date of determination, Revolving Credit Lenders holding more than 50% of the sum of the (a)Total Revolving Credit Outstandings (with the aggregate amount of each Revolving Credit Lenders risk participation and funded participation in L/C Obligations, as applicable, being deemed held by such Revolving Credit Lender for purposes of this definition) and (b)aggregate unused Revolving Credit Commitments; provided that the unused Revolving Credit Commitment of, and the portion of the Total Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders."
"Restricted Payment means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of any Person, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to such Persons stockholders, partners or members (or the equivalent Persons thereof)."
"Revolving Credit Note means a promissory note of the Borrower payable to any Revolving Credit Lender or its registered assigns, in substantially the form of ExhibitC-2 hereto, evidencing the aggregate indebtedness of the Borrower to such Revolving Credit Lender resulting from the Revolving Credit Loans made by such Revolving Credit Lender."
"Second Lien Cap means (a)the sum of (x)$175,000,000 plus (y)such additional amount that would not, after giving effect on a Pro Forma Basis to the incurrence thereof cause the Secured Leverage Ratio (without netting the cash and Cash Equivalents constituting proceeds of the applicable Second Lien Obligations) as at the end of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered to the Second Lien Administrative Agent to exceed 4.40:1.00, minus (b)the sum of (i)all Permitted Other Second Lien Indebtedness incurred in reliance on clause (x)of the definition thereof, (ii)all Incremental Cash Management LC Obligations, (iii)all Incremental First Lien Commitments incurred and outstanding in reliance on Section2.14(a)(x)of this Agreement (assuming the full funding thereof) and (iv)all Permitted Other First Lien Indebtedness (assuming the full funding thereof) incurred in reliance on clause (x)of the definition thereof."
"Target means, collectively, (i)Siemens Water Technologies Pty Ltd (ACN 165 060 168), incorporated in Victoria, Australia with its registered office at 885 Mountain Hwy, Baywater Victoria, 3153 Australia, (ii)Siemens Water Technologies Ltd., a corporation organized under the federal laws of Canada, with its registered office at Oakville, Ontario, Canada, (iii)Siemens Water Technologies GmbH, Auf der Weide 10, 89312 Gnzburg, a German limited liability company (Gesellschaft mit beschrnkter Haftung) registered with the commercial register of the lower court (Amtsgericht) of Memmingen under HRB 15470, Federal Republic of Germany, (iv)Siemens Water Technologies S.r.l. with its registered seat in Casteggio (PV),Italy and its business address at Via Torino no. 114, registered with the commercial register of Pavia under no. 02515520183, (v)WT Membrane Systems Pty Ltd (ACN 166 784 694), incorporated in Victoria, Australia with its registered office at 885 Mountain Hwy, Baywater Victoria, 3153 Australia, (vi)Siemens Treated Water Outsourcing Corp., a Delaware corporation, (vii)Siemens Water Technologies Pte Ltd (Co. Reg. No.201323301N), a private limited company organized under the laws of Singapore with its registered office in 60 MacPherson Road Singapore 348615, (viii)Siemens Water Technologies Limited, a company registered in England and Wales with registered number 8608208 with its registered office at Faraday House, Sir William Siemens Square, Frimley, Camberley, Surrey, GU16 8QD, England and (ix)Siemens Water Technologies LLC, a Delaware limited liability company."
"(c) Substantially all existing Indebtedness for borrowed money of the Target and its subsidiaries, other than intercompany indebtedness and existing capital leases, other Indebtedness permitted to exist beyond the Closing Date under the Acquisition Agreement and certain limited indebtedness that the Arrangers and Holdings reasonably agree may remain outstanding after the Closing Date (collectively, the Permitted Surviving Debt), will be refinanced, terminated or discharged and satisfied and all liens securing any such"
"Unrestricted Subsidiary means (1)any Subsidiary of the Borrower designated by the Borrower as an Unrestricted Subsidiary hereunder by written notice to the Administrative Agent and the Collateral Agent; provided that the Borrower shall only be permitted to so designate a Subsidiary as an Unrestricted Subsidiary after the Closing Date and so long as (a)no Default or Event of Default has occurred and is continuing or would result therefrom, (b)such Unrestricted Subsidiary shall be capitalized (to the extent capitalized by the Borrower or any of its Restricted Subsidiaries) through Investments as permitted by, and in compliance with, Section7.02 and the designation of such Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the Borrower therein at the date of designation in an amount equal to the fair market value as determined by the Borrower in good faith of the Borrowers (as applicable) Investment therein, (c)without duplication of clause (b), any assets owned by such Unrestricted Subsidiary at the time of the initial designation thereof shall be treated as Investments pursuant to Section7.02, (d)such Subsidiary shall have been or will promptly be designated an unrestricted subsidiary (or otherwise not be subject to the covenants) under the Second Lien Credit Agreement and any then outstanding Specified Second Lien Refinancing Debt, (e)no"
"(b) The Administrative Agent or an L/C Issuer, as applicable, shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts denominated in Euros, Sterling or any Alternative Currency. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur. Except for purposes of financial statements delivered by Loan Parties hereunder or calculating financial ratios hereunder or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar equivalent amount as so determined by the Administrative Agent or the applicable L/C Issuer, as applicable (on the basis of the Spot Rate as of the applicable Revaluation Date). Wherever in this Agreement in connection with a Borrowing, conversion, continuation or payment of a Eurocurrency Rate Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Borrowing, Eurocurrency Rate Loan or Letter of Credit is denominated in Euros, Sterling or an Alternative Currency, such amount shall be the relevant Currency Equivalent of such Dollar amount (rounded to the nearest unit of Euros, Sterling or such Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the Administrative Agent or the applicable L/C Issuer, as the case may be."
"(e) Any failure by a Revolving Credit Lender or the applicable L/C Issuer, as the case may be, to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such Revolving Credit Lender or such L/C Issuer, as the case may be, to permit Eurocurrency Rate Revolving Credit Loans to be made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the Revolving Credit Lenders consent to making Eurocurrency Rate Revolving Credit Loans in"
"1.10 Pro Forma Calculations. Notwithstanding anything to the contrary herein, the First Lien Leverage Ratio, the Secured Leverage Ratio and the Total Leverage Ratio shall be calculated (including, but not limited to, for purposes of Section2.14) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the Total Leverage Ratio and the First Lien Leverage Ratio, as applicable, for purposes of (a)determining the applicable percentage of Excess Cash Flow set forth in Section2.05, (b)determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the maximum First Lien Leverage Ratio pursuant to Section7.11 and (c)determining the Applicable Rate, the events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect."
"1.11 Basket Calculations. If any of the baskets set forth in ArticleVII of this Agreement are exceeded solely as a result of either (x)fluctuations to Consolidated Total Assets for the most recently completed fiscal quarter after the last time such baskets were calculated for any purpose under ArticleVII or (y)fluctuations in applicable currency exchange rates after the last time such baskets were calculated for any purpose under ArticleVII, such baskets will not be"
"(i) In the case of a Borrowing of Term Loans or Incremental First Lien Term Loans, each Appropriate Lender shall make the amount of its Term Loan or Incremental First Lien Term Loan available to the Administrative Agent in immediately available funds at the Administrative Agents Office not later than 12:00 noon (New York Time) on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section4.02 (and, if such Borrowing is the initial Credit Extension, Section4.01), the Administrative Agent shall make all"
"(ii) Promptly after receipt of any Letter of Credit Application, the applicable L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, such L/C Issuer will provide the Administrative Agent with a copy thereof. Upon receipt by such L/C Issuer of confirmation from the Administrative Agent that the requested L/C Credit Extension is permitted in accordance with the terms hereof (including the satisfaction of the conditions precedent set forth in Section4.02), then, subject to the terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower or enter into the applicable"
"(vi) If any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the applicable L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section2.03(c)by the time specified in Section2.03(c)(ii), then, without limiting the other provisions of this Agreement, such 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 such L/C Issuer at a rate per annum equal to the greater of the Federal Funds"
"Rate from time to time in effect and a rate reasonably determined by such L/C Issuer in accordance with banking industry ruleson interbank compensation, plus any reasonable administrative, processing or similar fees customarily charged by such 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 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 applicable L/C Issuer submitted to any Revolving Credit Lender (through the Administrative Agent) with respect to any amounts owing under this Section2.03(c)(vi)shall be conclusive absent manifest error."
"(iv) any payment by the applicable L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not comply with the terms of such Letter of Credit; or any payment made by the applicable L/C 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;"
"(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the applicable L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the applicable L/C Issuer, any Agent-Related Person nor any of the respective correspondents, participants or assignees of the applicable L/C Issuer shall be liable to any Lender for (i)any action taken or omitted in connection herewith at the request or with the approval of the Revolving Credit Lenders or the Required Revolving Lenders, as applicable; (ii)any action taken or omitted in the absence of gross negligence or willful misconduct of such Person as determined by a court of competent jurisdiction in a final,"
"receipt by the Administrative Agent, the Lenders and the Borrower of notice of resignation from an L/C Issuer, such L/C Issuer shall not be required, and shall be discharged from its obligations, to issue additional Letters of Credit or extend or increase the amount of Letters of Credit then outstanding, without affecting its rights and obligations with respect to Letters of Credit previously issued by it, and (ii)the provisions of ArticleIX and Sections 10.04 and 10.05 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was an L/C Issuer under this Agreement. The Administrative Agent shall notify the Revolving Credit Lenders of any such replacement of an L/C Issuer or any such additional L/C Issuer."
"respective portions thereof) offered by the Lenders (Qualifying Lenders) that specify an Acceptable Discount that is equal to or greater than the Applicable Discount (Qualifying Loans) at the Applicable Discount, provided that if the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time) would exceed the amount of aggregate proceeds required to prepay the Proposed Discounted Prepayment Amount, such amounts in each case calculated by applying the Applicable Discount, such Borrower Purchasing Party shall prepay such Qualifying Loans ratably among the Qualifying Lenders based on their respective principal amounts of such Qualifying Loans (subject to rounding requirements specified by the Administrative Agent). If the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time) would be less than the amount of aggregate proceeds required to prepay the Proposed Discounted Prepayment Amount, in each case calculated by applying the Applicable Discount, such Borrower Purchasing Party shall prepay all Qualifying Loans."
"(i) Within five (5)Business Days after financial statements have been delivered pursuant to Section6.01(a)and the related Compliance Certificate has been delivered pursuant to Section6.02(a), but in any event not later than one hundred and twenty-five (125) days after the end of each fiscal year of the Borrower beginning with the first full fiscal year ended after the Closing Date, the Borrower shall prepay an aggregate principal amount of Term Loans in an amount equal to (A)50% (as may be adjusted pursuant to the proviso below) of Excess Cash Flow for the fiscal year covered by such financial statements commencing with the first full fiscal year ended after the Closing Date minus (B)the aggregate amount of voluntary principal prepayments of the Loans pursuant to Section2.05(a)(i)(except prepayments of Revolving Credit Loans unless accompanied by a corresponding permanent commitment reduction of the Revolving Credit Facility) and of the Second Lien Loans pursuant to Section2.05(a)(i)of the Second Lien Credit Agreement minus (C)the aggregate discounted amount actually paid in cash by the Borrower Purchasing Parties in connection with all Discounted Voluntary Prepayments pursuant to Section2.05(a)(iii)and all Discounted Voluntary Prepayments (as defined in the Second Lien Credit Agreement) of the Second Lien Loans pursuant to Section2.05(a)(iii)of the Second Lien Credit Agreement (in the case of clauses (B)and (C), to the extent financed with internally generated funds); provided that such percentage shall be reduced to 25% or 0% if the Total Leverage Ratio as of the last day of the prior fiscal year was less than 3.90:1.00 or 3.40:1.00, respectively."
"(B) With respect to any Net Cash Proceeds realized or received with respect to any Disposition (other than as specifically excluded in Section2.05(b)(ii)(A)) or any Casualty Event, at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower or the applicable Restricted Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets useful for its business within three hundred and sixty-five (365) days following receipt of such Net Cash Proceeds (or, if Holdings, the Borrower or the relevant Restricted Subsidiary, as applicable, has contractually committed within 365 days following receipt of such Net Cash Proceeds to reinvest such Net Cash Proceeds, 545 days following receipt of such Net Cash Proceeds); provided, however, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election, an amount equal to any such Net Cash Proceeds shall be immediately applied to the prepayment of the Loans as set forth in this Section2.05."
"(iv) Within three (3)Business Days after the entering into a Secured Cash Management Agreement that replaces a Trade L/C or Trade L/C Collateralization, the Borrower shall (A)reduce the Trade Facility Collateral Term Loan Amount and (B)prepay an aggregate principal amount of Term Loans, in each case in an amount equal to 100% of the aggregate principal amount of such Secured Cash Management Agreement, until such time as the Trade Facility Collateral Term Loan Amount is reduced to zero; it being acknowledged and agreed that the Borrower shall not be required to prepay the"
"(ii) The Letter of Credit Sublimit and the Alternative Currency Sublimit with respect to each Alternative Currency shall automatically be reduced proportionately to any reduction or termination of unused Revolving Credit Commitments under this Section2.06, unless otherwise requested by the Borrower and consented to by (A)in the case of the Letter of Credit Sublimit, the Administrative Agent and each L/C Issuer or (B)in the case of the Alternative Currency Sublimit, the Administrative Agent, each L/C Issuer and the Required Revolving Lenders."
"(a) Term Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the Term Lenders the aggregate principal amount of all Term Loans outstanding in consecutive quarterly installments as follows (which installments shall, to the extent applicable, be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Sections 2.05 and 2.06, or be increased as a result of any increase in the amount of Term Loans pursuant to Section2.14 (such increased amortization payments to be calculated in the same manner (and on the same basis) as the schedule set forth below for the Term Loans made as of the Closing Date), with each such installment due and payable on each date set forth below (or, if such day is not a Business Day, on the immediately preceding Business Day):"
"the Borrower hereunder shall be made to the Administrative Agent, in each case, 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 (A)with respect to the Term Facility, any Incremental First Lien Term Commitments and any Incremental First Lien Term Loans, 2:00 p.m.(New York Time) or (B)with respect to the Revolving Credit Facility, (x)for any Revolving Credit Loans denominated in Dollars, 2:00 p.m.(New York Time) and (y)for any Revolving Credit Loans denominated in Euros, Sterling or any Alternative Currency, 8:00 a.m.(New York Time), in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share in respect of the relevant Facility (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 (i)with respect to the Term Facility, any Incremental First Lien Term Commitments and any Incremental First Lien Term Loans, the Administrative Agent after 2:00 p.m.(New York Time) or (ii)(x)for any Revolving Credit Loans denominated in Dollars, 2:00 p.m.(New York Time) or (y)for any Revolving Credit Loans denominated in Euros, Sterling or any Alternative Currency, 8:00 a.m.(New York Time) shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the 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; provided, however, that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day."
"(f) Insufficient Funds. If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i)first, toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii)second, toward payment of principal and L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and L/C Borrowings then due to such parties."
(ii) shall share ratably (and may not share more than ratably) in any prepayments of the Term Facility (unless the Incremental First Lien Lenders with respect to such Incremental First Lien Term Loans agree to receive prepayments after the prepayments of the Term Facility or any other Incremental First Lien Term Loans);
"(iii) except as set forth in subsection (a)above and this subsection (b)with respect to prepayment events, maturity date, interest rate, yield, fees and original issue discounts and except with respect to the amortization schedule for the Incremental First Lien Term Loans and the permitted use of proceeds thereof, shall have terms substantially the same terms as (and in any event no more favorable than) the outstanding Term Loans (and to the extent materially differing from the terms of the outstanding Term Loans, shall be reasonably satisfactory to the Administrative Agent); provided that if the initial yield (as determined by the Administrative Agent as set forth below) on any Incremental First Lien Term Loan Tranche incurred on or prior to the date that is 18 months following the Closing Date exceeds by more than 50 basis points (the amount of such excess above 50 basis points being herein referred to as the Yield Differential) the yield then in effect for outstanding Term Loans (such yield, in the case of each of such Incremental First Lien Term Loan Tranche and the Term Loans, for purposes of this proviso being deemed to include all upfront or similar fees or original issue discount paid by the Borrower generally to the Lenders who provide such Incremental First Lien Term Loan Tranche or to the Lenders who provided the outstanding Term Loans in the primary syndication thereof based on an assumed four-year life to maturity), then the Applicable"
"(e) If any Incremental First Lien Commitments are added in accordance with this Section 2.14, the Administrative Agent and the Borrower shall determine the effective date (the Incremental First Lien Commitments Effective Date) and the final allocation of such addition. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such addition and the Incremental First Lien Commitments Effective Date."
"(f) The effectiveness of any Incremental First Lien Commitments Amendment shall, unless otherwise agreed to by the Administrative Agent, each Lender party thereto, if any, and the Incremental First Lien Lenders, if any, with respect to the conditions set forth in clauses (ii)(A) and (ii)(C) below as set forth in the last paragraph of this clause (f), be subject to the satisfaction on the date thereof of each of the following conditions:"
"If the proceeds of any Incremental First Lien Facility will be used to consummate a Permitted Acquisition and the terms of the definitive acquisition agreement (the Subject Acquisition Agreement) in respect thereof so require, (x) the condition that, at the time of any request for Incremental First Lien Commitments and upon the effectiveness of any Incremental First Lien Commitments Amendment and at the time that any such Incremental Loan is made (and after giving effect thereto), no Default or Event of Default shall exist, shall be limited to no Event of Default under Section 8.01(a), 8.01(f) or 8.01(g) shall exist and (y) the condition that the representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) at the time that any such Incremental Loan is made (and after giving effect thereto), shall be limited to the accuracy of the representations and warranties that would constitute Specified Representations and the equivalent representations in the Subject Acquisition Agreement."
"Lenders pro rata in accordance with the Commitments under the applicable Facility without giving effect to Section 2.16(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 2.16(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto;"
"(c) The Loan Parties shall, jointly and severally, indemnify each Agent and Lender, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes paid or payable by such Agent or Lender, as the case may be, on or with respect to any payment by or on account of any obligation of the Borrower or any other Loan Party hereunder or under any other Loan Document and any Other Taxes paid or payable by such Agent or Lender (including Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) 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. A certificate setting forth in reasonable detail the basis and the calculation of the amount of such liability delivered to the Borrower by a Lender or Agent, or by the Administrative Agent on behalf of itself or a Lender or Agent, shall be conclusive absent manifest error."
"(f) Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 3.01(a) or (c) with respect to such Lender it will, if requested by the Borrower, use commercially reasonable efforts (subject to such Lenders overall internal policies of general application and legal and regulatory restrictions) to avoid or reduce to the greatest extent possible any indemnification or additional amounts due under this Section 3.01, which may include the designation of another Lending Office for any Loan or Letter of Credit affected by such event; provided, that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.01(f) shall affect or postpone any of the First Lien Obligations of the Borrower or the rights of such Lender pursuant to Sections 3.01(a) and (c)."
"In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower 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 3.01(g)(ii) below) shall not be required if in the 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."
"(b) With respect to any Lenders claim for compensation under Section 3.02, 3.03 or 3.04, the Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Borrower of the event that gives rise to such claim; provided, that, if the circumstance giving rise to such increased cost or reduction is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. If any Lender requests compensation by the Borrower under Section 3.04, the Borrower may, by notice to such Lender (with a copy to the Administrative Agent), suspend the obligation of such Lender to make or continue from one Interest Period to another Eurocurrency Rate Loans, or to convert Base Rate Loans into Eurocurrency Rate Loans, until the event or condition giving rise to such request ceases to be in effect (in which case the provisions of Section 3.06(c) shall be applicable); provided, that such suspension shall not affect the right of such Lender to receive the compensation so requested."
"conversion of such Lenders Eurocurrency Rate Loans pursuant to this Section 3.06 no longer exist (which such Lender agrees to do promptly upon such circumstances ceasing to exist) at a time when Eurocurrency Rate Loans made by other Lenders are outstanding, such Lenders Base Rate Loans shall be automatically converted, on the first day(s) of the next succeeding Interest Period(s) for such outstanding Eurocurrency Rate Loans, to the extent necessary so that, after giving effect thereto, all Loans held by the Lenders holding Eurocurrency Rate Loans and by such Lender are held pro rata (as to principal amounts, interest rate basis, and Interest Periods) in accordance with their respective Commitments."
"(c) Notwithstanding anything to the contrary contained above, (i) any Lender that acts as an L/C Issuer may not be replaced hereunder at any time that it has any Letter of Credit outstanding hereunder unless arrangements satisfactory to such L/C Issuer (including the furnishing of a back-up standby letter of credit in form and substance, and issued by an issuer reasonably satisfactory to such L/C Issuer or the depositing of cash collateral into a cash collateral account in amounts and pursuant to arrangements reasonably satisfactory to such L/C Issuer) have been made with respect to such outstanding Letter of Credit and (ii) the Lender that acts as the Administrative Agent may not be replaced hereunder except in accordance with the terms of Section 9.09."
"(x) (a) the as reported and as is financial results of the Target as held for sale for the twelve (12) months period ended September 30, 2013, consistent with the methodology employed in the reporting of such results as set forth in the Relevant CONSOL File Information for the period ended on June 30, 2013 and received by the Commitment Parties, and a quality of earnings report with respect to the Target for such period, consistent with the quality of earnings report with respect to the Target received by the Commitment Parties for the nine (9) months period ended June 30, 2013, and (b) pro forma financial information of the Target for the nine (9) months period ended June 30, 2013 and, if the Closing Date occurs after November 30, 2013, for the year ended September 30, 2013, in each case prepared (i) consistent with the Relevant CONSOL File Information referred to in the foregoing clause (a), (ii) after giving effect to the Transactions and (iii) with no reconciliation to IFRS or GAAP;"
"4.02 Conditions to All Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than on the Closing Date and other than a Committed Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of Eurocurrency Rate Loans) is subject to the following conditions precedent:"
"5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is a party, and the consummation of the Transactions, are within such Loan Partys corporate or other powers, have been duly authorized by all necessary corporate or other organizational action, except on the Closing Date as set forth in clause (y) of the last paragraph of Section 4.01, 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, or the creation of any Lien under (other than any Lien to secure the Secured Obligations pursuant to the Collateral Documents), or require any payment to be made under (i) the Second Lien Credit Agreement (or any Specified Second Lien Refinancing Debt), (ii) any other Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (iii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law; except with respect to any breach or contravention or payment referred to in clause (b)(ii) and (b)(iii), to the extent that such conflict, breach, contravention or payment could not reasonably be expected to have a Material Adverse Effect."
"Governmental Authority or any other Person is necessary or required in connection with (a)the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, or for the consummation of the Transactions, (b)the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c)the perfection or maintenance of the Liens created under the Collateral Documents (including the priority thereof) or (d)the exercise by an Agent, an L/C issuer, any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, 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 and those approvals, consents, exemptions, authorizations or other actions, notices or filings, the failure of which to obtain or make could not reasonably be expected to have a Material Adverse Effect."
"5.10 Taxes. Holdings and its Subsidiaries have filed all Federal and state and other tax returns and reports required to be filed, and have paid all Federal and state and other taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those (a)which are not overdue by more than thirty (30) days or (b)which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP (subject to Section1.03(c)) or (c)with respect to which the failure to make such filing or payment could not individually or in the aggregate reasonably be expected to have a Material Adverse Effect."
"5.12 Subsidiaries; Equity Interests. As of the Closing Date, each Loan Party has no Subsidiaries and is not engaged in any Joint Venture or partnership other than those specifically disclosed in Schedule 5.12, and all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and non-assessable and are owned by a Loan Party free and clear of all Liens except (i)those created under the Collateral Documents and (ii)any nonconsensual Lien that is permitted under Section7.01, Permitted Other Indebtedness Liens, Specified Refinancing Liens, Specified Second Lien Refinancing Liens or any Lien permitted under Section7.01(dd)."
"5.14 Disclosure. Holdings has disclosed to the Agents and the Lenders all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries or any other Loan Party is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. No report, financial statement, certificate or other information furnished (whether in writing or orally) by or on behalf of any Loan Party (other than projected financial information, pro forma financial information and information of a general economic or industry nature) to any Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or any other Loan Document (as modified or supplemented by other information so furnished), when taken as a whole, contains any 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 materially misleading; provided that, with respect to projected and pro forma financial information, Holdings represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time of delivery of such information to any Agent or Lender; it being understood that such projections may vary from actual results and that such variances may be material."
"5.19 Perfection, Etc. Subject to the last paragraph of Section4.01, all filings and other actions necessary or desirable to create, perfect and protect the Lien in the Collateral of the Collateral Agent, for the benefit of the Secured Parties, securing the Secured Obligations created under the Collateral Documents have been duly made or taken and are in full force and effect, and the Collateral Documents create in favor of the Collateral Agent, for the benefit of the Secured Parties a valid and, together with such filings and other actions, perfected first priority Lien in the Collateral, securing the payment of the Secured Obligations, subject to Liens permitted by Section7.01. The Loan Parties are the legal and beneficial owners of the Collateral free and clear of any Lien, except for the Liens created or permitted under the Loan Documents."
"(a) (i)within one hundred and twenty (120) days after the Closing Date or such later date (but in any event no later than 180 days after the Closing Date) as may be reasonably agreed by the Administrative Agent, a combined balance sheet of the Target as at the end of such fiscal year, and the related combined statements of income or operations, shareholders equity and cash flows for the twelve (12) month period ending September30, 2013, prepared in accordance with IFRS, audited and accompanied by a report and opinion of Ernst& Young LLP or any other independent certified public accountant of nationally recognized standing (it being understood and acknowledged that that the Borrower need only exercise commercially reasonable efforts in order to deliver the specified financial information within the time periods set forth in this clause (i)) and (ii)as soon as available, but in any event within ninety (90) days after the end of each fiscal year of the Borrower, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, shareholders equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP (subject to Section1.03(c)),"
"audited and accompanied by a report and opinion of Ernst& Young LLP or any other independent certified public accountant of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any going concern or like qualification, exception or explanatory paragraph or any qualification, exception or explanatory paragraph as to the scope of such audit (other than any such exception or explanatory paragraph that is expressly solely with respect to, or expressly resulting solely from, (A)an upcoming maturity date under the credit facilities provided for herein that is scheduled to occur within one year from the time such opinion is delivered or (B)any potential inability to satisfy any financial covenants set forth in any agreement, document or instrument governing or evidencing Indebtedness (including that set forth in Section7.11) on a future date or in a future period), together with a Narrative Report with respect thereto;"
"(d) promptly after the receipt thereof by any Loan Party or any of its Subsidiaries, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any material investigation or other material inquiry by such agency regarding financial or other operational results of any Loan Party or any of its Subsidiaries;"
"(i) promptly, such additional information regarding the business, legal, financial or corporate affairs or operations of any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent, the Collateral Agent or any Lender (through the Administrative Agent) may from time to time reasonably request."
"Documents required to be delivered pursuant to Section6.01(a)or (b)or Section6.02(c)(to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i)on which the Borrower posts such documents, or provides a link thereto on the Borrowers website on the Internet at the website address listed on Schedule 10.02; or (ii)on which such documents are posted on the Borrowers behalf on IntraLinks/IntraAgency or another relevant 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: (i)the Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii)the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent 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. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper 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 by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents."
"6.07 Maintenance of Insurance. Maintain with financially sound and reputable insurance companies, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons of established reputation engaged in the same or similar business, of such types and in such amounts (after giving effect to any self-insurance reasonable and customary for similarly situated Persons of established reputation engaged in the same or similar businesses as the Borrower and its Subsidiaries) as are customarily carried under similar circumstances by such other Persons."
"(a) Use the proceeds of the Term Borrowings on the Closing Date (i) for the Refinancing, (ii) in an amount of up to $65,000,000 (such amount, as reduced pursuant to Section 2.05(b)(iv), the Trade Facility Collateral Term Loan Amount) to cash collateralize directly, or to issue cash collateralized backstop letters of credit in favor of the issuer of, the Trade L/Cs and/or to provide cash collateral to current beneficiaries of the Trade L/Cs in exchange for cancellation of such Trade L/Cs (the Trade L/C Collateralization) and (iii) to finance a portion of the Transactions (including upfront fees and original issue discount); provided that to the extent the Trade L/C Collateralization is less than $65,000,000, the Borrower may use the incremental proceeds of the Term Borrowings to fund the working capital needs of the Restricted Group."
"(iv) within thirty (30) days (or sixty (60) days with respect to Mortgages) after such formation or acquisition, or such longer period, not to exceed an additional sixty (60) days, as the Administrative Agent may agree in its sole discretion, take, and cause such Restricted Subsidiary that is not an Excluded Subsidiary to take, whatever additional action (including, without limitation, the recording of Mortgages (with respect to Material Real Properties only), the filing of Uniform Commercial Code financing statements, the giving of notices and the endorsement of notices on title documents and delivery of stock and membership interest certificates) as may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and subsisting Liens (to the extent required by the Collateral Documents) on the properties purported to be subject to the Mortgages, Security Agreement Supplements, Intellectual Property Security Agreement Supplements and other Collateral Documents delivered pursuant to this Section 6.12, enforceable against all third parties in accordance with their terms;"
"(c) Notwithstanding the foregoing, the Collateral Agent shall not take a security interest in those assets as to which the Administrative Agent shall determine, in its reasonable discretion, that the cost of obtaining such Lien (including any mortgage, stamp, intangibles or other tax) are excessive in relation to the benefit to the Lenders of the security afforded thereby."
"(a) Promptly upon request by the Administrative Agent, the Collateral Agent, an L/C Issuer or any Lender through the Administrative Agent, (i) correct any material defect or error that may be discovered in the execution, acknowledgment, filing or recordation of any Loan Document or other document or instrument relating to any Collateral, and (ii) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent, the Collateral Agent, an L/C Issuer or any Lender"
"(ix) evidence that all fees, costs and expenses have been paid in connection with the preparation, execution, filing and recordation of the Mortgages, including, without limitation, reasonable attorneys fees, filing and recording fees, title insurance company coordination fees, documentary stamp, mortgage and intangible taxes and title search charges and other charges incurred in connection with the recordation of the Mortgages and the other matters described in this Section 6.14 and as otherwise required to be paid in connection therewith under Section 10.04."
"(c) Liens for taxes, assessments or governmental charges which are either (x) immaterial to the Restricted Group taken as a whole or (y) not overdue for a period of more than thirty (30) days and which are being contested in good faith and by appropriate proceedings diligently conducted, and adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP (subject to Section 1.03(c));"
"(d) statutory or common law Liens of landlords, carriers, warehousemen, mechanics, materialmen, repairmen, construction contractors or other like Liens arising in the ordinary course of business which secure amounts not overdue for a period of more than thirty (30) days and which are being contested in good faith and by appropriate proceedings diligently conducted and adequate reserves with respect thereto are maintained on the books of the applicable Person;"
"second sentence of the definition of Unrestricted Subsidiary, provided, however, the foregoing exclusion shall not apply to Liens existing on property that would have otherwise been permitted by this Section 7.03(q) had such Unrestricted Subsidiary been a Restricted Subsidiary at the time such property was acquired by such Unrestricted Subsidiary) after the Closing Date (other than Liens on the Equity Interests of any Person that becomes a Subsidiary); provided that (i) such Lien was not created in contemplation of such acquisition or such Person becoming a Subsidiary, (ii) such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof), and (iii) the Indebtedness secured thereby is permitted under Section 7.03(k)(B);"
"(B) the total cash and noncash consideration (including, without limitation, the fair market value of all Equity Interests issued or transferred to the sellers thereof, earnouts and other contingent payment obligations to such sellers and all assumptions of Indebtedness in connection therewith) paid by or on behalf of the Borrower and its Restricted Subsidiaries for any such purchase or other acquisition of an entity that does not become a Guarantor or of assets that do not become Collateral because such assets are owned by an entity that is not required to become a Guarantor, when aggregated"
"(F) The Borrower shall have delivered to the Administrative Agent, on behalf of the Lenders, at least one (1) Business Day prior to the date on which any such purchase or other acquisition is to be consummated, 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 (i) have been satisfied or will be satisfied on or prior to the consummation of such purchase or other acquisition;"
"(t) Investments (including for greater certainty Investments in non-Loan Parties and Permitted Acquisitions thereof in excess of limitations set forth in the foregoing clauses (c)(iv) and (i)(B), respectively) made with the portion, if any, of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 7.02(t), 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;"
"(l) Indebtedness arising from agreements of the Borrower or a Restricted Subsidiary providing for customary indemnification, deferred purchase price, obligations in respect of earnouts or other adjustments of purchase price or, in each case, similar obligations, in each case, incurred or assumed in connection with the Permitted Acquisition, or other acquisition or Disposition of any business or assets or Person or any Equity Interests of a Subsidiary otherwise permitted hereunder, provided that, with respect to Dispositions, the maximum liability of the Borrower and the Restricted Subsidiaries in respect of all such Indebtedness shall at no time exceed the gross proceeds, including the fair market value of non-cash proceeds (measured at the time received and without giving effect to any subsequent changes in value), actually"
"(r) Indebtedness (Specified Affiliate Indebtedness) in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that (A)the borrower with respect to such Indebtedness shall be the Borrower; (B)the lender with respect to such Indebtedness shall be the Sponsor or any of its Affiliates other than Holdings, the Borrower and its Restricted Subsidiaries or any other portfolio company of the Sponsor; (C)the all-in interest rate per annum with respect to such Indebtedness shall not exceed a market interest rate as determined by the Borrower, and in any event shall not exceed the Eurocurrency Rate for Dollars for a one-month interest period plus 4.50 % per annum; (D)the fees with respect to such Indebtedness shall not exceed the fees payable by the Borrower with respect to the Revolving Credit Facility; (E)no premiums shall be payable with respect to such Indebtedness; (F)such Indebtedness shall be unsecured; (G)if guaranteed, such Indebtedness shall be guaranteed by one or"
"more of the Guarantors only and there shall be no additional guarantors with respect to such Indebtedness other than the Sponsor or any of its Affiliates other than Holdings, the Borrower, or its Restricted Subsidiaries or other portfolio companies of the Sponsor; (H)such Indebtedness shall not be subject to any amortization or scheduled prepayments of principal; (I)the covenants, events of default, Guarantees 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 (I), 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); (J)such Indebtedness shall not have any financial covenants; (K)the proceeds of such Indebtedness shall be used solely to fund working capital needs of the Restricted Group; (L)any repayment or prepayment of such Indebtedness shall be subject to (1)Holdings, the Borrower and its Restricted Subsidiaries being in compliance with the financial covenant set forth in Section7.11 as of the most recently completed period of four consecutive fiscal quarters ending prior to the date of any repayment or prepayment of such Indebtedness for which financial statements have been delivered pursuant to Section6.01(a)or 6.01(b)(whether or not such covenant was in fact required to be tested at the end of such period pursuant to Section7.11) immediately prior to and after giving effect to such repayment or prepayment and (2)there shall be no Outstanding Amount under the Revolving Credit Facility immediately prior to and after giving effect to such repayment or prepayment; (M)and such Indebtedness shall be subordinated on terms reasonably satisfactory to the Administrative Agent; and (N)such Indebtedness shall be disregarded for purposes of determining the availability or amount of any covenant baskets or carve-outs;"
"(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i)the transferee must either be the Borrower or a Guarantor or (ii)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, respectively;"
(b) the abandonment or other Disposition of IP Rights (including allowing any registrations or any applications for registration of any IP Rights to lapse or go abandoned) to the extent Borrower determines in its reasonable business judgment that (i)such IP Rights are not commercially reasonable to maintain under the circumstances and (ii)such Disposition could not reasonably be expected to materially and adversely affect the business of the Borrower or any of its Restricted Subsidiaries;
"(k) sales of property and issuances and sales of Equity Interests (A)among or between Loan Parties (other than Holdings); provided that the sale or issuance by the Borrower of its Equity Interests to Holdings shall be permitted, (B)among or between Restricted Subsidiaries that are not Loan Parties, (C)by Restricted Subsidiaries that are not Loan Parties to the Loan Parties (other than Holdings) or (D)by Loan Parties to"
"provided, however, that any Disposition of any property pursuant to this Section7.05 (except pursuant to Sections 7.05(e), (h)and (j)), shall be for no less than the fair market value of such property at the time of such Disposition. To the extent any Collateral is Disposed of as expressly permitted by this Section7.05, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent and the Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing."
"7.08 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate of the Borrower, whether or not in the ordinary course of business, other than (a)transactions among Loan Parties and their Restricted Subsidiaries, (b)on fair and reasonable terms substantially as favorable to the Borrower or such Restricted Subsidiary as would be obtainable by the Borrower or such Restricted Subsidiary at the time in a comparable arms length transaction with a Person other than an Affiliate, (c)the Transactions and the payment of fees and expenses in connection with the consummation of the Transactions, (d)(i)so long as no Event of Default under Section8.01(a), (f)or (g)shall have occurred and be continuing, the direct or indirect payment of fees (including termination payments) and/or other payments to the Sponsor or its Affiliates pursuant to the Sponsor Management Agreement (which fees and/or payments shall not exceed (A)in respect of annual fees and/or payments, up to the greater of (x)$4,000,000 and (y)an amount equal to 1% of the aggregate amount of the cash equity contributions directly or indirectly made by the Sponsor to Holdings and further contributed to the Borrower (other than any cash equity contributions constituting a Cure Amount), (B)in respect of the fees and/or payments payable in connection with the Acquisition, the amount disclosed to the Administrative Agent on or prior to the Closing Date and (C)in respect of fees"
"Indebtedness described in the preceding clause (a)(3) with the proceeds of any Specified Second Lien Refinancing Debt in respect thereof or any Permitted Other Indebtedness that is unsecured or secured on a junior basis to the First Lien Obligations, in each case, to the extent not required to prepay any Loans or Facility pursuant to Section 2.05(b); (iii) the conversion of any Junior Financing to Equity Interests (other than Disqualified Equity Interests); (iv) the prepayment of any Junior Financing or Permitted Refinancing thereof, in an aggregate amount not to exceed an amount (which shall not be less than zero) equal to the greater of $20,000,000 and 1.5% of Consolidated Total Assets, (v) (A) any repayment or prepayment of Specified Affiliate Indebtedness that is permitted by clause (L) of Section 7.03(r) and (B) the refinancing of Specified Affiliate Indebtedness with the Net Cash Proceeds 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 (vi) as contemplated by clause (x) of the last sentence of Section 2.05(c) of this Agreement or (b) amend, modify or change in any manner materially adverse to the interests of the Administrative Agent, the Collateral Agent or the Lenders any term or condition of any Junior Financing Documentation."
"(b) Nothing in this Section 7.15 shall prevent Holdings from (i) the maintenance of its legal existence (including the ability to incur fees, costs and expenses relating to such maintenance), (ii) the performance of its obligations with respect to the Transactions, (iii) any public offering of its common stock or any other issuance or sale of its Equity Interests (other than Disqualified Equity Interests), (iv) making Restricted Payments or Dispositions (other than Dispositions of the Equity Interests of the Borrower), (v) participating in tax, accounting and other administrative matters as a member of the consolidated group of Holdings and the Borrower, (vi) holding any cash and Cash Equivalents (but not operating any property), (vii) providing indemnification to officers, managers and directors, (viii) any activities incidental to compliance with the provisions of the Securities Act of 1933, as amended and the Exchange Act of 1934, as amended, any"
"(e) Cross-Default. (i) Any Loan Party or any Restricted Subsidiary (A) fails to make any payment beyond the applicable grace period with respect thereto, if any (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any (x) Indebtedness under the Second Lien Credit Agreement or (y) any other Indebtedness (other than Indebtedness hereunder) having (in the case of this clause (y)) an aggregate principal amount of more than the Threshold Amount, or"
"(g) Inability to Pay Debts; Attachment. (i) Any Loan Party or any Restricted Subsidiary that is not an Immaterial Subsidiary thereof becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (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 such Person and is not released, vacated or fully bonded within sixty (60) calendar days after its issue or levy; or"
"8.03 Right to Cure. Notwithstanding anything to the contrary contained in Section 8.01 or 8.02, in the event that the Borrower fails to comply with the requirements of the financial covenant set forth in Section 7.11, then (A) until the expiration of the 10th day subsequent to the date the relevant financial statements are required to be delivered with respect to such fiscal quarter pursuant to Section 6.01(a) or 6.01(b), the Borrower shall have the right to issue common equity to Holdings for cash (the Cure Right), and upon the receipt by the Borrower of such cash (the Cure Amount) pursuant to the exercise by the Borrower of such Cure Right, the calculation of Consolidated EBITDA as used in the financial covenant set forth in Section 7.11 shall be recalculated giving effect to the following pro forma adjustments:"
"8.04 Application of Funds. After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02), any amounts received on account of the First Lien Obligations shall, subject to the provisions of Sections 2.15 and 2.16, be applied by the Collateral Agent in the following order:"
"First, to payment of that portion of the First Lien Obligations constituting fees, indemnities, expenses and other amounts (including fees, disbursements and other charges of counsel payable under Section 10.04 and amounts payable under Article III) payable to the Administrative Agent or the Collateral Agent, each in its capacity as such;"
"Second, to payment of that portion of the First Lien Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuers (including fees, disbursements and other charges of counsel payable under Sections 10.04 and 10.05) arising under the Loan Documents and amounts payable under Article III, ratably among them in proportion to the respective amounts described in this clause Second payable to them;"
"Subject to Sections 2.03(c) and 2.15, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired without any pending drawing thereon, such remaining amount shall be applied to the other First Lien Obligations, if any, in the order set forth above."
"through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. None of the Administrative Agent or the Collateral Agent shall be responsible for the negligence or misconduct of any agent or attorney-in- fact that it selects in the absence of its own gross negligence or willful misconduct to the extent determined in a final, nonappealable judgment by a court of competent jurisdiction."
"9.03 Liability of Agents. No Agent-Related Person shall (a) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct in connection with its duties expressly set forth herein, to the extent determined in a final, nonappealable judgment by a court of competent jurisdiction), or (b) be responsible in any manner to any Lender or participant for any recital, statement, representation or warranty made by any Loan Party or any officer thereof, contained herein or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent or the Collateral Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or the perfection or priority of any Lien or security interest created or purported to be created under the Collateral Documents, or for any failure of any Loan Party or any other party to any Loan Document to perform its obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any Lender or participant to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan Party or any Affiliate thereof."
"(a) Each Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, communication, signature, resolution, representation, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, electronic mail 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 any Loan Party), independent accountants and other experts selected by such Agent. Each Agent shall be fully justified in failing or refusing to take any action under any Loan Document unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Each 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 (or such greater number of Lenders as may be expressly required hereby in any instance) and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders."
"9.06 Credit Decision; Disclosure of Information by Agents. Each Lender acknowledges that no Agent-Related Person has made any representation or warranty to it, and that no act by any Agent hereafter taken, including any consent to and acceptance of any assignment or review of the affairs of any Loan Party 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 each 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 Loan Parties and their respective Subsidiaries, 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 the Borrower and the other Loan Parties 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 Loan 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 the Borrower and the other Loan Parties. Except for notices, reports and other documents expressly required to be furnished to the Lenders by any Agent herein, such 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 of the Loan Parties or any of their respective Affiliates which may come into the possession of any Agent-Related Person."
"9.08 Agents in their Individual Capacities. Any Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire Equity Interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with each of the Loan Parties and their respective Affiliates as though it were not an Agent or an L/C Issuer hereunder and without notice to or consent of the Lenders. The Lenders acknowledge that, pursuant to such activities, an Agent or its Affiliates may receive information regarding any Loan Party or its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that such Agent shall be under no obligation to provide such information to them. With respect to its Loans, such Agent shall have the same rights and powers under this Agreement as any other Lender and may exercise such rights and powers as though it were not an Agent or an L/C Issuer, and the terms Lender and Lenders include such Agent in its individual capacity."
"(b) Any resignation by the Administrative Agent pursuant to this Section 9.09 shall also constitute its resignation as an L/C Issuer. Any resignation by the Administrative Agent pursuant to this Section 9.09 shall also constitute its resignation as the Collateral Agent. Upon the acceptance of a successors appointment as Administrative Agent, hereunder, (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 the retiring Collateral Agent, (ii) the retiring L/C Issuer or the retiring Collateral Agent shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (iii) 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 retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit."
"(a) to release any Lien on any property granted to or held by the Collateral Agent under any Loan Document (i) upon termination of the Aggregate Commitments and payment in full of all First Lien Obligations (other than (A) contingent indemnification obligations not yet accrued and payable and (B) obligations and liabilities under Secured Cash Management Agreements and Secured Hedge Agreements as to which arrangements satisfactory to the applicable Cash Management Bank or Hedge Bank shall have been made) 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 L/C Issuer shall have been made), (ii) that is sold or to be sold as part of or in connection with any sale permitted hereunder or under any other Loan Document, or (iii) subject to Section 10.01, if approved, authorized or ratified in writing by the Required Lenders;"
"9.12 Secured Cash Management Agreements and Secured Hedge Agreements. No Cash Management Bank or Hedge Bank that obtains the benefits of Section 8.04, any Guaranty or any Collateral by virtue of the provisions hereof or of any 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) 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, none of the Administrative Agent or the Collateral Agent shall be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, First Lien Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements unless the"
"and all such instruments promptly upon request by the Administrative Agent or the Collateral Agent. In case any Supplemental Administrative Agent, or a successor thereto, shall die, become incapable of acting, resign or be removed, all the rights, powers, privileges and duties of such Supplemental Administrative Agent, to the extent permitted by Law, shall vest in and be exercised by the Administrative Agent or the Collateral Agent, as applicable, until the appointment of a new Supplemental Administrative Agent."
"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 Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrower 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 (x) the Administrative Agent and the Borrower may, with the consent of the other (and no other Person), amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, omission, typographical error, mistake, defect or inconsistency if such amendment, modification or supplement does not adversely affect the rights of any Agent, any L/C Issuer or any Lender or to cause one or more Loan Documents to be consistent with other Loan Documents, (y) only the consent of the Borrower and the Required Revolving Lenders shall be necessary to amend, waive or modify the terms and provisions of Sections 4.02 (with respect to the Credit Extensions under the Revolving Credit Facility, other than any L/C Credit Extension for which the consent of each applicable L/C Issuer shall also be required), 7.11, 8.01(b) (to the extent arising from the breach of Section 7.11) or the application of the proviso thereto and the last sentence of Section 8.02 (and related definitions as used in such Sections, but not as used in other Sections of this Agreement), and no such amendment, waiver or modification shall become effective without the consent of the Required Revolving Lenders and (z) no such amendment, waiver or consent shall:"
"(b) postpone any date scheduled for any payment of principal of, or interest on, any Loan or L/C Borrowing, or any fees or other amounts payable hereunder, without the written consent of each Lender directly affected thereby, it being understood that the waiver of any mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest;"
"(d) change (i) any provision of this Section 10.01, Section 2.06(c) 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 (other than the definitions specified in clause (ii) of this Section 10.01(d)), without the written consent of each Lender or (ii) the definition of Required Revolving Lenders, Required Term Lenders without the written consent of each Lender under the applicable Facility;"
"Commitments or Loans of such Class(es) under such Affected Facility as to which such Lenders acceptance has been made. The Borrower and each Loan Modification Accepting Lender shall execute and deliver to the Administrative Agent an agreement in form and substance satisfactory to the Administrative Agent giving effect to the Permitted Amendment (a Loan Modification Agreement) and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Loan Modification Accepting Lenders under the Affected Facility. Notwithstanding the foregoing, no Permitted Amendment shall become effective under this paragraph unless the Administrative Agent shall have received all corporate documents, officers certificates or legal opinions consistent with those delivered on the Closing Date under Section 4.01 reasonably requested by the Administrative Agent. As used in this paragraph, Permitted Amendments shall be limited to (i) an extension of the final maturity date of the applicable Loans of the Loan Modification Accepting Lenders (provided that such extension may not result in having more than two additional final maturity dates in any year, or more than three additional final maturity dates at any time, under this Agreement without the consent of the Administrative Agent), (ii) a reduction, elimination or extension of the scheduled amortization of the applicable Loans of the Loan Modification Accepting Lenders, (iii) a change in rate of interest (including a change to the Applicable Margin and any provision establishing a minimum rate), premium, or other amount with respect to the applicable Loans of the Loan Modification Accepting Lenders and/or a change in the payment of fees to the Loan Modification Accepting Lenders (such change and/or payments to be in the form of cash, Equity Interests or other property to the extent not prohibited by this Agreement); provided that any additional premiums pursuant to this clause (iii) shall apply to the applicable Loans of the Loan Modification Accepting Lenders after the Latest Maturity Date then in effect with respect to the Affected Facility and (iv) any other amendment to a Loan Document required to give effect to the Permitted Amendments described in clauses (i) through (iii) of this sentence."
"(b) Electronic Communications. Notices and other communications to the Lenders and the L/C Issuers 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 any L/C Issuer pursuant to Article II if such Lender or such L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving, or is unwilling to receive, notices under such Article II by electronic communication. 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 prescribe, (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."
"No Loan Party shall be liable for any settlement of any claim, investigation, litigation or proceeding effected without the Borrowers consent (which consent shall not be unreasonably withheld or delayed), but if settled with the Borrowers consent, or if there is a judgment against an Indemnitee in any such claim, investigation, litigation or proceeding, you agree to indemnify and hold harmless each Indemnitee in the manner set forth above. Notwithstanding the immediately preceding sentence, if at any time an Indemnitee shall have requested in accordance with this Section 10.05 that you reimburse such Indemnitee for legal or other expenses in connection with investigating, responding to or defending any claim, investigation, litigation or proceeding, which legal or other expenses are reimbursable pursuant to this Section 10.05, you shall be liable for any settlement of any claim, investigation, litigation or proceeding effected without your written consent if (a) such settlement is entered into more than forty-five (45) days after such request for reimbursement is sent to you and (b) you shall not have reimbursed such Indemnitee in accordance with such request prior to the date of such settlement (unless such reimbursement request is subject to a good faith dispute). The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent or the Collateral Agent, the replacement of any L/C Issuer or any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other First Lien Obligations. For the avoidance of doubt, any indemnification relating to Taxes, other than Taxes arising from a non-Tax claim, shall be covered by Section 3.01 and shall not be covered by this Section 10.05."
"10.06 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made to any Agent, to any L/C Issuer or any Lender, or any 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 such 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 the Administrative Agent or the Collateral Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by any 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 Federal Funds Rate from time to time in effect. The obligations of the Lenders and the L/C Issuers under clause (b) of the preceding sentence shall survive the payment in full of the First Lien Obligations and the termination of this Agreement."
"(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 hereby, except that 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 (except as permitted by Section 7.04), 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 Section 10.07(b), (ii) by way of participation in accordance with the provisions of Section 10.07(d), (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 10.07(f), (iv) to an SPC in accordance with the provisions of Section 10.07(g) or (v) in accordance with Section 10.07(i) or 10.07(j) (and any other attempted assignment or transfer by any party hereto shall be null and void); provided that, for the avoidance of doubt, no assignments to the Borrower or any of its Affiliates shall be permitted other than in accordance with Section 10.07(i) or 10.07(j). 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 Section 10.07(d) and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement."
"(c) The Administrative Agent, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at the Administrative Agents Office a copy of each Assignment and Assumption and each Affiliated Lender 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 related interest amounts) of the Loans, L/C Obligations (specifying the Unreimbursed Amounts), L/C Borrowings and amounts due under Section2.03, owing to, each Lender pursuant to the terms hereof from time to time (the Register). The entries"
"(g) Notwithstanding anything to the contrary contained herein, any Lender (a Granting Lender) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower (an SPC) the option to provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided, that (i)nothing herein shall constitute a commitment by any SPC to fund any Loan, and (ii)if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof or, if it fails to do so, to make such payment to the Administrative Agent as is required under Section2.12(b)(ii). Each party hereto hereby agrees that an SPC shall be entitled to the benefits of Section3.01, 3.04 and 3.05 (subject to the requirements and the limitations of such Sections and the obligations to provide the forms and certifications pursuant to Section3.01 as if it were a Lender); provided that neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change the obligations of the Borrower under this Agreement (including its obligations under Section3.01, 3.04 or 3.05). Each party hereto further agrees that (i)no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, and (ii)the Granting Lender shall for all purposes, including the approval of any amendment, waiver or other modification of any provision of any Loan Document, remain the lender of record hereunder. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior debt of any SPC, it will not, other than in respect of matters unrelated to this Agreement or the transactions contemplated hereby, institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained herein, any SPC may (i)with notice to, but without prior consent of the Borrower and the Administrative Agent and with the payment of a processing fee of $3,500, assign all or any portion of its rights hereunder with respect to any Loan to the Granting Lender and (ii)disclose on a confidential basis any non-public information relating to its funding of Loans to any rating agency, commercial paper dealer or provider of any surety or Guarantee or credit or liquidity enhancement to such SPC."
"Each of the Agents, the Lenders and each L/C Issuer acknowledges that (i)the Information may include material non-public information concerning the Borrower, Holdings or a Subsidiary of either, as the case may be, (ii)it has developed compliance procedures regarding the use of material non-public information and (iii)it will handle such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws."
"(b) SUBMISSION TO JURISDICTION. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE COUNTY OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR 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 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 ANY ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, ANY LENDER OR ANY L/C ISSUER 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."
"10.19 Affiliate Activities. Each of the Borrower and Holdings acknowledge that each Agent and each Arranger (and their respective Affiliates) is a full service securities firm engaged, either directly or through affiliates, in various activities, including securities trading, investment banking and financial advisory, investment management, principal investment, hedging, financing and brokerage activities and financial planning and benefits counseling for both companies and individuals. In the ordinary course of these activities, it may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities) and/or financial instruments (including bank loans) for its own account and for the accounts of its customers and may at any time hold long and short positions in such securities and/or instruments. Such investment and other activities may involve securities and instruments of the Borrower, Holdings and their respective affiliates, as well as of other entities and persons and their Affiliates which may (i)be involved in transactions arising from or relating to the engagement contemplated hereby and by the other Loan documents (ii)be customers or competitors of the Borrower, Holdings and their respective Affiliates, or (iii)have other relationships with the Borrower, Holdings and their respective Affiliates. In addition, it may provide investment banking, underwriting and financial advisory services to such other entities and persons. It may also co-invest with, make direct investments in, and invest or co-invest client monies in or with funds or other investment vehicles managed by other parties, and such funds or other investment vehicles may trade or make investments in securities of the Borrower, Holdings and their respective Affiliates or such other entities. The transactions contemplated hereby and by the other Loan Documents may have a direct or indirect impact on the investments, securities or instruments referred to in this paragraph."
"The Borrower promises to pay interest on the aggregate unpaid principal amount of each Term Loan made by the Lender to the Borrower under the Agreement from the date of such Term Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agents Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement."
"costs and expenses in connection with project ramp-ups; provided that the aggregate amount of add backs made pursuant to this clause (vii), when added to the aggregate amount of add backs pursuant to clauses (ix) and (xix) below, shall not exceed an amount equal to 20% of Consolidated EBITDA for the period of four consecutive fiscal quarters most recently ended prior to the determination date (without giving effect to any adjustments pursuant to this clause (vii) or clauses (ix) or (xix) below)"
"restructuring charges or reserves and business optimization expenses, including restructuring costs and integration costs, costs related to the closure and/or consolidation of facilities, retention charges, contract termination costs, recruiting, retention, relocation, severance and signing bonuses and expenses, systems establishment costs, conversion costs and excess pension charges, consulting fees and any one-time expense relating to enhanced accounting function, and any costs associated with any of the foregoing, in each case, incurred in connection with the restructuring of the Municipal Business"
"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) of the Agreement (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 its definition in the Agreement)"
"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 Section 1.03(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)"
"1.2. Assignee. The Assignee (a)represents and warrants that (i)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 to become a Lender under the Credit Agreement, (ii)it is not an Affiliated Lender, (iii)it meets all requirements of an Eligible Assignee under the Credit Agreement (subject to receipt of such consents as may be required under the Credit Agreement), (iv)from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (v)it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section6.01 thereof, 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 Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Agents or any other Lender, and (vi)attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b)agrees that (i)it will, independently and without reliance on the Agents, the Assignor 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 in taking or not taking action under the Loan Documents, and (ii)it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender."
"For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i)all of the Assignors rights and obligations as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below and (ii)to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i)above (the rights and obligations sold and assigned pursuant to clauses (i)and (ii)above being referred to herein collectively as, the Assigned Interest). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor."
"Information about Holdings or any of its Subsidiaries (or any assumptions upon which such Information is based) supplied by it or by any other person (including Holdings, any of its Subsidiaries and the Sponsor) or be otherwise liable to the Assignee or to any other person with respect to any such Information or assumptions and (B)it and its successors and assigns hereby irrevocably waive any claim or right of action against any Relevant Person or any of their respective representatives that might derive from any of the foregoing];(6)[(xi)it has not used the proceeds of any Credit Extension under the Revolving Credit Facility to consummate the transactions contemplated by this Assignment and Assumption](7)[and] (b)agrees that (i)it will, independently and without reliance on the Agents, the Assignor 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 in taking or not taking action under the Loan Documents, (ii)it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender [and (iii)it will be subject to the restrictions specified in clause (A)of the second to last paragraph of Section10.01 of the Credit Agreement](8)[; (c)affirms the No Undisclosed Information Representation;](9)[(d)agrees to automatically and permanently cancel all Term Loans purchased from the Assignor pursuant to this Assignment and Assumption immediately after the Effective Date].(10)For the avoidance of doubt, Lenders shall not be permitted to assign Revolving Credit Commitments or Revolving Credit Loans to any Affiliated Lender."
"2. Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date."
"A U.S. taxpayer identification number is required for any institution submitting FormW-8ECI. It is also required on FormW-8BEN for certain institutions claiming the benefits of a tax treaty with the U.S. Please refer to the instructions when completing the form applicable to your institution. In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed forms. An original tax form must be submitted."
"(c) Holdings hereby unconditionally and irrevocably agrees that in the event any payment shall be required to be made to any Secured Party under this Guaranty, the Subsidiary Guaranty or any other guaranty, Holdings will contribute, to the maximum extent permitted by law, such amounts to each other Guarantor so as to maximize the aggregate amount paid to the Secured Parties under or in respect of the Loan Documents."
"(a) Holdings hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Borrower, any other Loan Party or any other insider guarantor that arise from the existence, payment, performance or enforcement of Holdings First Lien Obligations under or in respect of this Guaranty or any other Loan Document, including, without limitation, any right of subrogation, reimbursement, exoneration,"
"Section9. Notices, Etc. All notices and other communications provided for hereunder shall be in writing (including telegraphic, telecopy or telex communication or facsimile transmission) and mailed, telegraphed, telecopied, telexed, faxed or delivered to it, if to Holdings, addressed to it in care of the Borrower at the Borrowers address specified in Section10.02 of the Credit Agreement, if to any Agent or any Lender, at its address specified in Section10.02 of the Credit Agreement, if to any Hedge Bank, at its address specified in the Secured Hedge Agreement to which it is a party, if to any Cash Management Bank, at its address specified in the Secured Cash Management Agreement or, as to any party, at such other address as shall be designated by such party in a written notice to each other party. All such notices and other communications shall be deemed to be given or made at such time as shall be set forth in Section10.02 of the Credit Agreement. Delivery by telecopier of an executed counterpart of a signature pageto any amendment or waiver of any provision of this Guaranty shall be effective as delivery of an original executed counterpart thereof."
"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."
"(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT MAYBE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS GUARANTY, HOLDINGS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS. HOLDINGS IRREVOCABLY WAIVES ANY OBJECTION,INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAYNOW OR HEREAFTER HAVE TO THE BRINGING"
"(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;"
"Section3. Waivers and Acknowledgments. (a)Each Guarantor hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, marshaling, presentment, demand for payment or performance, notice of nonpayment or nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed First Lien Obligations and this Guaranty and any requirement that any Secured Party protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against any Loan Party or any other Person or any Collateral."
(f) Each Guarantor waives any right it may have of first requiring any Secured Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any Person before claiming from that Guarantor under this Guaranty. This waiver applies irrespective of any Law or any provision of a Loan Document to the contrary.
"(b) Notwithstanding any provision of this Guaranty to the contrary, all rights of the Guarantors under Section4(a)and all other rights of the Guarantors of contribution or subrogation under applicable Law or otherwise shall be fully subordinated to the payment in full in cash of all the Guaranteed First Lien Obligations. Until the payment in full of the Guaranteed First Lien Obligations (other than contingent obligations that are not then due and payable), no Guarantor shall demand or receive any collateral security, payment or distribution whatsoever (whether in cash, property or securities or otherwise) on account of any such right or claim. If any such payment or distribution is made or becomes available to any Guarantor in any bankruptcy case or receivership, insolvency or liquidation proceeding, such payment or distribution shall be delivered by the Person making such payment or distribution directly to the Collateral Agent, for application to the payment of the Guaranteed First Lien Obligations. If any such payment or distribution is received by any Guarantor, it shall be held by such Guarantor in trust, as trustee of an express trust for the benefit of the Secured Parties, and shall forthwith be transferred and delivered by such Guarantor to the Collateral Agent, in the exact form received and, if necessary, duly endorsed. No failure on the part of any Guarantor to make the payments required by Section4(a)(or any other payments required under applicable Law or otherwise) or on the part of Holdings to make the payments required by Section4(a)of the Holdings Guaranty shall in any respect limit the obligations and liabilities of any Guarantor with respect to its obligations hereunder, and each Guarantor shall remain liable for the full amount of the obligations of such Guarantor hereunder."
"(ii) Such Guarantor has, independently and without reliance upon any Secured Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Guaranty and each other Loan Document to which it is or is to be a party, and such Guarantor has established adequate means of obtaining from each other Loan Party on a continuing basis information pertaining to, and is now and on a continuing basis will be completely familiar with, the business, condition (financial or otherwise), operations, performance, properties and prospects of such other Loan Party."
"Section10. No Waiver; Remedies. No failure on the part of any 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 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 law."
"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 Agent, such Lender or such Affiliate to or for the credit or the account of any Guarantor against any and all of the First Lien Obligations of such Guarantor now or hereafter existing under the Loan Documents, irrespective of whether such Agent or such Lender shall have made any demand under this Guaranty or any other Loan Document and although such First Lien Obligations may be unmatured. Each Agent and each Lender agrees promptly to notify such Guarantor after any such set-off and application; provided, however, that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Agent, each Lender and their respective Affiliates under this Section12 are in addition to other rights and remedies (including, without limitation, other rights of set-off) that such Agent, such Lender and their respective Affiliates may have."
"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."
"(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT MAYBE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS GUARANTY, EACH GUARANTOR CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH GUARANTOR IRREVOCABLY WAIVES ANY OBJECTION,INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAYNOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO."
"Section1. Guaranty; Limitation of Liability. (a)The undersigned hereby, jointly and severally with the other Guarantors absolutely, unconditionally and irrevocably guarantees 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, modifications, substitutions, amendments 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, premium, 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, the undersigneds 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."
"(o) all contracts and agreements between any Grantor and one or more additional parties (including, without limitation, any Swap Contracts, licensing agreements and any partnership agreements, joint venture agreements, limited liability company agreements) and the IP Agreements (as hereinafter defined), in each case as such agreements may be amended, amended and restated, supplemented or otherwise modified from time to time (collectively, the Assigned Agreements), including, without limitation, all rights of such Grantor to receive moneys due and to become due under or pursuant to the Assigned Agreements (all such Collateral being the Agreement Collateral);"
"(vi) all registrations and applications for registration for any of the foregoing, including, without limitation, those registrations and applications for registration set forth in Schedule III hereto (as such Schedule III may be supplemented from time to time by supplements to this Agreement executed by such Grantor to the Collateral Agent from time to time), together with all reissues, divisions, continuations, continuations-in-part, extensions, renewals and reexaminations thereof;"
"provided that notwithstanding anything to the contrary contained in the foregoing clauses (a)through (s), the security interest in the Collateral created by this Agreement shall not extend to, and the terms Collateral, Pledged Equity, Security Collateral, Agreement Collateral, Intellectual Property Collateral and other terms defining the components of the Collateral in the foregoing clauses (a)through (s)shall not include, any of the following (collectively, the Excluded Property):"
"(iv) any property subject to (x)a Capitalized Lease or purchase money security interest permitted under the Credit Agreement or (y)in the case of after-acquired property, pre-existing secured Indebtedness permitted under the Credit Agreement and not incurred in anticipation of such acquisition by the Borrower or applicable Grantor of such property, in each case to the extent a grant of a security interest therein would violate such Capitalized Lease, purchase money arrangement or secured Indebtedness or create a right of termination in favor of any other party thereto (other than any Grantor or an Affiliate of any Grantor);"
"(a) Upon the occurrence and during the continuation of an Event of Default, promptly upon the request of the Collateral Agent, each Grantor will maintain all (i)Electronic Chattel Paper so that the Collateral Agent has control of the Electronic Chattel Paper in the manner specified in Section9-105 of the UCC and (ii)all transferable records so that the Collateral Agent has control of the transferable records in the manner"
"(a) Such Grantors exact legal name, as defined in Section9-503(a)of the UCC, is correctly set forth in Schedule I hereto (as such Schedule I may be supplemented from time to time by supplements to this Agreement). Such Grantor is located (within the meaning of Section9-307 of the UCC) and has its chief executive office, in the state or jurisdiction set forth in Schedule I hereto. The information set forth in Schedule I hereto with respect to such Grantor is true and accurate in all material respects. Unless otherwise stated on Schedule I hereto, the Grantor is not a transmitting utility as defined in UCC  9-102(a)(80)."
(d) Schedule II hereto sets forth all of the Pledged Equity owned by any Grantor and Pledged Debt owned by any Grantor. The Pledged Equity pledged by such Grantor hereunder has been duly authorized and validly issued and is fully paid and non-assessable. The Grantor is not in default of its obligations under any Organization Document of any issuer of Pledged Equity.
"(b) Each Grantor hereby authorizes the Collateral Agent to file one or more financing or continuation statements, and amendments thereto, including, without limitation, one or more financing statements indicating that such financing statements cover all assets or all personal property (or words of similar effect) of such Grantor without the signature of such Grantor, and regardless of whether any particular asset described in such financing statements falls within the scope of the UCC or the granting clause of this Agreement. A photocopy or other reproduction of this Agreement or any financing statement covering the Collateral or any part thereof shall be sufficient as a financing statement where permitted by law. Each Grantor ratifies its authorization for the Collateral Agent to have filed such financing statements, continuation statements or amendments filed prior to the date hereof."
"Section9. Post-Closing Changes; Collections on Assigned Agreements and Accounts. (a)No Grantor will change its name, type of organization, jurisdiction of organization, organizational identification number or location from those set forth in Section6(a)of this Agreement without first giving (x)in the case of the changes in the jurisdiction of organization, not less than ten (10)days (or such lesser period of time as the Collateral Agent may agree) prior written notice to the Collateral Agent and (y)in the case of all other changes, no more than five (5)days (or such greater period of time as the Collateral Agent may agree) subsequent written notice to the Collateral Agent, and taking all action required by the Collateral Agent for the purpose of perfecting or protecting the security interest granted by this Agreement."
"Section10. As to Intellectual Property Collateral. (a)With respect to each item of its Intellectual Property Collateral, each Grantor agrees to take, at its expense, all commercially reasonable steps, including, without limitation, in the U.S. Patent and Trademark Office, the U.S. Copyright Office and any other governmental authority, to (i)maintain the validity and enforceability of such Intellectual Property Collateral and maintain such Intellectual Property Collateral in full force and effect, and (ii)pursue the registration and maintenance of each Patent, Trademark, and Copyright registration and application for registration, now or hereafter included in such Intellectual Property Collateral of such Grantor, including, without limitation, the payment of required fees and taxes, the filing of responses to office actions issued by the U.S. Patent and Trademark Office, the U.S. Copyright Office or other governmental authorities, the filing of applications for renewal or extension, the filing of affidavits under Sections 8 and 15 of the U.S. Trademark Act, the filing of divisional, continuation, continuation-in-part, reissue and renewal applications or extensions, the payment of maintenance fees and the participation in interference, reexamination, opposition, cancellation, infringement and misappropriation proceedings, except to the extent such Grantor determines in its reasonable business judgment that (x)such Intellectual Property Collateral is not commercially reasonable to maintain under the circumstances and (y)the failure to act could not reasonably be expected to materially and adversely affect the business of any Grantor."
"(b) Each Grantor shall notify the Collateral Agent promptly if it knows or has reason to know that any application or registration relating to any Patent, Trademark or Copyright material to the business of such Grantor may become abandoned or dedicated, or of any adverse determination or development (including the institution of, or any such determination or development in, any proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any court but excluding ordinary course rejections and other ordinary course communications from Intellectual Property registries in connection with the prosecution of Intellectual Property applications) regarding such Grantors ownership of any Patent, Trademark or Copyright"
"(i) All rights of each Grantor (x)to exercise or refrain from exercising the voting and other consensual rights that it would otherwise be entitled to exercise pursuant to Section11(a)(i)shall, upon notice to such Grantor by the Collateral Agent, cease and (y)to receive the dividends, interest and other distributions that it would otherwise be authorized to receive and retain pursuant to Section11(a)(ii)shall automatically cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall thereupon have the sole right, without notice to any Grantor, to exercise or refrain from exercising such voting and other consensual rights and to receive and hold as Security Collateral such dividends, interest and other distributions."
"(c) All payments received by any Grantor under or in connection with any Assigned Agreement or otherwise in respect of the Collateral shall be received in trust for the benefit of the Collateral Agent, 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 indorsement)."
"Loan Documents to Collateral shall also mean and be a reference to the Collateral of such Additional Grantor, and (ii)the supplemental schedules I through V attached to each Security Agreement Supplement shall be incorporated into and become a part of and supplement Schedules I through V, respectively, hereto, and the Collateral Agent may attach such supplemental schedules to such Schedules; and each reference to such Schedules shall mean and be a reference to such Schedules as supplemented pursuant to each Security Agreement Supplement."
"Section24. The Mortgages. In the event that any of the Collateral hereunder is also subject to a valid and enforceable Lien under the terms of any Mortgage and the terms of such Mortgage are inconsistent with the terms of this Agreement, then with respect to such Collateral, the terms of such Mortgage shall be controlling in the case of fixtures and real estate leases, letting and licenses of, and contracts and agreements relating to the lease of, real property, and the terms of this Agreement shall be controlling in the case of all other Collateral."
"SECTION3. Supplements to Security Agreement Schedules. The undersigned has attached hereto supplemental Schedules I through V to Schedules I through V, respectively, to the Security Agreement, and the undersigned hereby certifies, as of the date first above written, that such supplemental schedules have been prepared by the undersigned in substantially the form of the equivalent Schedules to the Security Agreement and are complete and correct in all material respects."
"United States intent-to-use Trademark applications, prior to the filing and 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;"
"provided that, notwithstanding anything to the contrary contained in the foregoing clauses (i)through (vi), the security interest created hereby shall not extend to, and the term Collateral shall not include, any lease, license or other agreement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement, or create a right of termination in favor of any other party thereto (other than any Grantor or any Subsidiary of any Grantor), in each case to the extent not rendered unenforceable pursuant to the applicable provisions of the UCC or other applicable law and so long as the applicable provision giving rise to such violation or invalidity or such right of termination was not incurred in anticipation of the entering into of the Credit Agreement, provided, further, that (x)the Collateral includes Proceeds and receivables of any property excluded under this provision, the assignment of which is expressly deemed effective under the UCC notwithstanding such prohibition and (y)such excluded lease, license or other agreement shall otherwise be subject to the security interest created by the Security Agreement upon receiving any necessary approvals or waivers permitting the assignment thereof."
"certificates of public officials and such other documents, and (iii)received such information from officers and representatives of each Obligor and others, as we have deemed necessary or appropriate for the purposes of this opinion. We have examined, among other documents, the following (each dated as of the date hereof unless otherwise noted):"
"To the extent it may be relevant to the opinions expressed herein, we have assumed (i)that all of the parties to the Financing Documents (other than the Obligors) are validly existing and in good standing under the laws of their respective jurisdictions of organization and have the power and authority to execute and deliver the Financing Documents, to perform their obligations thereunder and to consummate the transactions contemplated thereby, (ii)that the Financing Documents have been duly authorized, executed and delivered by all of the parties thereto (other than the Obligors), (iii)that the Financing Documents constitute valid and binding obligations of all the parties thereto (other than the Obligors), enforceable against such parties in accordance with their respective terms, and (iv)that all of the parties to the Financing Documents comply with all laws applicable thereto."
"(b) Assuming the Collateral Agent (and each of the Secured Parties) acquires its interest in the Pledged Securities without notice of any adverse claim and that each of the Pledged Securities is either (i)in bearer form or (ii)in registered form issued in the name of the Collateral Agent or accompanied by an effective indorsement to the Collateral Agent or in blank, the Collateral Agent will acquire its security interest in the Pledged Securities free of any adverse claim."
"11. Upon the due filing and recordation of the Intellectual Property Security Agreement in the United States Patent and Trademark Office, together with the filing of the Financing Statements in the Filing Office, the security interest of the Collateral Agent, for the benefit of the Secured Parties, in all right, title and interest of the relevant Obligors in the Collateral (as identified and defined in the Intellectual Property Security Agreement) will be perfected to the extent that a security interest in the same may be"
"(a) relating to (I)forum selection or submission to jurisdiction (including any waiver of any objection to venue in any court or that a court is an inconvenient forum) to the extent that the validity, binding effect or enforceability of such provision is to be considered by any court other than a court of the State of New York, or (II)choice of governing law to the extent that the parties have not chosen the laws of the State of New York or to the extent that the validity, binding effect or enforceability of such provision (x)is to be considered by any court other than a court of the State of New York or a federal court sitting in the State of New York, in each case applying the choice of law rulesof the State of New York or (y)is contrary to the governing law provided in Sections 1-105(2), 5- 116, 8-110 or 9-301 to 9-306 of the NYUCC, or (III)service of process, or (IV)waivers of any rights to trial by jury;"
"(e) relating to payment of late charges, interest (or discount or equivalent amounts), premium, make-whole payments, collection costs or fees at a rate or in an amount, after or upon the maturity or acceleration of the liabilities evidenced or secured thereby or after or during the continuance of any default or other circumstance, or upon prepayment, that a court would determine in the circumstances to be unreasonable, a penalty or a forfeiture;"
"(v) the creation, attachment, validity, binding effect, enforceability, perfection, priority or other effect of perfection or non-perfection of any security interest in: (1)the proceeds of any collateral other than in accordance with, and subject to the limitations set forth in, Section9-315 of the NYUCC, (2)goods which are accessions to, or commingled or processed with, other goods other than in accordance with, and subject to the limitations set forth in, Section9-335 or 9-336 of the NYUCC, (3)items subject to a certificate-of-title statute or other statute, regulation or treaty set forth in Section9-311(a)of the NYUCC, (4)consumer goods, (5)commercial tort claims, (6)rights to demand payment or performance under a letter of credit, (7)commodity accounts or commodity contracts, (8)as extracted collateral, (9)farm products, (10)goods that are or are to become fixtures to the extent required to be perfected by the filing of a fixture filing, (11) health care insurance receivables, (12) manufactured homes, (13) standing timber or timber to be cut, (14) cooperative apartment interests, (15) any item of collateral that is subject to restriction on or prohibition against transfer (except to the extent such restriction or prohibition is rendered ineffective by Sections 9-401, 9-406, 9-407, 9-408 or 9-409 of the NYUCC) contained in an agreement, instrument, document or applicable law governing, evidencing or otherwise relating to such item, or (16) any obligations of the United States of America or any other governmental unit;"
"(B) Our opinions are subject to (i)bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors rights generally, (ii)general equitable principles (including, without limitation, standards of materiality, good faith, fair dealing and reasonableness, equitable defenses and limits on the availability of equitable remedies), whether considered in a proceeding at law or in equity, and (iii)the qualification that certain provisions of the Financing Documents may be unenforceable in whole or in part, but the inclusion of such provisions does not affect the validity as against any Obligor of the Financing Documents as a whole, and the Financing Documents and the laws of the State of New York contain adequate provisions for enforcing payment of the obligations governed or secured thereby subject to the other qualifications contained in this letter."
"(F) We express no opinion as to the application of, and our opinions are subject to the effect, if any, of state securities or blue sky laws and, except as expressly stated in paragraphs 6 and 7 above, federal securities laws, or rulesand regulations of the Financial Industry Regulatory Authority. Without limiting the generality of the foregoing, we express no opinion as to the need for consent, non-contravention, legality or enforceability with respect to any guaranty provided by any person that is not an eligible contract participant within the meaning of section 1a(18) of the Commodity Exchange Act (as interpreted by the Commodity Futures Trading Commission in its regulations, rules, orders, letters or other announcements), insofar as such guaranty relates to an agreement, contract or transaction that constitutes a swap within the meaning of section 1a(47) of the Commodity Exchange Act."
"Our opinions in paragraph 8 above are limited to Article9 of the NYUCC, and our opinions in paragraph 10 above are limited to Articles 3, 8 and 9 of the NYUCC and, therefore, those opinions do not address (i)laws of jurisdictions other than New York, and of New York except for Articles 3, 8 or 9, as the case may be, of the NYUCC, (ii)collateral of a type not subject to Article9 of the NYUCC, and (iii)except as stated in paragraph 10 above, under the NYUCC what law governs perfection of the security interests granted in the collateral addressed by this opinion letter. Our opinions in paragraph 9 above are limited to Article9 of the DEUCC and, therefore, those opinions do not address (i)laws of jurisdictions other than"
"to the Interstate Commerce Act, as amended, or a corporation or other entity organized for the purpose of engaging in transportation as such a carrier, or a person authorized by the Interstate Commerce Commission to acquire control of any carrier, (b)an air carrier or (c)subject to regulation by the Federal Communications Commission, the Federal Interstate Commerce Commission or the Federal Railroad Administration."
"Reference is made to (i)that certain First Lien Credit Agreement, dated as of the date hereof (the First Lien Credit Agreement), among WTG HOLDINGS III CORP., a Delaware corporation, as Borrower, WTG HOLDINGS II CORP., a Delaware corporation (Holdings), each lender from time to time party thereto, CREDIT SUISSE AG, as administrative agent and as collateral agent and the L/C Issuers referred to therein and (ii)that certain Second Lien Credit Agreement, dated as of the date hereof (the Second Lien Credit Agreement and, together with the First Lien Credit Agreement, the Credit Agreements), among the Borrower, Holdings, each lender from time to time party thereto and CREDIT SUISSE AG, as administrative agent and as collateral agent. Capitalized terms used but not defined herein have the meanings set forth in the Credit Agreements, as applicable. This certificate is furnished to the Administrative Agents pursuant to Section4.01(a)(ix) of the Credit Agreements."
"4. 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 Term Lenders (other than Term 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 Term Lenders, could reasonably be expected to have a material effect upon, or otherwise be material to, Holdings, the Borrower and the Restricted Subsidiaries."
"This Discounted Voluntary Prepayment Notice is delivered to you pursuant to Section 2.05(a)(iii) of that certain First Lien Credit Agreement, dated as of January15, 2014 (as amended, amended and restated, extended, supplemented or otherwise modified from time to time in accordance with its terms, the Agreement; the capitalized terms defined therein being used herein as therein defined), among WTG HOLDINGS III CORP., a Delaware corporation, as Borrower, WTG HOLDINGS II CORP., a Delaware corporation, the Lenders from time to time party thereto, CREDIT SUISSE AG, as Administrative Agent and Collateral Agent, and the L/C Issuers referred to therein."
"2. 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 Term Lenders (other than Term 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 Term Lenders, could reasonably be expected to have a material effect upon, or otherwise be material to, Holdings, the Borrower and the Restricted Subsidiaries."
"Reference is made to that certain First Lien Credit Agreement, dated as of January15, 2014 (as amended, amended and restated, extended, supplemented or otherwise modified from time to time in accordance with its terms, the Agreement), among WTG HOLDINGS III CORP., a Delaware corporation, as Borrower, WTG HOLDINGS II CORP., a Delaware corporation, the Lenders from time to time party thereto, CREDIT SUISSE AG, as Administrative Agent and Collateral Agent, and the L/C Issuers referred to therein. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Agreement.(the Foreign Lender) is providing this certificate pursuant to Section3.01(g)of the Agreement."
"The undersigned has furnished its participating Lender 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 such Lender in writing 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 payment."
"Additional Second Priority Debt Documents means, with respect to any series, issue or class of Additional Second Priority Debt, the promissory notes, credit agreements, loan agreements, note purchase agreements, indentures or other operative agreements evidencing or governing such Indebtedness or the Liens securing such Indebtedness, including the Second Priority Collateral Documents."
"Additional Senior Priority Debt Obligations means, with respect to any series, issue or class of Additional Senior Priority Debt, (a) all advances to, and debts, liabilities, obligations, covenants and duties of, Holdings, the Borrower or any other Grantor arising under or with respect to any such Additional Senior Priority Debt, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees, which accrue after the commencement of any Bankruptcy Case or which would accrue but for the operation of Debtor Relief Laws, whether or not allowed or allowable as a claim in any such proceeding, (b) all other amounts payable to the related Additional Senior Secured Parties under the related Additional Senior Priority Debt Documents and (c) any renewals or extensions of the foregoing."
"Additional Senior Secured Parties means, with respect to any series, issue or class of Additional Senior Priority Debt, the holders of such Indebtedness or any other Additional Senior Priority Debt Obligation, the Representative with respect thereto, any trustee or agent therefor under any related Additional Senior Priority Debt Documents and the beneficiaries of each indemnification obligation undertaken by the Borrower or any other Grantor under any related Additional Senior Priority Debt Documents."
"Discharge of First Lien Credit Agreement Obligations means, with respect to any Shared Collateral, the Discharge of the First Lien Credit Agreement Obligations with respect to such Shared Collateral; provided that the Discharge of First Lien Credit Agreement Obligations shall not be deemed to have occurred in connection with a Refinancing of such First Lien Credit Agreement Obligations with an Additional Senior Priority Debt Facility secured by such Shared Collateral under one or more Additional Senior Priority Debt Documents which has been designated in writing by the"
"Equity Interests means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit interests or units in) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities)."
"(i) any case commenced by or against the Borrower or any other Grantor under any Debtor Relief Law, any other proceeding for the reorganization, recapitalization or adjustment or marshalling of the assets or liabilities of the Borrower or any other Grantor, any receivership or assignment for the benefit of creditors relating to the Borrower or any other Grantor or any similar case or proceeding relative to the Borrower or any other Grantor or its creditors, as such, in each case whether or not voluntary;"
"Second Priority Representative means (i) in the case of any Second Lien Credit Agreement Obligations or the Second Lien Credit Agreement Secured Parties, the Second Lien Administrative Agent and (ii) in the case of any Additional Second Priority Debt Facility and the Additional Second Priority Secured Parties thereunder, the trustee, administrative agent, collateral agent, security agent or similar agent under such Additional Second Priority Debt Facility that is named as the Representative in respect of such Additional Second Priority Debt Facility in the applicable Joinder Agreement."
"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 Senior Priority Secured Party or an affiliate of a Senior Priority Secured Party)."
"Section 3.01. Exercise of Remedies. (a) So long as the Discharge of Senior Priority Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Borrower or any other Grantor, (i) neither any Second Priority Representative nor any Second Priority Secured Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Second Priority Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or other action"
"(d) Each Second Priority Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Second Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Senior Priority Representatives or the Senior Priority Secured Parties with respect to the Senior Priority Collateral as set forth in this Agreement and the Senior Priority Debt Documents."
"Section 5.01. Releases. (a) Each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, agrees that, in the event of a Disposition of any specified item of Shared Collateral (including all or substantially all of the Equity Interests of any Subsidiary of the Borrower) (i) in connection with the exercise of remedies in respect of Collateral or (ii) if not in connection with the exercise of remedies in respect of Collateral, so long as Disposition is permitted by the terms of the Second Priority Debt Documents and, in each case other than in connection with the Discharge of Senior Priority Obligations, the Liens granted to the Second Priority Representatives and the Second Priority Secured Parties upon such Shared Collateral (but not on the proceeds thereof) to secure Second Priority Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared"
"Section 5.04. Rights as Unsecured Creditors. Notwithstanding anything to the contrary in this Agreement, the Second Priority Representatives and the Second Priority Secured Parties may exercise rights and remedies as unsecured creditors against Holdings, the Borrower and any other Grantor in accordance with the terms of the Second Priority Debt Documents and applicable law so long as such rights and remedies do not violate any express provision of this Agreement. Nothing in this Agreement shall prohibit the receipt by any Second Priority Representative or any Second Priority Secured Party of the required payments of principal, premium, interest, fees and other amounts due under the Second Priority Debt Documents so long as such receipt is not the direct or indirect result of the exercise by a Second Priority Representative or any Second Priority Secured Party of rights or remedies as a secured creditor in respect of Shared Collateral. In the event any Second Priority Representative or any Second Priority Secured Party becomes a judgment Lien creditor in respect of Shared Collateral as a result of its enforcement of its rights as an unsecured creditor in respect of Second Priority Obligations, such judgment Lien shall be subordinated to the Liens securing Senior Priority Obligations on the same basis as the other Liens securing the Second Priority Obligations are so subordinated to such Liens securing Senior Priority Obligations under this Agreement. Nothing in this Agreement shall impair or otherwise adversely affect any rights or remedies the Senior Priority Representatives or the Senior Priority Secured Parties may have with respect to the Senior Priority Collateral."
"Section 5.05. Gratuitous Bailee for Perfection. (a) Each Senior Priority Representative acknowledges and agrees that if it shall at any time hold a Lien securing any Senior Priority Obligations on any Shared Collateral that can be perfected by the possession or control of such Shared Collateral or of any account in which such Shared Collateral is held, and if such Shared Collateral or any such account is in fact in the possession or under the control of such Senior Priority Representative, or of agents or bailees of such Person (such Shared Collateral being referred to herein as the Pledged or Controlled Collateral), or if it shall at any time obtain any landlord waiver or bailees letter or any similar agreement or arrangement granting it rights or access to Shared Collateral, the applicable Senior Priority Representative shall also hold such Pledged or Controlled Collateral, or take such actions with respect to such landlord waiver, bailees letter or similar agreement or arrangement, as sub-agent or gratuitous bailee for the relevant Second Priority Representatives, in each case solely for the purpose of perfecting the Liens granted under the relevant Second Priority Collateral Documents and subject to the terms and conditions of this Section 5.05."
"Secured Party, and each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, hereby waives and releases the Senior Priority Representatives from all claims and liabilities arising pursuant to the Senior Priority Representatives roles under this Section 5.05 as sub-agents and gratuitous bailees with respect to the Shared Collateral."
"agent, representative or trustee for the holders of such Senior Priority Obligations shall be the Senior Priority Representative for all purposes of this Agreement. Upon receipt of notice of such incurrence (including the identity of the new Senior Priority Representative), each Second Priority Representative (including the Designated Second Priority Representative) shall promptly (a) enter into such documents and agreements (at the expense of the Borrower), including amendments, supplements or modifications to this Agreement, as the Borrower or such new Senior Priority Representative shall reasonably request in writing in order to provide the new Senior Priority Representative the rights of a Senior Priority Representative contemplated hereby, (b) deliver to such Senior Priority Representative, to the extent that it is legally permitted to do so, all Shared Collateral, including all proceeds thereof, held or controlled by such Second Priority Representative or any of its agents or bailees, including the transfer of possession and control, as applicable, of the Pledged or Controlled Collateral, together with any necessary endorsements and notices to depositary banks, securities intermediaries and commodities intermediaries, and assign its rights under any landlord waiver or bailees letter or any similar agreement or arrangement granting it rights or access to Shared Collateral, (c) notify any applicable insurance carrier that it is no longer entitled to be a loss payee or additional insured under the insurance policies of any Grantor issued by such insurance carrier and (d) notify any governmental authority involved in any condemnation or similar proceeding involving a Grantor that the new Senior Priority Representative is entitled to approve any awards granted in such proceeding."
"Section 8.02. Continuing Nature of This Agreement; Severability. Subject to Section 6.04, this Agreement shall continue to be effective until the Discharge of Senior Priority Obligations shall have occurred. This is a continuing agreement of Lien subordination, and the Senior Priority Secured Parties may continue, at any time and without notice to the Second Priority Representatives or any Second Priority Secured Party, to extend credit and other financial accommodations and lend monies to or for the benefit of Holdings, the Borrower or any Subsidiary constituting Senior Priority Obligations in reliance hereon. The terms of this Agreement shall survive and continue in full force and effect in any Insolvency or Liquidation Proceeding. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall not invalidate 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. The parties 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."
"(c) Notwithstanding the foregoing, without the consent of any Secured Party, any Representative may become a party hereto by execution and delivery of a Joinder Agreement in accordance with Section 8.09 of this Agreement and, upon such execution and delivery, such Representative and the Secured Parties and Senior Priority Obligations or Second Priority Obligations of the Debt Facility for which such Representative is acting shall be subject to the terms hereof."
"FOR 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 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 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 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 ANY SENIOR PRIORITY REPRESENTATIVE, SENIOR PRIORITY SECURED PARTY, SECOND PRIORITY REPRESENTATIVE OR SECOND PRIORITY SECURED PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AGAINST HOLDINGS, THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION."
"(e) EACH PARTY HERETO HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 8.12(E) WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE"
"Section 8.15. Counterparts. This Agreement may be executed in any number of 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 page to this Agreement by telecopier shall be effective as delivery of an original executed counterpart of this Agreement."
apply to the Second Lien Administrative Agent hereunder and (c) each other Representative party hereto is entering into this Agreement in its capacity as trustee or agent for the secured parties referenced in the applicable Additional Senior Priority Debt Document or Additional Second Priority Debt Document (as applicable) and the corresponding exculpatory and liability- limiting provisions of such agreement applicable to such Representative thereunder shall also apply to such Representative hereunder.
"B. As a condition to the ability of the Borrower, Holdings or any other Grantor to incur Senior Priority ClassDebt after the date of the First Lien/Second Lien Intercreditor Agreement and to secure such Senior Priority ClassDebt with the Senior Lien and to have such Senior Priority ClassDebt guaranteed by the Grantors on a senior basis, in each case under and pursuant to the Senior Priority Collateral Documents, the Senior Priority ClassDebt Representative in respect of such Senior Priority ClassDebt is required to become a Representative under, and such Senior Priority ClassDebt and the Senior Priority ClassDebt Parties in respect thereof are required to become subject to and bound by, the First Lien/Second Lien Intercreditor Agreement. Section8.09 of the First Lien/Second Lien Intercreditor Agreement provides that such Senior Priority ClassDebt Representative may become a Representative under, and such Senior Priority ClassDebt and such Senior Priority ClassDebt Parties may become subject to and bound by, the First Lien/Second Lien Intercreditor Agreement, pursuant to the execution and delivery by the Senior Priority ClassDebt Representative of an instrument in the form of this Representative Supplement and the satisfaction of the other conditions set forth in Section8.09 of the First Lien/Second Lien Intercreditor Agreement. The undersigned Senior Priority ClassDebt Representative (the New Representative) is executing this Supplement in accordance with the requirements of the Senior Priority Debt Documents and the Second Priority Debt Documents."
"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 Senior Priority ClassDebt and Senior 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 Senior Priority ClassDebt Parties, hereby agrees to all the terms and provisions of the First Lien/Second Lien Intercreditor Agreement applicable to it as a Senior Priority"
"Section2. The New Representative represents and warrants to the Designated Senior Priority Representative and the other Secured Parties that (i)it has full power and authority to enter into this Representative Supplement, in its capacity as [agent] [trustee], (ii)this Representative Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with the terms of such Agreement and (iii)the Senior Priority Debt Documents relating to such Senior Priority ClassDebt provide that, upon the New Representatives entry into this Agreement, the Senior Priority ClassDebt Parties in respect of such Senior Priority ClassDebt will be subject to and bound by the provisions of the First Lien/Second Lien Intercreditor Agreement as Senior Priority Secured Parties."
"Section6. In case any one or more of the provisions contained in this Representative Supplement should be held invalid, illegal or unenforceable in any respect, no party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining provisions contained herein and in the First Lien/Second Lien Intercreditor Agreement shall not in any way be affected or impaired. The parties hereto 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."
"(a)The Administrative Agent (or its counsel) shall have executed this Amendment and shall have received either (i)counterparts of this Amendment that, when taken together, bear the signatures of (A)Holdings, (B)the Borrower, (C) each Consenting Term Lender, (D) each Increasing Term Lenderand (E) each Incremental Term Lender or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Amendment) that each such party has signed a counterpart of this Amendment."
"(c)The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel shall reasonably have requested relating to the organization, existence and good standing of the Borrower and Holdings, the authorization of this Amendment and the transactions contemplated hereby and any other legal matters relating to the Borrower and Holdings, the Loan Documents or the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel (and substantially consistent with the corresponding documents and certificates delivered by the Borrower and Holdings on the Effective Date)."
"(g)Each Loan Party shall have executed and delivered to the Administrative Agent a written instrument reasonably satisfactory to the Administrative Agent pursuant to which it consents to this Amendment and the Incremental Term Loans (if it is not a party hereto) and agrees that the Guarantee Agreement, the Collateral Agreement and the other Security Documents to which it is party will continue to apply in respect of the Amended Credit Agreement and the Guaranteed Obligations and Secured Obligations of such Loan Party (including the Incremental Term Loans)."
"(h)The Administrative Agent shall have received evidence that each Non- Consenting Term Lender shall have received payment of an amount equal to the outstanding principal amount of its Term Loans, accrued interest thereon, accrued fees and all other amounts payable to it under the Existing Credit Agreement (including pursuant to Section 2.11(g) thereof) in accordance with Section 9.02(c) of the Credit Agreement and Section 2(b) hereof."
"(i)The Administrative Agent shall have received a written Borrowing Request from the Borrower in respect of the Incremental Term Loans complying with the requirements in Section 2.03 of the Credit Agreement not later than 12:00noon, New York City time, three Business Days before the Second Amendment Effective Date (or such later date as the Administrative Agent may agree)."
"THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this Amendment) dated as of October19, 2017, is among RSP Permian, Inc., a Delaware corporation (the Parent), RSP Permian, L.L.C., a Delaware limited liability company (the Borrower), each of the undersigned Lenders and JPMorgan Chase Bank, N.A., as administrative agent for the Lenders (in such capacity, together with its successors in such capacity, the Administrative Agent)."
"Alternate Base Rate means, for any day, a rate per annum equal to the greatest of (a)the Prime Rate in effect on such day, (b)the NYFRB Rate in effect on such day plus 12 of 1% and (c)the Adjusted LIBO Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided that for the purpose of this definition, the Adjusted LIBO Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen Rate is not available for such one month Interest Period, the Interpolated Rate) at approximately 11:00 a.m. London time on such day. Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate, respectively. If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section5.06, 5.07 or 5.10 hereof, then the Alternate Base Rate shall be the greater of clause (a)and (b) above and shall be determined without reference to clause (c)above. For the avoidance of doubt, if the Alternate Base Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement."
"5.5 Counterparts. This Amendment may be executed by one or more of the parties hereto in any number of separate counterparts, and all of such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of this Amendment by facsimile or electronic transmission (including pdf or tif) shall be effective as delivery of a manually executed counterpart hereof."
"Advance means a borrowing hereunder (i)made by the Lenders on the same Borrowing Date, or (ii)converted or continued by the Lenders on the same date of conversion or continuation, consisting, in either case, of the aggregate amount of the several Loans of the same Type and, in the case of Eurocurrency Loans, for the same Interest Period (with the Type and Interest Period determined after giving effect to the applicable conversion or continuation, in the case of the foregoing clause(ii))."
"Change in Law means the occurrence, after the Effective Date (or, with respect to any Lender, if later, the date on which such Lender becomes a Lender), of any of the following: the adoption of or change in any law, governmental or quasi-governmental rule, regulation, policy, guideline, interpretation, or directive (whether or not having the force of law) or in the interpretation, promulgation, implementation or administration thereof by any Governmental or quasi-Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, including, notwithstanding the foregoing, all requests, rules, guidelines or directives (except to the extent they are merely proposed and not in effect) (x)in connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act or (y)promulgated by the Bank for International Settlements, the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority) or the United States financial regulatory authorities, in each case of clauses(x) and (y), regardless of the date enacted, adopted, issued, promulgated or implemented, or compliance by any Lender or applicable Lending Installation or any LC Issuer with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency."
"Commitment means, for each Lender, the obligation of such Lender to make Loans to, and participate in Facility LCs issued upon the application of, the Borrower, in an amount not exceeding the amount set forth in Schedule1, as it may be modified (i)pursuant to Section2.7 or Section2.23, (ii)as a result of any assignment that has become effective pursuant to Section12.3(c) or (iii)otherwise from time to time pursuant to the terms hereof."
"Environmental Liability means any liability, contingent or otherwise (including any liability for damages, costs of remediation, fines, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a)violation of any Environmental Law, (b)the release, threatened release, generation, use, handling, transportation, storage or treatment of, or exposure to, any Hazardous Materials or (c)any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing."
"ERISA Event means (a)any reportable event, as defined in Section4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the30-day notice period is waived); (b)the failure with respect to any Plan to satisfy the minimum funding standard (as defined in Section412 of the Code or Section302 of ERISA), whether or not waived; (c)the filing pursuant to Section412(c) of the Code or Section302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d)the incurrence by the Borrower or any of its ERISA Affiliates of any liability under TitleIV of ERISA with respect to the termination of any Plan; (e)the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal of the Borrower or any of its ERISA Affiliates from any Plan or Multiemployer Plan; or (g)the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition upon the Borrower or any of its ERISA Affiliates of withdrawal liability under Section4201 of ERISA or a determination that a Multiemployer Plan is, or is expected to be, insolvent, within the meaning of TitleIV of ERISA."
"Eurocurrency Base Rate means, with respect to a Eurocurrency Advance for the relevant Interest Period, the greater of (a)zero percent (0.0%)and (b)the applicable interest settlement rate for deposits in Dollars administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate) appearing on the applicable Reuters Screen (or on any successor or substitute page on such screen) as of11:00 a.m. (London time) on the Quotation Date for such Interest Period, and having a maturity equal to such Interest Period; provided that, if the applicable Reuters Screen (or any successor or substitute page) is not publicly available for any reason, the applicable Eurocurrency Base Rate for the relevant Interest Period shall instead be the applicable interest settlement rate for deposits in Dollars administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate) as reported by any other generally recognized financial information service selected by the Administrative Agent in its reasonable discretion as of11:00 a.m. (London time) on the Quotation Date for such Interest Period, and having a maturity equal to such Interest Period; provided that, if no such interest settlement rate administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate) is publicly available, the applicable Eurocurrency Base Rate for the relevant Interest Period shall instead be the rate reasonably determined by the Administrative Agent to be the rate at which RBC or one of its Affiliate banks offers to place deposits in Dollars with first-class banks in the interbank market at approximately11:00 a.m. (London time) two (2)Business Days prior to the first day of such Interest Period, in the approximate amount of RBCs relevant Eurocurrency Loan and having a maturity equal to such Interest Period."
"Excluded Subsidiary means each of (i)any Regulated Insurance Company, (ii)any Subsidiary of any Regulated Insurance Company, (iii)any Subsidiary of the Borrower that has Consolidated Net Income and Consolidated Total Assets representing less than 10% of the Consolidated Net Income and Consolidated Total Assets of the Borrower and its Subsidiaries respectively, 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 income and assets reflected on such financial statements, (iv)any Domestic Subsidiary Holding Company, any Foreign Subsidiary and Subsidiary of a Foreign Subsidiary and (v)any Subsidiary that is not a Wholly Owned Subsidiary, provided, notwithstanding the foregoing, the Borrower may, in its sole discretion, designate any Subsidiary as a Guarantor even if it meets the foregoing criteria."
"Excluded Taxes means, in the case of each Lender or applicable Lending Installation, each LC Issuer, the Administrative Agent or any other recipient of any payment to be made by or on account of any obligation of the Borrower or any Guarantor under any Loan Document, (i)Taxes imposed on or measured by its overall net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (a)imposed on it by the respective jurisdiction (or any political subdivision thereof) under the laws of which such recipient is incorporated or is organized or in which its principal executive office is located or, in the case of a Lender, in which such Lenders applicable Lending Installation (or, if different, such Lenders applicable lending office as determined by a Governmental Authority imposing such a Tax) is located or (b)that are Other Connection Taxes, (ii)in the case of a Lender, any U.S.federal withholding Tax that is imposed on amounts payable to or for the account of such Lender pursuant to the laws in effect at the time such Lender acquires an interest in a Loan, Facility LC or Commitment or becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section2.20) or designates a new Lending Installation, except in each case to the extent that, pursuant to Section3.5(a), amounts with respect to such Taxes were payable either to such Lenders assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Installation, (iii)Taxes attributable to such recipients failure to comply with Section3.5(f), and (iv)any U.S.federal withholding Taxes imposed by FATCA."
"LC Obligations means, at any time, the sum of (i)the aggregate amount of all Facility LCs that remains available for drawing at such time plus (ii)the aggregate unpaid amount at such time of all Reimbursement Obligations. For all purposes of this Agreement, if on any date of determination a Facility LC has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the International Standby Practices"
"Lenders means the lending institutions listed on the signature pages of this Agreement, any other Person that becomes a Lender hereunder from time to time as contemplated hereby and their respective successors and permitted assigns (excluding, for the avoidance of doubt, any such Person that ceases to be a party hereto from time to time as contemplated hereby)."
"Loan Documents means this Agreement, the Facility LC Applications, the Guaranty, the Fee Letters, any Note or Notes executed by the Borrower in connection with this Agreement and payable to a Lender, and any other document or agreement, now or in the future, executed by the Borrower for the benefit of the Administrative Agent or any Lender in connection with this Agreement. For the avoidance of doubt, Loan Document shall not include documents or agreements evidencing Cash Management Services or Rate Management Obligations."
"Obligations means (a)all unpaid principal of and accrued and unpaid interest on the Loans, (b)all LC Obligations, (c)obligations to any Lender or Affiliate thereof in connection with Cash Management Services, (d)all Rate Management Obligations to any Lender or Affiliate thereof and (e)all accrued and unpaid fees, expenses, reimbursements, indemnities and other obligations of the Borrower to the Lenders or to any Lender, the Administrative Agent, any LC Issuer or any indemnified party, in each case under this clause(e), arising under the Loan Documents (including interest and fees accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding); provided, further, that Obligations shall exclude all Excluded Swap Obligations."
"Other Connection Taxes means, with respect to the Administrative Agent or any Lender or any LC Issuer, 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, Facility LC or Loan Document)."
"Rate Management Obligations means any and all obligations of the Borrower or any Subsidiary, 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 Rate Management Transactions, and (ii)any and all cancellations, buy backs, reversals, terminations or assignments of any Rate Management Transactions."
"Restricted Payment means any dividend or other distribution (whether in cash, securities or other Property) with respect to any equity interest in the Borrower or any Subsidiary, or any payment (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 of any such equity interests in the Borrower or any Subsidiary thereof or any option, warrant or other right to acquire any such equity interest in the Borrower or any Subsidiary thereof. It is understood that Indebtedness convertible into an equity interest of the Borrower or any Subsidiary is not an equity interest."
"Securitization Indebtedness means Indebtedness of an entity or Subsidiary formed for the primary purpose of purchasing or otherwise acquiring mortgage loans, receivables, insurance policies or other similar financial assets from the Borrower, one of the Subsidiaries of the Borrower and/or third parties, financing such purchases or otherwise facilitating the financing thereof (including by securitization) and conducting activities related thereto so long as (x)the principal and interest on such Indebtedness is not guaranteed by the Borrower or any of the other Subsidiaries of the Borrower and such Indebtedness is without recourse to the Borrower or any of the other Subsidiaries of the Borrower (other than: (i)for breaches of representations, warranties, covenants and related indemnities that are customary for securitization financings and similar transactions; or (ii)in connection with any mortgage insurance, other insurance products, or similar credit enhancements), (y)the Borrower and its applicable Subsidiaries have received all applicable regulatory approvals required for such transaction and (z)such transaction is permitted by 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."
"Statutory Statements means with respect to any Regulated Insurance Company for any fiscal year or quarter, the annual or quarterly financial statements, as applicable, of such Regulated Insurance Company as required to be filed with the Applicable Insurance Regulatory Authority of its jurisdiction of domicile and in accordance with the laws of such jurisdiction, together with all exhibits, schedules, certificates and actuarial opinions required to be filed or delivered therewith."
"(c) The entries maintained in the accounts maintained pursuant to paragraphs(a) and (b)above shall be prima facie evidence of the existence and amounts of the Obligations therein recorded; provided further, that if such accounts are inconsistent with the Register, the Register shall prevail; provided, however, that the failure of the Administrative Agent or any Lender to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Obligations in accordance with their terms."
"2.16. Notification of Advances, Interest Rates, Prepayments and Commitment Reductions. Promptly after receipt thereof, the Administrative Agent will notify each Lender of the contents of each Commitment reduction notice, Borrowing Notice, Conversion/Continuation Notice, and repayment notice received by it hereunder. Promptly after notice from the relevant LC Issuer, the Administrative Agent will notify each Lender of the contents of each request for issuance of a Facility LC hereunder. The Administrative Agent will notify the Borrower and each Lender of the interest rate applicable to each Eurocurrency Advance promptly upon determination of such interest rate and will give the Borrower and each Lender prompt notice of each change in the Alternate Base Rate."
"(f) Reimbursement by Borrower. The Borrower shall be irrevocably and unconditionally obligated to reimburse the relevant LC Issuer for any amounts paid by such LC Issuer upon any drawing under any Facility LC, without presentment, demand, protest or other formalities of any kind (other than the demand contemplated hereby); provided that neither the Borrower nor any Lender shall hereby be precluded from asserting any claim for direct (but not consequential) damages suffered by the Borrower or such Lender to the extent, but only to the extent, caused by (i)the bad faith, breach of contract, willful misconduct or gross negligence of such LC Issuer in determining whether a request presented under any Facility LC issued by it complied with the terms of such Facility LC or (ii)such LC Issuers failure to pay under any Facility LC issued by it after the presentation to it of a request strictly complying with the terms and conditions of such Facility LC. Such reimbursement shall be due on the date such LC Issuer makes demand to the Borrower therefor or, if such demand is made after11:00 a.m. (New York City time) on the date of demand or at any time on a day that is not a Business Day, then such"
"(g) Obligations Absolute. The Borrowers obligations under this Section2.19 shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment which the Borrower may have or have had against any LC Issuer, any Lender or any beneficiary of a Facility LC. The Borrower further agrees with the LC Issuers and the Lenders that the LC Issuers and the Lenders shall not be responsible for, and the Borrowers Reimbursement Obligation in respect of any Facility LC shall not be affected by, among other things, the validity or genuineness of documents or of any endorsements thereon, even if such documents should in fact prove to be in any or all respects invalid, fraudulent or forged, or any dispute between or among the Borrower, any of its Affiliates, the beneficiary of any Facility LC or any financing institution or other party to whom any Facility LC may be transferred or any claims or defenses whatsoever of the Borrower or of any of its Affiliates against the beneficiary of any Facility LC or any such transferee. Nothing in this Section2.19(g) is intended to limit the right of the Borrower to make a claim against any LC Issuer for damages as contemplated by the proviso to the first sentence of Section2.19(f)."
"proposed amendment, supplement, consent, waiver or other modification of this Agreement or any other Loan Document that requires the vote of each Lender or each Lender directly affected thereby that is approved by the Required Lenders or if any Lender becomes a Defaulting Lender or the subject of a Bail-In Action (or any case or other proceeding in which a Bail-In Action may occur) (any Lender so affected an Affected Lender), the Borrower may elect to replace such Affected Lender as a Lender party to this Agreement; provided that (i)no Event of Default shall have occurred and be continuing at the time the Borrower gives notice to the Administrative Agent and such Lender of its intent to replace such Lender and (ii)if the Borrower is requesting to replace such Lender pursuant to additional payments required to be paid to such Lender (or any of its Participants) under Section3.1, 3.2 or 3.5, any replacement Lender would not have required some or all of such payments under Sections 3.1, 3.2 or 3.5, as applicable, and provided further that, concurrently with such replacement, (i)another bank or other entity which is reasonably satisfactory to the Borrower and the Administrative Agent shall agree, as of such date, to purchase for cash at par the Advances and other Obligations due to the Affected Lender under this Agreement and the other Loan Documents pursuant to an assignment substantially in the form of ExhibitB and to become a Lender for all purposes under this Agreement and to assume all obligations of the Affected Lender to be terminated as of such date and to comply with the requirements of Section12.3 applicable to assignments and (ii)the Borrower shall pay to such Affected Lender in same day funds on the day of such replacement (A)all interest, fees and other amounts then accrued but unpaid to such Affected Lender by the Borrower hereunder to and including the date of termination, including without limitation payments due to such Affected Lender under Sections3.1, 3.2, 3.4 and3.5, and (B)an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section3.4 had the Loans of such Affected Lender been prepaid on such date rather than sold to the replacement Lender. If any Affected Lender fails to execute the documentation required to effectuate an assignment contemplated by the foregoing within one Business Day after receipt of such documentation, each Lender hereby authorizes and directs the Borrower to execute and deliver such documentation on behalf of such Affected Lender."
"2.21. Limitation of Interest. The provisions of this Section2.21 shall govern and control over every other provision of this Agreement or any other Loan Document which conflicts or is inconsistent with this Section2.21, even if such provision declares that it controls. As used in this Section2.21, the term interest includes the aggregate of all charges, fees, benefits or other compensation which constitute interest under applicable law; provided that, to the maximum extent permitted by applicable law, (a)any non-principal payment shall be characterized as an expense or as compensation for something other than the use, forbearance or detention of money and not as interest, and (b)all interest at any time contracted for, reserved, charged or received shall be amortized, prorated, allocated and spread, in equal parts during the full term of this Agreement. In no event shall the Borrower or any other Person be obligated to pay, or any Lender have any right or privilege to reserve, receive or retain, (a)any interest in excess of the maximum amount of nonusurious interest permitted under the applicable laws (if any) of the United States or of any applicable state, or (b)total interest in excess of the amount which such Lender could lawfully have contracted for, reserved, received, retained or charged had the interest been calculated for the full term of this Agreement at the Highest Lawful Rate. On each day, if any, that the interest rate (the Stated Rate) called for under this Agreement or any other Loan Document exceeds the Highest Lawful Rate, the rate at which interest shall accrue shall automatically be fixed by operation of this sentence at the Highest Lawful Rate for"
(iii) Certain Fees. (A)No Defaulting Lender shall be entitled to receive any commitment fee 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) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Section2.22 in respect of Facility LCs shall be applied to the satisfaction of the Defaulting Lenders obligation to fund participations in respect of LC Obligations (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."
"3.2. Changes in Capital Adequacy Regulations. If a Lender or any LC Issuer reasonably determines that the amount of capital or liquidity required or expected to be maintained by such Lender or such LC Issuer, any Lending Installation of such Lender or such LC Issuer, or any corporation or holding company controlling such Lender or such LC Issuer is increased as a result of (i)a Change in Law or (ii)any change on or after the date of this Agreement in the Risk-Based Capital Guidelines, then, within thirty (30)days after receipt by the Borrower of written demand by such Lender or such LC Issuer in accordance with Section3.6, the Borrower shall pay such Lender or such LC Issuer the amount necessary to compensate for any shortfall in the rate of return on the portion of such increased capital or liquidity which such Lender or such LC Issuer reasonably determines is attributable to this Agreement, its Outstanding Credit Exposure or its Commitment to make Loans and issue or participate in Facility LCs, as the case may be, hereunder (after taking into account such Lenders or such LC Issuers policies as to capital adequacy or liquidity), in each case that is attributable to such Change in Law or change in the Risk-Based Capital Guidelines, as applicable, as such amount is reasonably determined by such Lender or LC Issuer (which determination shall be made in good faith (and not on an arbitrary or capricious basis) and consistent with similarly situated customers of the applicable Lender or LC Issuer under agreements having provisions similar to this Section3.2 after consideration of such factors as such Lender or LC Issuer then reasonably determines to be relevant). Failure or delay on the part of such Lender or such LC Issuer to demand compensation pursuant to this Section3.2 shall not constitute a waiver of such Lenders or such LC Issuers right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender or any LC Issuer pursuant to this Section3.2 for any shortfall suffered more than270 days prior to the date that such Lender or such LC Issuer notifies the Borrower of the Change in Law or change in the Risk-Based Capital Guidelines giving rise to such shortfall and of such Lenders or such LC Issuers intention to claim compensation therefor in accordance herewith; provided further, that if the Change in Law or change in Risk-Based Capital Guidelines giving rise to such shortfall is retroactive, then the270-day period referred to above shall be extended to include the period of retroactive effect thereof."
"(a) Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law requires the deduction or withholding of any Tax from any such payment, then the applicable Loan Party shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax or Other Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section3.5) the applicable Lender or the Administrative Agent receives an amount equal to the sum it would have received had no such deduction or withholding been made."
"(e) As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section3.5, such Loan Party shall deliver to the Administrative Agent the original or a copy of a receipt issued, if any, by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent."
"(e) The Administrative Agent shall have received such documents and certificates relating to the organization, existence and good standing of each of the Loan Parties, the authorization of the transactions contemplated hereby and any other legal matters relating to each of the Loan Parties, the Loan Documents or the transactions contemplated hereby, all in form and substance satisfactory to the Administrative Agent and its counsel including:"
"(i) Each Loan Party shall have provided the documentation and other information to the Administrative Agent and each Lender as they reasonably determine are required by bank regulatory authorities under applicable know- your-customer and Anti-Money Laundering Laws, including the Patriot Act, at least five Business Days prior to the Effective Date."
"5.6. Taxes. The Borrower and its Subsidiaries have filed all U.S. federal and state income Tax returns and all other material Tax returns which are required to be filed by them and have paid all U.S. federal and state income Taxes and all other material Taxes due from the Borrower and its Subsidiaries, except (a)such Taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided in accordance with GAAP or SAP, as applicable and/or (b)where the failure to so file or pay would not reasonably be expected to have a Material Adverse Effect."
"5.10. Accuracy of Information. All written reports, financial statements, certificates and other written information (other than forecasts, projections, budgets, estimates and general market and industry data) (collectively, the Information) provided by or on behalf of the Borrower and the Guarantors to the Administrative Agent, any LC Issuer or any Lender in connection with the negotiations of this Agreement, are, as of the date such Information is provided and when taken as a whole with all other Information so provided, complete and correct in all material respects and when taken as a whole, did not and will not, when furnished, contain"
"any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not materially misleading; provided that with respect to projections, the Borrower represents only that the projections contained in such materials are based on good faith estimates and assumptions believed by the Borrower to be reasonable at the time made; it being understood and agreed that such projections as to future events are not to be viewed as facts and are subject to significant uncertainties and contingencies many of which are beyond the control of the Borrower and that actual results during the period or periods covered by any such projections may materially differ from the projected results."
"5.18. Solvency. As of the Effective Date and, upon the incurrence of any Loan or any Facility LC by any Loan Party on the Effective Date and on any date on which this representation and warranty is made, and after giving effect to the application of the proceeds of any such Loan or Facility LC, as applicable:"
"5.21. Insurance Licenses. Each Regulated Insurance Company holds all licenses (including licenses or certificates of authority from Applicable Insurance Regulatory Authorities), permits or authorizations necessary or otherwise required to transact insurance and reinsurance business (collectively, the Insurance Licenses) except any Insurance Licenses the failure of which to hold would not reasonably be expected to have a Material Adverse Effect. To the best of the Borrowers knowledge, there is (i)no Insurance License that is the subject of a proceeding for suspension, revocation or limitation or similar proceedings, (ii)no sustainable basis for such suspension, revocation or limitation and (iii)no such suspension, revocation or limitation threatened by any Applicable Insurance Regulatory Authority, that, in each instance under (i), (ii)and (iii)above and either individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect."
"(b) Within45days after the end of each of the first three quarters of each fiscal year of the Borrower, the consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such quarter and consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, duly certified (subject to the absence of footnotes and to year-end audit adjustments) by the chief financial officer or treasurer of the Borrower as having been prepared in accordance with GAAP and being fairly stated in all material respects."
"Notwithstanding the above, (i)if any report or other information required under this Section6.1 is due on a day that is not a Business Day, then such report or other information shall be required to be delivered on the first day after such day that is a Business Day, and (ii)documents required to be delivered pursuant to Section6.1(a), (b), (d),(e)or (f)may be delivered electronically by the Borrower filing such documents for public availability on the U.S.Securities and Exchange Commissions Electronic Data Gathering and Retrieval System (or any successor thereto) (EDGAR) or by the Borrower posting such documents on the"
"6.8. Maintenance of Properties. The Borrower will, and will cause each Subsidiary to, maintain all of its Property and assets in good condition, repair and working order (ordinary wear and tear excepted), and make all necessary and proper repairs, renewals and replacements so that its business carried on in connection therewith may be properly conducted at all times, except, in each case, to the extent the failure to do so would not reasonably be expected to result in a Material Adverse Effect."
"(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including earnouts), in each case, incurred or assumed in connection with any Permitted Acquisition, other Investments or the disposition of any business, assets or any Subsidiary not prohibited by this Agreement."
"(m) Investments by the Borrower or any Subsidiary (including any Regulated Insurance Subsidiary and any Subsidiary of such Regulated Insurance Subsidiary that is not itself a Regulated Insurance Subsidiary) in the Ordinary Course of Business and that is 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."
"(d) Deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations (other than for borrowed money or any such obligation imposed pursuant to Sections4.12(c) or430(k) of the Code or Sections303(k), 4068 or4219 of ERISA), surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the Ordinary Course of Business."
"(h) Liens securing Indebtedness incurred pursuant to Section6.10(g) to finance the acquisition of fixed or capital assets; provided that (i)such Liens shall be created within180days following the acquisition of such fixed or capital assets, (ii)the amount of Indebtedness secured thereby is not increased and (iii)such Liens do not at any time encumber any property other than the property financed by such Indebtedness (and the products and proceeds thereof) and other property acquired from the same Person or any Affiliate thereof (and the products and proceeds thereof) and financed by Indebtedness incurred pursuant to Section6.10(g)."
"(a) Required Guarantors. As promptly as possible but in any event within (i)forty-five (45)days (or such later date as may be agreed by the Administrative Agent in its sole discretion) after a Subsidiary that meets the requirements of the definition for a Guarantor hereunder is organized or acquired, or (ii)with respect to any other Subsidiary, within ten (10)Business Days after the date that the audited financial statements are required to be delivered pursuant to Section6.1(a) above for the period during which such Subsidiary becomes a Subsidiary that meets the requirements of the definition for a Guarantor hereunder, the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Subsidiary and shall cause each such Subsidiary that is not an Excluded Subsidiary to deliver to the Administrative Agent a joinder to the Guaranty (in the form contemplated thereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions thereof, such Guaranty joinder to be accompanied by appropriate resolutions, other corporate or legal entity documentation, in each case in form and substance reasonably satisfactory to the Administrative Agent and its counsel, and such legal opinions and other documentation as the Administrative Agent may reasonably request. Notwithstanding any provision of this Agreement to the contrary, no Excluded Subsidiary shall be required to become a Guarantor pursuant to this Section6.19 or otherwise pursuant to any Loan Document."
"6.26. Financial Strength Ratings. The Borrower shall maintain financial strength ratings from S&P and/or Moodys. With the consent of the Administrative Agent, a financial strength rating from S&P and/or Moodys (even if S&P and/or Moodys is providing the same) may be replaced with a financial strength rating from another nationally recognized statistical rating organization."
"7.14. Any one or more Insurances Licenses of the Borrower or any Subsidiary shall be suspended, limited or terminated or shall not be renewed, or any other action shall be taken by any Governmental Authority, and such suspension, limitation, termination, non-renewal or action, either individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect."
"(c) During the continuance of an Event of Default, the Administrative Agent may at any time or from time to time apply Cash Collateral to the payment of the Obligations under this Agreement and the other Loan Documents and any other amounts as shall from time to time have become due and payable by the Borrower to the Lenders or the LC Issuers under the Loan Documents, as provided in Section8.2."
"8.3. Amendments. Except in connection with an increase in the Aggregate Commitment under Section2.23 (which shall be governed by such Section), subject to the provisions of this Section8.3, the Required Lenders (or the Administrative Agent with the consent in writing of the Required Lenders) and the Borrower may enter into agreements supplemental hereto for the purpose of adding or modifying any provisions to this Agreement, the Guaranty or changing in any manner the rights of the Lenders or the Borrower hereunder or thereunder or waiving any Default or Event of Default hereunder; provided, however, that no such supplemental agreement shall:"
"9.4. Several Obligations; Benefits of this Agreement. The respective obligations of the Lenders hereunder are several and not joint and no Lender shall be the partner or agent of any other (except to the extent to which the Administrative Agent is authorized to act as such). The failure of any Lender to perform any of its obligations hereunder shall not relieve any other Lender from any of its obligations hereunder. This Agreement shall not be construed so as to confer any right or benefit upon any Person other than the parties to this Agreement and their respective successors and permitted assigns; provided, however, that the parties hereto expressly agree that the Arrangers shall enjoy the benefits of the provisions of Sections9.5, 9.8 and10.11 to the extent specifically set forth therein and shall have the right to enforce such provisions on its own behalf and in its own name to the same extent as if it were a party to this Agreement."
"(b) The Borrower hereby further agrees to indemnify and hold harmless the Administrative Agent, each LC Issuer, the Arrangers, each Lender, their respective affiliates, and each of their directors, officers and employees, agents and advisors (each, an Indemnitee) against all losses, claims, damages, penalties, judgments, liabilities and expenses (including, without limitation, reasonable attorneys fees, charges and disbursements and settlement costs (including, without limitation, all expenses of litigation or preparation therefor)) which any such Indemnitee may pay or incur arising out of or relating to this Agreement, the other Loan Documents, the transactions contemplated hereby, any actual or alleged presence or release of Hazardous Materials on or from any Property owned or operated by Borrower or any of its Subsidiaries, any environmental liability related in any way to Borrower or any of its Subsidiaries, or any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by Borrower or any of its Subsidiaries, or the direct or indirect application or proposed application of the proceeds of any Credit Extension hereunder; 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 non- appealable judgment to have resulted from (a)the willful misconduct, bad faith or gross negligence of such Indemnitee or any of its Related Indemnified Persons, (b)a dispute among the Indemnitees not arising from an act or omission of the Borrower or any of its Affiliates (other than a dispute involving a claim against an Indemnitee for its acts or omissions in its capacity as an arranger, bookrunner, agent or similar role in respect of the credit facilities evidenced by this Agreement, except, with respect to this clause (b), to the extent such acts or omissions are determined by a court of competent jurisdiction by final and non-appealable judgment to have constituted the willful misconduct, bad faith or gross negligence of such Indemnitee in such capacity) or (c)such Indemnitees or any of its Related Indemnified Persons material breach of the Loan Documents (as determined pursuant to a claim asserted by the Borrower, whether as a claim, counterclaim or otherwise). For purposes of this Section9.5(b), a Related Indemnified Person of an Indemnitee means (1)any controlled affiliate of such Indemnitee, (2)the respective directors, managers, officers and employees of such"
"9.8. Nonliability of Lenders. The relationship between the Borrower on the one hand and the Lenders, the LC Issuers and the Administrative Agent on the other hand shall be solely that of borrower and lender. Neither the Administrative Agent, any LC Issuer, the Arrangers nor any Lender shall have any fiduciary responsibilities to the Borrower under the Loan Documents. Neither the Administrative Agent, any LC Issuer, the Arrangers nor any Lender undertakes any responsibility to the Borrower to review or inform the Borrower of any matter in connection with any phase of the Borrowers business or operations. The Borrower agrees that none of the Administrative Agent, the LC Issuers, the Arrangers or any Lender shall have any liability to the Borrower (whether sounding in tort, contract or otherwise) for losses suffered by the Borrower in connection with, arising out of, or in any way related to, the transactions contemplated and the relationship established by the Loan Documents, or any act, omission or event occurring in connection therewith, unless it is determined in a final non-appealable judgment by a court of competent jurisdiction that such losses resulted from (a)the gross negligence, bad faith, willful misconduct of or by the party from which recovery is sought, (b)material breach of the Loan Documents (as determined pursuant to a claim asserted by the Borrower, whether as a claim, counterclaim or otherwise) of or by the party from which recovery is sought, or (c)a dispute among the Lenders not arising from an act or omission of the Borrower or any of its Affiliates (other than a dispute involving a claim against a Lender for its acts or omissions in its capacity as an arranger, bookrunner, agent or similar role in respect of the credit facilities evidenced by this Agreement, except, with respect to this clause (c), to the extent such acts or omissions are determined by a court of competent jurisdiction by final and non-appealable judgment to have constituted the willful misconduct, bad faith or gross negligence of such Lender in such capacity). Neither the Administrative Agent, any LC Issuer, the Arrangers nor any Lender shall have any liability with respect to, and the Borrower hereby waives, releases and agrees not to sue for, any special, indirect, consequential or punitive damages suffered by the Borrower in connection with, arising out of, or in any way related to the Loan Documents or the transactions contemplated thereby; provided that nothing contained in this sentence shall limit or otherwise relieve the Borrowers indemnity obligations under Section9.5(b). It is agreed that the Arrangers shall, in their capacity as such, have no duties or responsibilities under the Agreement or any other Loan Document. Each Lender acknowledges that it has not relied and will not rely on the Arrangers in deciding to enter into the Agreement or any other Loan Document or in taking or not taking any action."
"extent required (i)by applicable laws or regulations or (ii)by any subpoena or similar legal process, (d)to any other party to this Agreement, (e)in connection with the exercise of any remedies under this Agreement or any other Loan Document or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f)to the extent such Person agrees to be bound by the terms of this paragraph (or language substantially similar to this paragraph, or as otherwise agreed to by the Borrower) in accordance with the standard syndication process of the Arrangers or Lenders or customary market standards for dissemination of such type of information, to (i)any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii)any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (g)on a confidential basis to (i)any rating agency in connection with rating the Borrower or its Subsidiaries or the credit facilities provided for herein or (ii)the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the credit facilities provided for herein, (h)with the written 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 LC Issuer or any Lender on a non-confidential basis from a source other than the Borrower or any of its Subsidiaries that the Administrative Agent, such LC Issuer or such Lender, as applicable, reasonably believes is not prohibited from disclosing such information to such party in violation of a duty of confidentiality to the Borrower or any of its Subsidiaries. In the event of disclosure pursuant to clause(c)(ii) above, the applicable disclosing Person shall, (x)to the extent not prohibited by applicable law, rule or regulation, as promptly as practicable notify the Borrower in writing of such required disclosure, and (y)so furnish only that portion of the Information which such disclosing Person reasonably determines (which may be in reliance on the advice of legal counsel) it is legally required to disclose. For the purposes of this Section, Information means all information which is received from or on behalf of the Borrower relating to the Borrower, its Subsidiaries or Affiliates or their respective business, other than any such information that is available to the Administrative Agent, any LC Issuer or any Lender on a non-confidential basis prior to disclosure by the Borrower and other than information pertaining to this Agreement routinely provided by arrangers to data service providers, including league table providers, that serve the lending industry. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information but in no event less than a reasonable degree of care."
"EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN THE IMMEDIATELY PRECEDING PARAGRAPH FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NONPUBLIC INFORMATION CONCERNING THE BORROWER AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND EACH LENDER HEREBY CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS."
"9.13. Acknowledgement and Consent to Bail-In of EEA Financial Institutions. 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 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:"
"10.1. Appointment; Nature of Relationship. Royal Bank of Canada is hereby appointed by each of the Lenders and LC Issuers as its contractual representative (herein referred to as the Administrative Agent) hereunder and under each other Loan Document, and each of the Lenders and LC Issuers irrevocably authorizes the Administrative Agent to act as the contractual representative of such Lender and LC Issuer with the rights and duties expressly set forth herein and in the other Loan Documents. The Administrative Agent agrees to act as such contractual representative upon the express conditions contained in this ArticleX. Notwithstanding the use of the defined term Administrative Agent, it is expressly understood and agreed that the Administrative Agent shall not have any fiduciary responsibilities to any Lender or LC Issuer by reason of this Agreement or any other Loan Document and that the Administrative Agent is merely acting as the contractual representative of the Lenders and LC Issuers with only those duties as are expressly set forth in this Agreement and the other Loan Documents. In its capacity as the Lenders and LC Issuers contractual representative, the Administrative Agent (i)does not hereby assume any fiduciary duties to any of the Lenders or LC Issuers and (ii)is acting as an independent contractor, the rights and duties of which are limited to those expressly set forth in this Agreement and the other Loan Documents. Each of the Lenders and LC Issuer hereby agrees to assert no claim against the Administrative Agent on any agency theory or any other theory of liability for breach of fiduciary duty, all of which claims each Lender and LC Issuer hereby waives."
"10.3. General Immunity. Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be liable to the Borrower, the Lenders, LC Issuers or any Lender for any action taken or omitted to be taken by it or them hereunder or under any other Loan Document or in connection herewith or therewith except to the extent such action or inaction is determined in a final non-appealable judgment by a court of competent jurisdiction to have arisen from the gross negligence or willful misconduct of such Person."
"10.4. No Responsibility for Loans, Recitals, etc.Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be responsible for or have any duty to ascertain, inquire into, or verify (a)any statement, warranty or representation made in connection with any Loan Document or any borrowing hereunder; (b)the performance or observance of any of the covenants or agreements of any obligor under any Loan Document; (c)the satisfaction of any condition specified in ArticleIV, except receipt of items required to be delivered solely to the Administrative Agent; (d)the existence or possible existence of any Default or Event of Default; (e)the validity, enforceability, effectiveness, sufficiency or genuineness of any Loan Document or any other instrument or writing furnished in connection therewith; or (f)the financial condition of the Borrower or any guarantor of any of the Obligations or of any of the Borrowers or any such guarantors respective Subsidiaries."
"LC Issuer that has signed this Agreement 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 a Lender or LC Issuer unless the Administrative Agent shall have received notice from such Lender or LC Issuer prior to the applicable date specifying its objection thereto."
"10.8. Administrative Agents Reimbursement and Indemnification. The Lenders agree to reimburse and indemnify the Administrative Agent ratably in proportion to their respective Pro Rata Shares (determined without excluding the Defaulting Lenders) (i)for any amounts not reimbursed by the Borrower for which the Administrative Agent is entitled to reimbursement by the Borrower under the Loan Documents, (ii)for any other expenses incurred by the Administrative Agent on behalf of the Lenders, in connection with the preparation, execution, delivery, administration and enforcement of the Loan Documents (including, without limitation, for any expenses incurred by the Administrative Agent in connection with any dispute between the Administrative Agent and any Lender or between two or more of the Lenders) and (iii)for any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Administrative Agent in any way relating to or arising out of the Loan Documents or any other document delivered in connection therewith or the transactions contemplated thereby (including, without limitation, for any such amounts incurred by or asserted against the Administrative Agent in connection with any dispute between the Administrative Agent and any Lender or between two or more of the Lenders), or the enforcement of any of the terms of the Loan Documents or of any such other documents; provided that (i)no Lender shall be liable for any of the foregoing to the extent any of the foregoing is found in a final non- appealable judgment by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Administrative Agent and (ii)any indemnification required pursuant to Section3.5(d) shall, notwithstanding the provisions of this Section10.8, be paid by the relevant Lender in accordance with the provisions thereof. The obligations of the Lenders under this Section10.8 shall survive payment of the Obligations and termination of this Agreement."
"10.15. Syndication Agents and Documentation Agent. None of the Lenders identified in this Agreement as a co-agent, the Syndication Agents or the Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to such Lenders as it makes with respect to the Administrative Agent in Section10.11."
"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), the Borrower acknowledges and agrees that: (i)(A)the arranging and other services regarding this Agreement provided by the Lenders and LC Issuers are arms-length commercial transactions between the Borrower and its Affiliates, on the one hand, and the Lenders and LC Issuers, on the other hand, (B)the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C)the Borrower is capable of evaluating, and understands and accepts, the"
"Purchaser without any further consent or action by the Borrower, the Lenders or the Administrative Agent. In the case of an assignment covering all of the assigning Lenders rights and obligations under this Agreement, such Lender shall cease to be a Lender hereunder but shall continue to be entitled to the benefits of, and subject to, those provisions of this Agreement and the other Loan Documents which survive payment of the Obligations and termination of the applicable agreement. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section12.3 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section12.2. Upon the consummation of any assignment to a Purchaser pursuant to this Section12.3(c), the transferor Lender, the Administrative Agent and the Borrower shall, if the transferor Lender or the Purchaser desires that its Loans be evidenced by Notes, make appropriate arrangements so that new Notes or, as appropriate, replacement Notes are issued to such transferor Lender and new Notes or, as appropriate, replacement Notes, are issued to such Purchaser, in each case in principal amounts reflecting their respective Commitments, as adjusted pursuant to such assignment."
"(b) Electronic Communications. Notices and other communications to the Lenders 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 or as otherwise determined by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender pursuant to ArticleII if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Borrower may, in its respective discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it or as it otherwise determines; provided that such determination or approval may be limited to particular notices or communications."
"15.2. CONSENT TO JURISDICTION. EACH OF THE BORROWER, THE ADMINISTRATIVE AGENT, EACH LC ISSUER AND EACH LENDER HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT SITTING IN NEW YORK, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND EACH SUCH PERSON HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM."
"2\. Except as may be set forth under paragraph4 below, I have no knowledge of the existence of any condition or event which constitutes a Default or Event of Default at the end of the accounting period covered by the attached financial statements or as of the date of this Compliance Certificate, except as set forth below; and"
"5 | Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. ---|--- 6 | Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. ---|--- 7 | Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. ---|--- 8 | Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment (e.g. Revolving Commitment, etc.). ---|--- 9 | To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement. ---|--- * * *"
"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 or electronic communication as contemplated in Section13.1(b) of the Credit Agreement 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."
"This [Notice of Commitment Reduction][Prepayment Notice] is delivered to you pursuant to Section2.7 of that certain Credit Agreement, dated as of October16, 2017 (as amended, restated, modified or supplemented from time to time, the Credit Agreement), by and among RADIAN GROUP INC., a Delaware corporation (Borrower), the Lenders from time to time party thereto and ROYAL BANK OF CANADA, as a Lender, an LC Issuer and as Administrative Agent for the Lenders. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Agreement."
"Asset Disposition means the sale, transfer, license, lease or other disposition of any Property (including any disposition of Equity Interests and any sale-leaseback) by any Credit Party or any Restricted Subsidiary thereof (or the granting of any option or other right to do any of the foregoing), and any issuance of Equity Interests by any Restricted Subsidiary of the Borrower to any Person that is not a Credit Party or any Restricted Subsidiary thereof. The term Asset Disposition shall not include (a)the sale of inventory in the ordinary course of business, (b)the transfer of assets to the Borrower or any Subsidiary Guarantor pursuant to any other transaction permitted pursuant to Section9.4, (c)the write-off, discount, sale or other disposition of defaulted or past-due receivables and similar obligations in the ordinary course of business and not undertaken as part of an accounts receivable financing transaction, (d)the disposition of any Hedge Agreement, (e)dispositions of Investments in cash and Cash Equivalents, (f)the transfer by any Credit Party of its assets to any other Credit Party, (g)the transfer by any Non-Credit Party of its assets to any Credit Party (provided that in connection with any new transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith by the applicable Credit Party or Restricted Subsidiary at the time of such transfer) (h)the transfer by any Non-Credit Party of its assets to any other Non-Credit Party, (i)the abandonment of intellectual property determined by the Borrower and its Subsidiaries to no longer be used or useful in the conduct of their business and (j)any sale, transfer or other disposition of any Property having a fair market value of less than $2,000,000."
"Assignment and Assumption means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section12.9), and accepted by the Administrative Agent, in substantially the form attached as ExhibitG or any other form approved by the Administrative Agent."
"(iii) without duplication of any amounts added elsewhere in this definition, an amount equal to any returns in cash and Cash Equivalents (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received by the Borrower or any Restricted Subsidiary in respect of any Investments made pursuant to Section9.3(o) beginning on September30, 2014 and ending on such date of determination; minus"
"Available Amount Reference Period means, with respect to any date of determination, the period commencing on the first day of the period of four consecutive Fiscal Quarters most recently ended for which the Borrower has delivered financial statements and an Officers Compliance Certificate pursuant to Sections 8.1 and 8.2(a) and ending on such date of determination."
" | (f) | securities issued and fully guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, rated at least A by Moodys or S&P and having maturities of not more than 365 days from the date of acquisition; ---|---|--- "
"Class means, when used in reference to any Loan, whether such Loan is a Revolving Credit Loan, Swingline Loan, Initial Term Loan, Incremental Term Loan (of the same tranche), Extended Term Loans (of the same Extension Series), Extended Revolving Credit Loans (of the same Extension Series) and, when used in reference to any Commitment, whether such Commitment is a Revolving Credit Commitment, an Extended Revolving Credit Commitment (of the same Extension Series), a Term Loan Commitment or an Incremental Term Loan Commitment (of the same tranche)."
"(b) the net income (or loss) of any Person accrued prior to the date it becomes a Restricted Subsidiary of the Borrower or any of its Restricted Subsidiaries or is merged into or consolidated with the Borrower or any of its Restricted Subsidiaries or that Persons assets are acquired by the Borrower or any of its Restricted Subsidiaries, except to the extent included pursuant to the foregoing clause(a); and"
"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 Obligations that are accrued and payable and the termination of the Commitments), in whole or in part, (c)provide for the scheduled payment of dividends in cash or (d)are or become convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is 91 days after the Latest Maturity Date; provided that if such Equity Interests are issued pursuant to a plan, agreement or similar arrangement for the benefit of the Borrower or its Restricted Subsidiaries or by any such plan, agreement or similar arrangement to officers, directors, employees or consultants, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased by the Borrower or its Restricted Subsidiaries in order to satisfy applicable statutory or regulatory obligations or upon a change in control or termination of employment or service."
"Employee Benefit Plan means (a)any employee benefit plan within the meaning of Section3(3) of ERISA that is maintained for employees of any Credit Party or any ERISA Affiliate or (b)any Pension Plan or Multiemployer Plan that has at any time within the preceding sevenyears been maintained, funded or administered for the employees of any Credit Party or any current or former ERISA Affiliate."
"ERISA Event means (a)any reportable event, as defined in Section4043 of ERISA or the regulations issued thereunder, with respect to a Pension Plan (other than an event for which the 30-day notice period is waived); (b) the failure to satisfy the minimum funding standard (as defined in Section412 of the Code or Section302 of ERISA), whether or not waived, with respect to any Pension Plan; (c)the filing pursuant to Section412(c) of the Code or Section302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Pension Plan, the failure to make by its due date a required installment of a material amount under Section430(j) of the IRC with respect to any Pension Plan or the failure to make any required contribution of a material amount to a Multiemployer Plan; (d)the incurrence by the Borrower or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Pension Plan; (e)the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Pension Plan or Pension Plans or to appoint a trustee to administer any Pension Plan; (f)the incurrence by the Borrower or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal of the Borrower or any ERISA Affiliate from any Pension Plan or Multiemployer Plan; (g)the determination that a Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the IRC or Sections 303, 304 and 305 of ERISA or (h)the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition upon the Borrower or any ERISA Affiliate of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA."
"Eurodollar Reserve Percentage means, for any day, the percentage which is in effect for such day as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including any basic, supplemental or emergency reserves) in respect of eurocurrency liabilities or any similar category of liabilities for a member bank of the Federal Reserve System in New York City."
"Excluded Subsidiary means (a)any Domestic Subsidiary that is not a Wholly- Owned Subsidiary, (b)any Immaterial Domestic Subsidiary and any Receivables SPV, (c)any Foreign Subsidiary Holdco, (d)any Domestic Subsidiary that is owned directly or indirectly by a controlled foreign corporation within the meaning of Section957 of the Code, (e)any Foreign Subsidiary, (f)any Unrestricted Subsidiary and (g)any other Domestic Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent and the Borrower, the burden or cost of making such Subsidiary a Subsidiary Guarantor outweighs the benefits to the Lenders (including as a result of adverse tax consequences) of the attendant Guarantee."
"Excluded Swap Obligation means, with respect to any Credit Party, any Swap Obligation if, and to the extent that, all or a portion of the liability of such Credit Party for or the guarantee of such Credit Party of, or the grant by such Credit Party of a security interest to secure, such Swap Obligation (or any liability or 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 Credit Partys 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 liability for or the guarantee of such Credit Party or the grant of such security interest becomes 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 for the reasons identified in the immediately preceding sentence of this definition."
"Excluded Taxes means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a 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 Lender, 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 Lender, United States federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i)such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section5.12(b)) or (ii)such Lender changes its lending office, except in each case to the extent that, pursuant to Section5.11, amounts with respect to such"
"Extensions of Credit means, as to any Lender at any time, (a)an amount equal to the sum of (i)the aggregate principal amount of all Revolving Credit Loans made by such Lender then outstanding, (ii)such Lenders Revolving Credit Commitment Percentage of the L/C Obligations then outstanding, (iii)such Lenders Revolving Credit Commitment Percentage of the Swingline Loans then outstanding and (iv)the aggregate principal amount of the Term Loans made by such Lender then outstanding, or (b)the making of any Loan or participation in any Letter of Credit by such Lender, as the context requires."
"Foreign Lender means (a)if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b)if the 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 the Borrower is resident for tax purposes."
"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 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 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 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, (d)as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or (e)for the purpose of assuming in any other manner the obligee in respect of such Indebtedness of the payment or performance thereof or to protect such obligee against loss in respect thereof (whether in whole or in part); provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Guarantee shall be deemed to be the lesser of (i)an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee is made or (ii)the maximum amount for which the guarantor may be liable pursuant to the terms of the instrument evidencing such Guarantee, unless the amount of the primary obligation or the maximum amount for which such guarantor may be liable are not stated or determinable, in which case the amount of such Guarantee shall be the guarantors maximum reasonably anticipated liability in respect thereof as reasonably determined by the Borrower in good faith."
"Hedge Bank means any Person that, (a)at the time it enters into a Hedge Agreement with a Credit Party permitted under Article IX, is a Lender, an Affiliate of a Lender, the Administrative Agent or an Affiliate of the Administrative Agent or (b)at the time it (or its Affiliate) becomes a Lender (including on the Closing Date), is a party to a Hedge Agreement with a Credit Party, in each case in its capacity as a party to such Hedge Agreement."
"(b) if any Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day; provided that if any Interest Period with respect to a LIBOR Rate Loan would otherwise expire on a day that is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the immediately preceding Business Day;"
"Pension Plan means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or Section412 of the Code and which (a)is maintained, funded or administered for the employees of any Credit Party or any ERISA Affiliate or (b)has at any time within the preceding seven years been maintained, funded or administered for the employees of any Credit Party or any current or former ERISA Affiliates."
"Permitted Acquisition means any acquisition by the Borrower or any Restricted Subsidiary in the form of the acquisition of all or substantially all of the assets, business or a line of business, or at least a majority of the outstanding Equity Interests which have the ordinary voting power for the election of directors of the Board of Directors (whether through purchase, merger or otherwise), of any other Person if each such acquisition meets all of the following requirements:"
"(e) for an acquisition (other than the Specified Acquisition) the consideration for which is greater than $50,000,000, no later than threeBusiness Days (or such shorter period as shall be permitted by the Administrative Agent in its sole discretion) prior to the proposed closing date of such acquisition, the Borrower shall have delivered to the Administrative Agent an Officers Compliance Certificate for the most recent Fiscal Quarter end preceding such acquisition for which financial statements have been delivered pursuant to Section8.1(a) or"
"Related Assets means any assets that are customarily sold, transferred and/or pledged or in respect of which security interests are customarily granted in connection with accounts receivable securitizations or accounts receivables purchase or factoring transactions and any collections or proceeds of any of the foregoing (including guaranties, collateral security, lock- boxes, deposit accounts, records in respect of accounts receivable and collections in respect of accounts receivable)."
"Responsible Officer means, as to any Person, the chief executive officer, president, vice president, chief financial officer, secretary or assistant secretary, controller, treasurer or assistant treasurer of such Person or any other officer of such Person designated in writing by the Borrower and reasonably acceptable to the Administrative Agent. Any document delivered hereunder or under any other Loan Document that is signed by a Responsible Officer of a Person shall be conclusively presumed to have been authorized by all necessary corporate, limited liability company, partnership and/or other action on the part of such Person and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Person."
"Secured Parties means, collectively, the Administrative Agent, the Lenders, the Issuing Lenders, the Swingline Lender, the Hedge Banks that are parties to Secured Hedge Agreements, the Cash Management Banks that are parties to Secured Cash Management Agreements, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section11.5, any other holder from time to time of any of any Secured Obligations and, in each case, their respective successors and permitted assigns."
"Specified Transactions means (a)any Specified Disposition, (b)any Permitted Acquisition, (c)the Transactions, (d)any designation of a Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary and (e)any other event that by the terms of the Loan Documents requires pro forma compliance with a test or covenant hereunder or requires such test or covenant to be calculated on a Pro Forma Basis."
"Subsidiary means as to any Person, any corporation, partnership, limited liability company or other entity of which more than 50% of the outstanding Equity Interests having ordinary voting power to elect a majority of the Board of Directors or other managers of such corporation, partnership, limited liability company or other entity is at the time owned by (directly or indirectly) or the management is otherwise controlled by (directly or indirectly) such Person (irrespective of whether, at the time, Equity Interests of any other class or classes of such corporation, partnership, limited liability company or other entity shall have or might have voting power by reason of the happening of any contingency). Unless otherwise qualified, references to Subsidiary or Subsidiaries herein shall refer to those of the Borrower."
"Term Loan Note means a promissory note made by the Borrower in favor of a Term Loan Lender evidencing the portion of the Term Loans made by such Term Loan Lender, substantially in the form attached as ExhibitA-3, and any amendments, supplements and modifications thereto, any substitutes therefor, and any replacements, restatements, renewals or extension thereof, in whole or in part."
"Credit in particular or shall impose upon such Issuing Lender with respect to letters of credit generally or such Letter of Credit in particular any restriction or reserve or capital requirement (for which such Issuing Lender is not otherwise compensated) not in effect on the Closing Date, or any unreimbursed loss, cost or expense that was not applicable, in effect or known to such Issuing Lender as of the Closing Date and that such Issuing Lender in good faith deems material to it, or (C)the conditions set forth in Section6.2 are not satisfied. References herein to issue and derivations thereof with respect to Letters of Credit shall also include extensions or modifications of any outstanding Letters of Credit, unless the context otherwise requires."
"(a) Letter of Credit Commissions. Subject to Section5.15(a)(iii)(B), the Borrower shall pay to the Administrative Agent, for the account of the applicable Issuing Lender and the L/C Participants, a letter of credit commission with respect to each Letter of Credit in the amount equal to the daily amount available to be drawn under such Letter of Credit times the Applicable Margin with respect to Revolving Credit Loans that are LIBOR Rate Loans (determined on a per annum basis). Such commission shall be payable quarterly in arrears on the last Business Day of each calendar quarter, on the Revolving Credit Maturity Date and thereafter on demand of the Administrative Agent. The Administrative Agent shall, promptly following its receipt thereof, distribute to the applicable Issuing Lender and the L/C Participants all commissions received pursuant to this Section3.3(a) in accordance with their respective Revolving Credit Commitment Percentages."
"SECTION 4.1. Initial Term Loan. Subject to the terms and conditions of this Agreement and the other Loan Documents, and in reliance upon the representations and warranties set forth in this Agreement and the other Loan Documents, each Term Loan Lender severally agrees to make the Initial Term Loan to the Borrower in a principal amount equal to such Lenders Term Loan Commitment."
"(b) Default Rate. Subject to Section10.3, (i)immediately upon the occurrence and during the continuance of an Event of Default under Section10.1(a), (b), (i) or (j), or (ii)at the election of the Required Lenders, upon the occurrence and during the continuance of any other Event of Default, (A)all outstanding LIBOR Rate Loans shall bear interest at a rate per annum of 2% in excess of the rate (including the Applicable Margin) then applicable to LIBOR Rate Loans until the end of the applicable Interest Period, (B)all outstanding Base Rate Loans and other Obligations arising hereunder or under any other Loan Document shall bear interest at a rate per annum equal to 2% in excess of the rate (including the Applicable Margin) then applicable to Base Rate Loans or such other Obligations arising hereunder or under any other Loan Document and (C)all accrued and unpaid interest shall be due and payable on demand of the Administrative Agent. Interest shall continue to accrue on the Obligations after the filing by or against the Borrower of any petition seeking any relief in bankruptcy or under any Debtor Relief Law."
"(b) Payments by the 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, the Issuing Lenders or the Swingline Lender 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 Lenders, the Issuing Lenders or the Swingline Lender, 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 Lenders, the Issuing Lenders or the Swingline Lender, as the case maybe, severally agrees to repay to the Administrative"
"SECTION 5.9. Indemnity. Upon demand from time to time of any Lender and receipt by the Borrower of written notice thereof from the Administrative Agent, the Borrower shall indemnify each of the Lenders against any actual loss or expense (including any actual loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain a LIBOR Rate Loan or from fees payable to terminate the deposits from which such funds were obtained, but not any loss of anticipated profits) which may arise or be attributable to each Lenders obtaining, liquidating or employing deposits or other funds acquired to effect, fund or maintain any Loan (a)as a consequence of any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to make any payment when due of any amount due hereunder in connection with a LIBOR Rate Loan, (b)due to any failure of the Borrower (for a reason other than the failure of such Lender to make a Loan) to borrow, continue or convert on a date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation or (c)due to any payment, prepayment or conversion of any LIBOR Rate Loan on a date other than the last day of the Interest Period therefor or the day specified for payment in any notice required hereunder. A certificate of such Lender setting forth in reasonable detail the factual basis for, and calculations used in, determining such amount or amounts necessary to compensate such Lender shall be forwarded to the Borrower through the Administrative Agent and shall be presumed to be correct save for manifest error."
"(c) Certificates for Reimbursement. A certificate of a Lender, or an Issuing Lender or such other Recipient setting forth in reasonable detail the factual basis for, and calculations used in determining such amount or amounts necessary to compensate such Lender or such Issuing Lender, such other Recipient or any of their respective holding companies, as the case may be, as specified in paragraph(a) or (b)of this Section and delivered to the Borrower, shall be conclusive absent manifest error. The Borrower shall pay such Lender or such Issuing Lender or such other Recipient, as the case may be, the amount shown as due on any such certificate within 30days after receipt thereof."
"(f) Evidence of Payments. As soon as practicable after any payment of Taxes by any Credit Party to a Governmental Authority pursuant to this Section5.11, such Credit Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent."
"(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower 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 Sections 5.11(g)(ii)(A), 5.11(g)(ii)(B) and 5.11(g)(ii)(D) below) shall not be required if in the 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. If the Administrative Agent is a U.S. Person, it shall deliver to the Borrower Agent on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower Agent) an executed original of IRS Form W-9 certifying that the Administrative Agent is exempt from United States federal backup withholding tax."
"(4) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, or W-8BEN-E, as applicable (or any successor form), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the"
"(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower 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 Borrower or the Administrative Agent), executed originals of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in United States federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and"
"(b) Replacement of Lenders. If (x)any Lender requests compensation under Section5.10, or if the 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 Section5.11, and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section5.12(a), (y) any Lender is a Defaulting Lender or a Non- Consenting Lender or (z)any Lender refuses to make an Extension Election pursuant to Section5.16, 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, Section12.9), all of its interests, rights (other than its existing rights to payments pursuant to Section5.10 or Section5.11) and obligations under, and interests in, as applicable, its outstanding Loans and this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:"
"(x) such Incremental Revolving Credit Increase shall mature on the Revolving Credit Maturity Date, shall bear interest and be entitled to fees (other than upfront fees), in each case at the rate applicable to the Revolving Credit Loans, and shall be subject to the same terms and conditions as the Revolving Credit Loans;"
(y) the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section5.9 in connection with such reallocation as if such reallocation were a repayment); and
(H) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including a resolution duly adopted by the Board of Directors of each Credit Party authorizing such Incremental Loan and/or Incremental Term Loan Commitment) reasonably requested by the Administrative Agent in connection with any such transaction.
"(C) With respect to any Commitment Fee or letter of credit commission not required to be paid to any Defaulting Lender pursuant to clause(A) or (B)above, the Borrower shall (1)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 L/C Obligations or Swingline Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause(iv) below, (2)pay to each applicable Issuing Lender and Swingline Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Issuing Lenders or Swingline Lenders Fronting Exposure to such Defaulting Lender, and (3)not be required to pay the remaining amount of any such fee."
"(c) The Borrower shall provide each Extension Request at least 10 Business Days (or such shorter period as the Administrative Agent may agree) prior to the date on which Lenders under the applicable Existing Classor Existing Classes are requested to respond. Any Lender (an Extending Lender) wishing to have all or a portion of its Term Loans, Extended Term Loans, Incremental Term Loans, Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Classor Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an Extension Election) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Extended Term Loans, Incremental Term Loans, Revolving Credit Commitments, Incremental Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Classor Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Extended Term Loans, Incremental Term Loans, Revolving Credit Commitments, Incremental Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Classor Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Commitments, as applicable, requested pursuant to the Extension Request, Term Loans, Extended Term Loans, Incremental Term Loans, Revolving Credit Commitments, Incremental Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Classor Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, Incremental Revolving Credit Commitments or Extended Revolving Credit Commitments included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitments into Extended Revolving Credit Commitments, such Extended Revolving Credit Commitments shall be treated identically to all other Existing Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swing Line Loans under Section2.2 and Letters of Credit under Article III, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Letter of Credit Expiration Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be continued so long as the Swingline Lender and/or the applicable Issuing Lender, as applicable, has consented to such extensions in its sole discretion (it being understood that no consent of any other Lender shall be required in connection with any such extension)."
"(e) Notwithstanding anything to the contrary contained in this Agreement, (i)on any date on which any Existing Classis converted to extend the related scheduled maturity date(s) in accordance with clauses (a)and/or (b)above (an Extension Date), (A) in the case of the existing Term Loans of each Extending Lender, the aggregate principal amount of such existing Term Loans shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Term Loans so converted by such Lender on such date, and the Extended Term Loans shall be established as a separate Classof Term Loans (together with any other Extended Term Loans so established on such date) and (B)in the case of the Specified Existing Revolving Credit Commitments of each Extending Lender, the aggregate principal amount of such Specified Existing Revolving Credit Commitments shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Revolving Credit Commitments so converted by such Lender on such date, and such Extended Revolving Credit Commitments shall be established as a separate Classof revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date) and (B)if, on any Extension Date, any Loans of any Extending Lender are outstanding under the applicable Specified Revolving Credit Commitments, such Loans (and any related participations) shall be deemed to be allocated as Extended Revolving Credit Loans (and related participations) and Existing Revolving Credit Loans (and related participations) in the same proportion as such Extending Lenders Specified Existing Revolving Credit Commitments to Extended Revolving Credit Commitments."
"(ii) Pledged Collateral. The Administrative Agent shall have received (A)original stock certificates or other certificates evidencing the certificated Equity Interests pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof and (B)each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof."
"(f) PATRIOT Act, etc. The Borrower and each of the Subsidiary Guarantors shall have provided to the Administrative Agent and the Lenders the documentation and other information reasonably requested by the Administrative Agent at least ten Business Days prior to the Closing Date in order to comply with requirements of the PATRIOT Act, applicable know your customer and anti- money laundering rules and regulations."
"SECTION 6.2. Conditions to All Extensions of Credit (including any Extensions of Credit on the Closing Date). The obligations of the Lenders to make or participate in any Extensions of Credit (including any Extensions of Credit on the Closing Date) and/or any Issuing Lender to issue or extend any Letter of Credit are subject to the satisfaction of the following conditions precedent on the relevant borrowing, issuance or extension date:"
"To induce the Administrative Agent and Lenders to enter into this Agreement and to induce the Lenders to make Extensions of Credit, the Credit Parties hereby represent and warrant to the Administrative Agent and the Lenders both before and after giving effect to the Transactions and other transactions contemplated hereunder, which representations and warranties shall be deemed made on the Closing Date and as otherwise set forth in Section6.2, that:"
"SECTION 7.4. Compliance of Agreement, Loan Documents and Borrowing With Laws, Etc. The execution, delivery and performance by each Credit Party of the Loan Documents to which each such Person is a party, in accordance with their respective terms, the Extensions of Credit hereunder and the transactions contemplated hereby or thereby do not (a)require any Governmental Approval that have not been obtained or violate any Applicable Law relating to any Credit Party where the failure to obtain such Governmental Approval or such violation would reasonably be expected to have a Material Adverse Effect, (b)conflict with, result in a breach of or constitute a default under the articles of incorporation, bylaws or other organizational documents of any Credit Party, (c)conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which such Person is a party or by which any of its properties may be bound or any Governmental Approval relating to such Person, which could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, or (d)result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by such Person other than Permitted Liens."
"(a) The properties owned, leased or operated by each Credit Party and each Restricted Subsidiary thereof now or in the past do not contain, and, to its knowledge, have not previously contained, any Hazardous Materials in amounts or concentrations which constitute or constituted a violation by any Credit Party or any Restricted Subsidiary of applicable Environmental Laws or any a permit, approval, license or other Governmental Approval issued under any Environmental Law;"
"SECTION 7.18. Anti-Terrorism; Anti-Money Laundering; Anti-Corruption. No Credit Party nor any of its Restricted Subsidiaries or, to their knowledge, any of their Related Parties (i)is an enemy or an ally of the enemy within the meaning of Section2 of the Trading with the Enemy Act of the United States (50 U.S.C. App.  1 et seq.), (ii)is in violation of (A)the Trading with the Enemy Act, (B)any of the foreign assets control regulations of the United States Treasury Department (31CFR, Subtitle B, Chapter V) or any enabling legislation or executive order relating thereto or (C)the PATRIOT Act (collectively, the Anti-Terrorism Laws) or (iii)is a Sanctioned Person. No part of the proceeds of any Extension of Credit hereunder will be used by any Credit Party or any Subsidiary thereof unlawfully directly or indirectly to fund any operations in, finance any investments or activities in or make any payments to, a Sanctioned Person or a Sanctioned Country, or in any other manner that will result in any violation by any Credit Party or any Subsidiary thereof of any Anti-Terrorism Laws."
"Until all of the Obligations (other than contingent indemnification obligations not then due) have been paid and satisfied in full in cash, all Letters of Credit have been terminated or expired (or been Cash Collateralized) and the Commitments terminated, each Credit Party will, and will cause each of its Restricted Subsidiaries to:"
"(b) Quarterly Financial Statements. Within 45 days after the end of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending September30, 2017), an unaudited Consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of the close of such Fiscal Quarter and unaudited Consolidated statements of income, retained earnings and cash flows for such Fiscal Quarter and a report containing managements discussion and analysis of such financial statements for the Fiscal Quarter then ended and that portion of the Fiscal Year then ended, including the notes thereto, all in reasonable detail setting forth in comparative form the corresponding figures as of the end of and for the corresponding period in the preceding Fiscal Year and prepared by the Borrower in accordance with GAAP and, if applicable, containing disclosure of the effect on the financial position or results of operations of any change in the application of accounting principles and practices during the period, and certified by the chief financial officer of the Borrower to present fairly in all material respects the financial condition of the Borrower and its Restricted Subsidiaries on a Consolidated basis as of their respective dates and the results of operations of the Borrower and its Restricted Subsidiaries for the respective periods then ended, subject to normal year-end adjustments and the absence of footnotes."
"(c) the occurrence of any of the following, that alone or taken together with the occurrence of any event specified in this Section8.3(c) that have occurred, would reasonably be expected to result in a Material Adverse Effect: (i)all notices received by any Credit Party or any ERISA Affiliate of the PBGCs intent to terminate any Pension Plan or to have a trustee appointed to administer any Pension Plan, (ii)all notices received by any Credit Party or any ERISA Affiliate from a Multiemployer Plan sponsor concerning the imposition or amount of withdrawal liability pursuant to Section4202 of ERISA and (iii)the Borrower obtaining knowledge or reason to know that any Credit Party or any ERISA Affiliate has filed or intends to file a notice of intent to terminate any Pension Plan under a distress termination within the meaning of Section4041(c) of ERISA; and"
"(b) Maintain, in full force and effect in all material respects, each license, permit, certification, qualification, approval or franchise issued by any Governmental Authority (each a License) required for each of them to conduct their respective businesses as presently conducted, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect."
"SECTION 8.7. Accounting Methods and Financial Records. Maintain a system of accounting, and keep in all material respects, proper books of record and account in which true and correct entries in all material respects in conformity, in all material respects, with GAAP and Applicable Law are made of all material dealings and material transactions in relation to its business and activities."
"SECTION 8.12. Visits and Inspections. Permit representatives of the Administrative Agent, from time to time upon not less than five Business Days prior written notice and at such times during normal business hours, all at the expense of the Borrower, to visit and inspect its properties; inspect, audit and make extracts from its books, records and files, including management letters prepared by independent accountants; and discuss with its principal officers, and its independent accountants, its business, assets, liabilities, financial condition, results of operations and business prospects; provided that excluding any such visits and inspections during the continuation of an Event of Default, the Administrative Agent shall not exercise such rights more often than one time during any calendar year at the Borrowers expense; provided further that upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may do any of the foregoing during normal business hours upon not less than one Business Days prior written notice at the expense of the Borrower. The Borrower acknowledges that the Administrative Agent, after exercising its rights of inspection, may prepare and distribute to the Lenders certain reports pertaining to the Borrower and its Subsidiaries assets for internal use by the Administrative Agent and the Lenders; provided that if any such report contains MNPI, it shall not be distributed to a Public Lender. The Borrower and its Subsidiaries shall have no obligation to discuss or disclose to Administrative Agent, any Lender, or any of their officers, directors, employees or agents, materials protected by attorney-client privilege (including any attorney work product) and materials that the Credit Parties or any of their Restricted Subsidiaries may not disclose without violation of a material confidentiality obligation binding upon it. Upon the request of the Administrative Agent or the Required Lenders, participate in a meeting of the Administrative Agent and Lenders once during each Fiscal Year, which meeting will be held at the Borrowers corporate offices (or such other location (including telephonically) as may be agreed to by the Borrower and the Administrative Agent) at such time as may be agreed by the Borrower and the Administrative Agent."
"(b) Additional Foreign Subsidiaries. Notify the Administrative Agent promptly after any Person becomes a Material First Tier Foreign Subsidiary, and at the request of the Administrative Agent, promptly thereafter (and, in any event, within 45 days after such request, as such time period may be extended by the Administrative Agent in its sole discretion), cause (i)the applicable Credit Party to deliver to the Administrative Agent a Foreign Pledge Agreement pledging 65% of the total outstanding voting Equity Interests (and 100% of the non-voting Equity Interests) of any such new Material First Tier Foreign Subsidiary and a consent thereto executed by such new Material First Tier Foreign Subsidiary (including if applicable, original certificated Equity Interests (or the equivalent thereof pursuant to the Applicable Laws and practices of any relevant foreign jurisdiction) evidencing the Equity Interests of such new Material First Tier Foreign Subsidiary, together with an appropriate undated stock or other transfer power for each certificate duly executed in blank by the registered owner thereof), (ii)such Person to deliver to the Administrative Agent such opinions, documents and certificates referred to in Section6.1 as may be reasonably requested by the Administrative Agent, (iii)such Person to deliver to the Administrative Agent such updated Schedules to the Loan Documents as requested by the Administrative Agent with regard to such Person and (iv)such Person to deliver to the Administrative Agent such other documents as may be reasonably requested by the Administrative Agent, all in form, content and scope reasonably satisfactory to the Administrative Agent."
"(c) Merger Subsidiaries. Notwithstanding the foregoing, to the extent any new Restricted Subsidiary is created solely for the purpose of consummating a merger transaction pursuant to a Permitted Acquisition, and such new Restricted Subsidiary at no time holds any assets or liabilities other than any merger consideration contributed to it contemporaneously with the closing of such merger transaction, such new Restricted Subsidiary shall not be required to take the actions set forth in Section8.13(a) or (b), as applicable, until the consummation of such Permitted Acquisition (at which time, the surviving entity of the respective merger transaction shall be required to so comply with Section8.13(a) or (b), as applicable, within 10 Business Days after the consummation of such Permitted Acquisition, as such time period may be extended by the Administrative Agent in its sole discretion)."
"Until all of the Obligations (other than contingent, indemnification obligations not then due) have been paid and satisfied in full in cash, all Letters of Credit have been terminated or expired (or been Cash Collateralized) and the Commitments terminated, the Credit Parties will not, and will not permit any of their respective Restricted Subsidiaries to."
"(p) Indebtedness of any Credit Party or any Restricted Subsidiary thereof not otherwise permitted pursuant to this Section in an aggregate principal amount not to exceed the greater of (i) $50,000,000 and (ii) 15% of Consolidated EBITDA for 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), determined as of the date of Incurrence of such Indebtedness;"
"(r) unsecured Indebtedness of the Borrower and its Restricted Subsidiaries; provided that in the case of each Incurrence of such Indebtedness, (i)no Default or Event of Default shall have occurred and be continuing or would be caused by the Incurrence of such Indebtedness and (ii)the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with the financial covenants set forth in Section9.15 on a Pro Forma Basis immediately after giving effect to the issuance of any such Indebtedness; provided, further that the maturity of such unsecured Indebtedness shall be no earlier than a date that is 91 days after the Latest Maturity Date and such Indebtedness shall have no principal payments prior to a date that is 91 days after the Latest Maturity Date."
"(b) Liens in existence on the Closing Date and described on Schedule 9.2, and the replacement, renewal or extension thereof (including Liens Incurred, assumed or suffered to exist in connection with any refinancing, refunding, renewal or extension of Indebtedness pursuant to Section9.1(c) (solely to the extent that such Liens were in existence on the Closing Date and described on Schedule 9.2)); provided that the scope of any such Lien shall not be increased, or otherwise expanded, to cover any additional property or type of asset, as applicable, beyond that in existence on the Closing Date, except for products and proceeds of the foregoing;"
"(l) (i)Liens of a collecting bank arising in the ordinary course of business under Section4-210 of the Uniform Commercial Code in effect in the relevant jurisdiction or similar law of a foreign jurisdiction, (ii)Liens of any depositary bank or securities intermediary in connection with statutory, common law and contractual rights of set-off and recoupment with respect to any deposit account or securities account (or assets therein) of the Borrower or any Restricted Subsidiary thereof;"
"(vi) Investments made after the Closing Date by any Credit Party in any Non- Credit Party in an aggregate amount at any time outstanding not to exceed $35,000,000 (provided that any Investments in the form of loans or advances made by any Credit Party to any Non-Credit Party pursuant to this clause(vi) shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent and shall be pledged and delivered to the Administrative Agent pursuant to the Security Documents);"
"(c) any Subsidiary may dispose of all or substantially all of its assets (upon voluntary liquidation, dissolution, winding up or otherwise) to the Borrower or any Subsidiary Guarantor; provided that, with respect to any such disposition by any Non-Credit Party, the consideration for such disposition shall not exceed the fair value of such assets;"
"(d) (i)any Non-Credit Party that is a Pledged Foreign Subsidiary may dispose of all or substantially all of its assets (upon voluntary liquidation, dissolution, winding up or otherwise) to any other Pledged Foreign Subsidiary, (ii)any Non-Credit Party that is a Foreign Subsidiary (other than any Pledged Foreign Subsidiary) may dispose of all or substantially all of its assets (upon voluntary liquidation, dissolution, winding up or otherwise) to any other Non-Credit Party and (iii)any Non-Credit Party that is a Domestic Subsidiary may dispose of all or substantially all of its assets (upon voluntary liquidation, dissolution, winding up or otherwise) to any other Non- Credit Party that is a Domestic Subsidiary;"
"(b) (i) non-exclusive licenses and sublicenses of intellectual property rights in the ordinary course of business not interfering, individually or in the aggregate, in any material respect with the conduct of the business of the Borrower and its Subsidiaries, (ii)exclusive licenses and sublicenses of intellectual property rights and other Asset Dispositions with respect to intellectual property granted or made in the ordinary course of business consistent with past practice or (iii)exclusive licenses and sublicenses, assignments of intellectual property rights and other Asset Dispositions with respect to intellectual property granted or made in the exercise of the Borrowers reasonable business judgment, where such exclusive license, assignment or other Asset Disposition is not reasonably expected to have a Material Adverse Effect;"
"(f) Asset Dispositions not otherwise permitted pursuant to this Section; provided that (i)at the time of such Asset Disposition, no Event of Default shall exist or would result from such Asset Disposition and (ii)such Asset Disposition is made for Fair Market Value and the consideration received shall not be less than 75% in cash or Cash Equivalents; and"
"(d) the Borrower may make Restricted Payments on its Equity Interests to repurchase, redeem or otherwise acquire Equity Interests of the Borrower so long as all the following conditions are met as of the date of such repurchase: (A)the Consolidated Total Leverage Ratio (after giving effect to any Extension of Credit in connection with such repurchase) is less than the 3.00:1.00 on a Pro Forma Basis, (B)such repurchase does not and will not result in a violation of any of the regulations of the Federal Reserve Board, including Regulations T, U and"
"SECTION 9.7. Transactions With Affiliates. Directly or indirectly enter into any transaction, including any purchase, sale, lease or exchange of Property, the rendering of any service or the payment of any management, advisory or similar fees, with (a)any officer, director, holder of any Equity Interests in, or other Affiliate of, the Borrower or any of its Subsidiaries or (b)any Affiliate of any such officer, director or holder, except:"
"(vi) payment of customary fees and reasonable out of pocket costs to, and indemnities for the benefit of, directors, officers and employees of the Borrower and its Restricted Subsidiaries in the ordinary course of business to the extent attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries;"
"(b) Create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Credit Party or any Restricted Subsidiary thereof to (i)pay dividends or make any other distributions to any Credit Party or any Restricted Subsidiary on its Equity Interests or with respect to any other interest or participation in, or measured by, its profits, (ii)pay any Indebtedness or other obligation owed to any Credit Party or (iii)make loans or advances to any Credit Party, except in each case for such encumbrances or restrictions existing under or by reason of (A)this Agreement and the other Loan Documents and (B)Applicable Law."
"SECTION 9.14. Capital Expenditures. Permit the aggregate amount of all Capital Expenditures in any Fiscal Year to exceed an amount equal to (a) $60,000,000 plus (b)Capital Expenditures that when made did not exceed the then- applicable Available Amount. Notwithstanding the foregoing, any portion of any amount in clause (a)set forth above, if not expended in the Fiscal Year for which it is permitted above, may be carried over for expenditure in the next following Fiscal Year; provided that, if any such amount is so carried over, (x)it will be deemed used in the applicable subsequent Fiscal Year after the amount in clause (a)set forth above and (y)it may not be carried over to any subsequent Fiscal Year."
"(e) Default in Performance of Other Covenants and Conditions. Any Credit Party or any Restricted Subsidiary thereof shall default in the performance or observance of any term, covenant, condition or agreement contained in this Agreement (other than as specifically provided for in this Section) or any other Loan Document and such default shall continue for a period of 30 days after the earlier of (i)the Administrative Agents delivery of written notice thereof to the Borrower and (ii)a Responsible Officer of any Credit Party having obtained actual knowledge thereof."
"(a) Acceleration; Termination of Credit Facility. Terminate the Revolving Credit Commitment and declare the principal of and interest on the Loans and the Reimbursement Obligations at the time outstanding, and all other amounts owed to the Lenders and to the Administrative Agent under this Agreement or any of the other Loan Documents (including all L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented or shall be entitled to present the documents required thereunder) and all other Obligations, to be forthwith due and payable, whereupon the same shall immediately become due and payable without presentment, demand, protest or other notice of any kind, all of which are expressly waived by each Credit Party, anything in this Agreement or the other Loan Documents to the contrary notwithstanding, and terminate the Credit Facility and any right of the Borrower to request borrowings or Letters of Credit thereunder; provided that upon the occurrence of an Event of Default specified in Section10.1(i) or (j)with respect to the Borrower, the Credit Facility shall be automatically terminated and all Obligations shall automatically become due and payable without presentment, demand, protest or other notice of any kind, all of which are expressly waived by each Credit Party, anything in this Agreement or in any other Loan Document to the contrary notwithstanding."
"Fourth, to payment of that portion of the Secured Obligations constituting unpaid principal of the Loans, Reimbursement Obligations and payment obligations then owing under Secured Hedge Agreements and Secured Cash Management Agreements, ratably among the Lenders, the Issuing Lenders, the Hedge Banks and the Cash Management Banks in proportion to the respective amounts described in this clause Fourth payable to them;"
"SECTION 10.7. Exclusion of Immaterial Domestic Subsidiaries and Immaterial Foreign Subsidiaries. Solely for the purpose of determining whether a Default or an Event of Default has occurred under Section10.1(i) or (j), any reference in any such clause to any Restricted Subsidiary or Credit Party shall be deemed not to include any Immaterial Domestic Subsidiary or any Immaterial Foreign Subsidiary affected by any event or circumstances referred to in any such clause unless the Consolidated assets (valued at the greater of book value or Fair Market Value) of such Immaterial Domestic Subsidiary or Immaterial Foreign Subsidiary, as applicable, together with the Consolidated assets of all other Immaterial Domestic Subsidiaries and Immaterial Foreign Subsidiaries affected by such event or circumstance referred to in such clause, shall exceed $10,000,000."
"(a) Each of the Lenders and each Issuing Lender 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 or thereof, together with such actions and powers as are reasonably incidental thereto. Except for the rights granted to any Credit Party under Sections 11.6 and 11.9 hereof, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Lenders, and neither the Borrower nor any Subsidiary thereof shall have rights as a third-party beneficiary of any of such provisions. It is understood and agreed that the use of the term agent herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties."
"(ii) 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 any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and"
"VI or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or (vi)the utilization of any Issuing Lenders L/C Commitment (it being understood and agreed that each Issuing Lender shall monitor compliance with its own L/C Commitment without any further action by the Administrative Agent)."
"(a) The Administrative Agent may at any time give notice of its resignation to the Lenders, the Issuing Lenders and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with the consent of the Borrower (such consent not to be unreasonably withheld or delayed), 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 30 days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the Resignation Effective Date), then the retiring Administrative Agent may (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date."
"SECTION 11.7. Non-Reliance on Administrative Agent and Other Lenders. Each Lender and each Issuing Lender 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 Lender 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."
"(a) Governing Law. This Agreement and the other Loan Documents and any claim, 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."
"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 paragraph(d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason 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 (including all or a portion of its Revolving Credit Commitment and the Loans at the time owing to it); provided that, in each case with respect to any Credit Facility, any such assignment shall be subject to the following conditions:"
"(B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of (i)the Revolving Credit Facility or any unfunded Term Loan Commitments if such assignment is to a Person that is not a Lender with a Revolving Credit Commitment or a Term Loan Commitment, as applicable, an Affiliate of such Lender or an Approved Fund with respect to such Lender or (ii)the Term Loans to a Person who is not a Lender, an Affiliate of a Lender or an Approved Fund; and"
"(vii) Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested, but not funded by, the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (A)pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, the Issuing Lenders, the Swingline Lender and each other Lender hereunder (and interest accrued thereon), and (B)acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swingline Loans in accordance with its Revolving Credit Commitment Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under Applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs."
"(d) Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person, a Defaulting Lender or the Borrower or any of the Borrowers Subsidiaries or Affiliates) (each, a Participant) in all or a portion of such Lenders rights and/or obligations under this Agreement (including all or a portion of its Commitment and/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)the Borrower, the Administrative Agent, the Issuing Lender, the Swingline Lender and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lenders rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section12.3(c) with respect to any payments made by such Lender to its Participant(s)."
"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 or modification described in Section12.2(b), (c), (d) or (e)that directly and adversely affects such Participant and could not be effected by a vote of the Required Lenders. The Borrower agrees that each Participant shall be entitled to the benefits of Sections5.9, 5.10 and 5.11 (subject to the requirements and limitations therein, including the requirements under Section5.11(g) (it being understood that the documentation required under Section5.11(g) 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 paragraph(b) of this Section; provided that such Participant (A)agrees to be subject to the provisions of Section5.12 as if it were an assignee under paragraph(b) of this Section (without duplication of any benefits that would otherwise be owed to the Lender with respect to the Loans subject to such participation); and (B)shall not be entitled to receive any greater payment under Sections5.10 or 5.11, with respect to any participation, than its participating Lender would have been entitled to receive unless the participation was made with the Borrowers prior written consent. Each Lender that sells a participation agrees, at the Borrowers request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section5.12(b) with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section12.4 as though it were a Lender; provided that such Participant agrees to be subject to Section5.6 as though it were a Lender."
"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."
"(e) Notwithstanding anything to the contrary contained in this Section12.9 or any other provision of this Agreement, so long as no Default or Event of Default has occurred and is continuing or would result therefrom, each Lender shall have the right at any time to sell, assign or transfer all or a portion of its Term Loan Commitment or Term Loans owing to it to Borrower on a non-pro rata basis (provided, however, that each assignment shall be of a uniform, and not varying, percentage of all rights and obligations under and in respect of any applicable Term Loan and any related Term Loan Commitments), subject to the following limitations:"
"(a) Counterparts; Integration; Effectiveness. This Agreement 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. This Agreement and the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent, the Issuing Lender, the Swingline Lender and/or the Arranger, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section6.1, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement in electronic (i.e., pdf or tif) format shall be effective as delivery of a manually executed counterpart of this Agreement."
"(b) Each Credit Party acknowledges and agrees that each Lender, the Arrangers and any Affiliate thereof may lend money to, invest in, and generally engage in any kind of business with, any of the Borrower, the Parent, any Affiliate thereof or any other person or entity that may do business with or own securities of any of the foregoing, all as if such Lender, Arranger or Affiliate thereof were not a Lender or Arranger or an Affiliate thereof (or an agent or any other person with any similar role under the Credit Facility) and without any duty to account therefor to any other Lender, the Arrangers, the Parent, the Borrower or any Affiliate of the foregoing.Each Lender, the Arrangers and any Affiliate thereof may accept fees and other consideration from the Parent, the Borrower or any Affiliate thereof for services in connection with this Agreement, the Credit Facility or otherwise without having to account for the same to any other Lender, the Arrangers, the Parent, the Borrower or any Affiliate of the foregoing."
"Reference is made to (i)the Indenture, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the Notes Indenture), among the Issuers, UMB Bank, National Association, as trustee (together with its successors and assigns in such capacity, the Notes Trustee), and the subsidiary guarantors party thereto, and (ii)the Second Lien Intercreditor Agreement, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the Second Lien Intercreditor Agreement), by and among Wilmington Trust, National Association, as Credit Agreement Agent (as defined therein), UMB Bank, National Association, as Initial Other First Priority Lien Obligations Agent (as defined therein), UMB Bank, National Association, as Trustee (as defined therein), and the other parties party thereto."
"The Subsidiary Parties are willing to execute and deliver this Agreement in accordance with the Plan of Reorganization and pursuant to such Plan of Reorganization the holders of the Second Lien Notes have agreed to hold the Second Lien Notes. The Subsidiary Parties are willing to execute and deliver this Agreement in order to induce the holders of any Other Second Lien Obligations to make extensions of credit under the applicable Other Second Lien Agreements, as applicable. Accordingly, the parties hereto agree as follows:"
"Copyrights means all of the following now owned or hereafter acquired by any Pledgor (or, as required in the context of the definition of Copyright License, any third party licensor):(a)all 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 (b)all registrations and applications for registration of any such Copyright in the United States or any other country, including registrations, supplemental registrations and pending applications for registration in the United States Copyright Office, including those listed onScheduleIV."
"First Lien Termination Date means, subject to Section5.7 of the Second Lien Intercreditor Agreement, the date on which the Discharge of Senior Lender Claims occurs;providedthat if, at any time after the First Lien Termination Date, the Discharge of Senior Lender Claims is deemed not to have occurred pursuant to Section5.7 of the Second Lien Intercreditor Agreement, the First Lien Termination Date shall automatically be deemed not to have occurred for all purposes of this Agreement (other than with respect to any actions taken prior to the date of incurrence and designation of any new Senior Lender Claims as a result of the occurrence of such first Discharge of Senior Lender Claims)."
"Gaming Laws means all applicable constitutions, treaties, laws, rates, regulations and orders and statutes pursuant to which any Gaming Authority possesses regulatory, licensing or permit authority over gaming, gambling or casino activities and all rules, rulings, orders, ordinances, regulations of any Gaming Authority applicable to the gambling, casino or gaming business or activities of any Issuer or any of its subsidiaries in any jurisdiction, as in effect from time to time, including the policies, interpretations and administration thereof by the Gaming Authorities."
"General Intangibles means all General Intangibles as defined in the New York UCC, including all choses in action and causes of action and all other intangible personal property of any Pledgor of every kind and nature (other than Accounts) now owned or hereafter acquired by any Pledgor, including corporate or other business records, indemnification claims, contract rights (including rights under leases (including the Master Lease to the extent a Grantor is a party thereto), whether entered into as lessor or lessee, Swap Agreements and other agreements), Intellectual Property, goodwill, registrations, franchises, tax refund claims and any letter of credit, guarantee, claim, security interest or other security held by or granted to any Pledgor to secure payment by an Account Debtor of any of the Accounts."
"Notes Obligations means (a)the due and punctual payment by the Issuers of (i)the unpaid principal of and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable as a claim in such proceeding) on indebtedness under the Second Lien Notes and"
"Pledgor means (i)with respect to the Notes Obligations, the Issuer and each Subsidiary Party and (ii)with respect to any other Series of Other Second Lien Obligations, the Issuers and each Subsidiary Party, excluding any of the foregoing if such Person or Persons are not intended to provide collateral with respect to such Series pursuant to the terms of the Other Second Lien Agreement governing such Series."
"Security Documents has the meaning assigned to such term in the Notes Indenture and any analogous term in any Other Second Lien Agreement (but, with respect to the Secured Obligations of any Series, the term Security Documents shall not include any document which by its terms is solely for the benefit of the holders of one or more other Series of Secured Obligations and not such Series of Secured Obligations)."
"Trademark License means any written agreement, now or hereafter in effect, granting to any Pledgor any right to use any Trademark, now or hereafter owned by any third party, and all rights of any Pledgor under any such agreement (including any such rights that such Pledgor has the right to license)."
"Trademarks means all of the following now owned or hereafter acquired by any Pledgor (or, as required in the context of the definition of Trademark License, any third party licensor): (a) all trademarks, service marks, corporate names, company names, business names, trade styles, fictitious business names, trade dress, logos, and other source or business identifiers, designs and General Intangibles of like nature, now existing or hereafter adopted or acquired, all registrations thereof (if any), and all registration and recording applications filed in connection therewith, including registrations and registration applications in the United States Patent and Trademark Office or any similar offices in any State of the United States or any other country or any political subdivision thereof, and all renewals thereof, including those listed on Schedule IV and (b)all goodwill associated therewith or symbolized thereby."
"SECTION 2.01. Pledge. As security for the payment or performance, as the case may be, in full of the Secured Obligations, each Pledgor hereby pledges to the Agent, for the benefit of the Secured Parties, and hereby grants to the Agent, for the benefit of the Secured Parties, a security interest in all of such Pledgors right, title and interest in, to and under the following:"
"In addition, in the event that Rule 3-10 (Rule 3-10) or Rule 3-16 (Rule 3-16) of Regulation S-X under the Securities Act of 1933, as amended, as amended, modified or interpreted by the Securities Exchange Commission (SEC), would require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other Governmental Authority) of separate financial statements of any Issuer or any Subsidiary of an Issuer due to the fact that such Persons Equity Interests secure any Series of Secured Obligations affected thereby then the Equity Interests of such Person (the Regulation S-X Excluded Collateral) will automatically be deemed not to be part of the Collateral securing such Series of Secured Obligations affected thereby, but only to the extent necessary to not be subject to such requirement and only for so long as required to not be subject to such requirement. In such event, this Agreement may be amended or modified, without the consent of any Secured Party, to the extent necessary to evidence the release of the Lien on the Regulation S-X Excluded Collateral in favor of the Agent with respect only to the relevant Series of Secured Obligations. In the event that Rule 3-10 or Rule 3-16 is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) any Regulation S-X Excluded Collateral to secure the Secured Obligations in excess of the amount then pledged without the filing with the SEC (or any other Governmental Authority) of separate financial statements of such Person, then the Equity Interests of such Person will automatically be deemed to be a part of the Collateral for the relevant Series of Secured Obligations. In the event that Rule 3-10 or Rule 3-16 is amended, modified or interpreted by the SEC to prohibit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would prohibit) any Regulation S-X Excluded Collateral that is then securing the Secured Obligations in excess of the amount then pledged without the filing with the SEC (or any other Governmental Authority) of separate financial statements of such Person, then the Equity Interests of such Person will automatically be deemed to be excluded from the Collateral for the relevant Series of Secured Obligations. To the extent any proceeds of any collection or sale of Equity Interests deemed by this paragraph to no longer constitute part of the Collateral for the relevant Series of Secured Obligations are to be applied by the Agent in accordance with Section4.02 hereof, such proceeds shall, notwithstanding the terms of Section4.02 and the Second Lien Intercreditor Agreement, not be applied to the payment of such Series of Secured Obligations."
"Agreement and a financing statement naming the Agent as the secured party and covering the Pledged Collateral to which such Pledged Securities relate is filed in the appropriate filing office pursuant to Section3.02(b), the Agent will obtain, for the benefit of the Secured Parties, a legal, valid and perfected lien upon and security interest in such Pledged Securities under the applicable Uniform Commercial Code, subject only to Permitted Liens, as security for the payment and performance of the Secured Obligations to the extent such perfection is governed by the applicable Uniform Commercial Code; and"
"(b) Each interest in any limited liability company or limited partnership Controlled by a Pledgor, pledged hereunder and not represented by a certificate shall not be a security within the meaning of Article 8 of the New York UCC and shall not be governed by Article8 of the New York UCC (or other applicable Uniform Commercial Code in effect in another jurisdiction), and the Pledgors shall at no time elect to treat any such interest as a security within the meaning of Article8 of the New York UCC or issue any certificate representing such interest, unless the applicable Pledgor promptly provides prior notification to the Agent of such election and promptly delivers any such certificate to the First Lien Agent (or if the Termination Date has occurred, the Agent) pursuant to the terms hereof."
"(b) 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 dividends, interest, principal or other distributions that such Pledgor is authorized to receive pursuant to paragraph(a)(iii) of this Section2.06 shall cease, and all such rights shall thereupon become vested, for the benefit of the Secured Parties, in the First Lien Agent (or, if the First Lien Termination Date has occurred, the Agent), which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions. All dividends, interest, principal or other distributions received by any Pledgor contrary to the provisions of this Section2.06 shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held for the benefit of the First Lien Agent (or, if the First Lien Termination Date has occurred, the Agent), for the benefit of the Secured Parties, and shall be promptly delivered to the First Lien Agent (or, if the First Lien Termination Date has occurred, the Agent), for the benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the First Lien Agent (or, if the First Lien Termination Date has occurred, the Agent)). Any and all money and other property paid over to or received by the Agent pursuant to the provisions of this paragraph(b) shall be retained by the Agent in an account to be established by the Agent upon receipt of such money or other property and shall be applied in accordance with the provisions of Section4.02. After all Events of Default have been cured or waived and the Company has delivered to the Agent a certificate to that effect, the Agent shall promptly repay to each Pledgor (without interest) all dividends, interest, principal or other distributions that such Pledgor would otherwise be permitted to retain pursuant to the terms of paragraph(a)(iii) of this Section2.06 and that remain in such account."
"(d) Any notice given by the Agent to the Pledgors suspending their rights under paragraph(a) of this Section2.06 (i)may be given by telephone if promptly confirmed in writing, (ii)may be given to one or more of the Pledgors at the same or different times and (iii)may suspend the rights of the Pledgors under paragraph(a)(i) or paragraph(a)(iii) in part without suspending all such rights (as specified by the Agent in its sole and absolute discretion) and without waiving or otherwise affecting the Agents rights to give additional notices from time to time suspending other rights so long as an Event of Default has occurred and is continuing."
"(a) As security for the payment or performance, as the case may be, in full of the Secured Obligations when due, each Pledgor hereby pledges to the Agent, for the ratable benefit of the Secured Parties, and hereby grants to the Agent, for the ratable benefit of the Secured Parties, a security interest (the Security Interest) in all right, title and interest in or to any and all assets and properties now owned or at any time hereafter acquired by such Pledgor or in which such Pledgor now has or at any time in the future may acquire any right, title or interest, including the following (collectively, the Article9 Collateral):"
"(a) Each Pledgor has good and valid rights in and/or title to the Article9 Collateral with respect to which it has purported to grant a Security Interest hereunder, except, with respect to all Article 9 Collateral other than Pledged Mortgaged Vessels, where the failure to have such rights and title would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and has full organizational power and authority to grant to the Agent the Security Interest in such Article9 Collateral pursuant hereto and to execute, deliver and perform its obligations in accordance with the terms of this Agreement, without the consent or approval of any other Person as of the date hereof other than (i)such consent or approval the failure of which to be obtained or made would not reasonably be expected to have a Material Adverse Effect and (ii)any consent or approval that has been obtained and is in full force and effect or has otherwise been disclosed herein or in the Notes Indenture and the schedules thereto or any offering circular related thereto, or in the Senior Lender Documents and the schedules thereto, or after the termination of the Notes Indenture, Senior Lender Documents, and the Second Lien Intercreditor Agreement, in the Other Second Lien Agreements."
required in connection with the execution and delivery of this Agreement and the granting of the Security Interest and the filing of any financing statements (including fixture filings) or other documents in connection herewith or therewith. Each Pledgor agrees that it will use its commercially reasonable efforts to take such action as shall be necessary in order that all representations and warranties hereunder shall be true and correct with respect to such Collateral within 90 days after the date it has been notified by the Agent of the specific identification of such Collateral.
"Without limiting the generality of the foregoing, each Pledgor hereby authorizes the Agent, with ten (10)Business Days prior written notice thereof to the Pledgors, to supplement this Agreement by supplementing Schedule IV or adding additional schedules hereto to specifically identify any asset or item that may constitute registered Copyrights (and United States Copyrights for which registration applications are pending), issued Patents (and United States Patents for which applications are pending), registered Trademarks (and United States Trademarks for which registration applications are pending); provided that any Pledgor shall have the right, exercisable within 90 days after it has been notified by the Agent of the specific identification of such Collateral, to advise the Agent in writing of any inaccuracy of the representations and warranties made by such Pledgor hereunder with respect to such Collateral. Each Pledgor agrees that it will use its commercially reasonable efforts to take such action as shall be necessary in order that all representations and warranties hereunder shall be true and correct with respect to such Collateral within 90 days after the date it has been notified by the Agent of the specific identification of such Collateral."
"(d) Subject to the confidentiality restrictions set forth in the Notes Indenture or any Other Second Lien Agreement, following the First Lien Termination Date, and subject to the Second Lien Intercreditor Agreement, after the occurrence of an Event of Default and during the continuance thereof, and upon five (5)Business Days prior written notice, the Agent shall have the right to verify under reasonable procedures the validity, amount, quality, quantity, value, condition and status of, or any other matter relating to, the Article9 Collateral, including, in the case of Accounts or Article9 Collateral in the possession of any third person, by contacting Account Debtors or the third person possessing such Article9 Collateral for the purpose of making such a verification. The Agent shall have the right to share any information it gains from such inspection or verification with any Secured Party."
"(f) Each Pledgor (rather than the Agent or any other 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 Agent and the other Secured Parties from and against any and all liability for such performance."
"(a) Instruments and Tangible Chattel Paper. If any Pledgor shall at any time own or acquire any Instruments or Tangible Chattel Paper evidencing an amount in excess of $10,000,000 individually, such Pledgor shall promptly endorse, assign and deliver the same to the First Lien Agent (or, if the First Lien Termination Date has occurred, the Agent), accompanied by such instruments of transfer or assignment duly executed in blank as the First Lien Agent (or, if the First Lien Termination Date has occurred, the Agent) may from time to time reasonably request; provided that the aggregate amount of Instruments and/or Chattel Paper that are not endorsed, assigned and delivered to the Agent shall not exceed $30,000,000 in the aggregate."
"(c) In the exercise of its reasonable business judgment, each Pledgor will use commercially reasonable efforts to, and will use its commercially reasonable efforts to cause its licensees or its sublicensees to, for each work covered by a material Copyright necessary to the normal conduct of such Pledgors business that it publishes, displays and distributes, use copyright notices as required under applicable copyright laws."
"(d) Each Pledgor shall notify the First Lien Agent (or, if the First Lien Termination Date has occurred, the Agent) promptly if it knows that any Patent, Trademark or Copyright that, in such Pledgors reasonable business judgment, is material to the normal conduct of such Pledgors business may imminently become abandoned, lost or dedicated to the public, or of any materially adverse determination or development, excluding office actions and similar determinations or developments, in the United States Patent and Trademark Office, United States Copyright Office, any court or any similar office of the United States, regarding such Pledgors ownership of any such material Patent, Trademark or Copyright or its right to register or to maintain the same."
"such year (commencing with the financial statements for the fiscal year ended December31, 2018) of each application by itself, or through any agent, employee, licensee or designee, for any Patent with the United States Patent and Trademark Office and each registration of any Trademark or Copyright with the United States Patent and Trademark Office, the United States Copyright Office or any comparable office or agency in any other country filed during the preceding twelve-month period, and (ii)upon the reasonable request of the First Lien Agent (or, if the First Lien Termination Date has occurred, the Agent), execute and deliver any and all agreements, instruments, documents and papers as the First Lien Agent (or, if the First Lien Termination Date has occurred, the Agent) may reasonably request to evidence the Agents Security Interest in such United States federally registered or pending Patent, Trademark or Copyright."
"(h) Solely upon and during the continuance of an Event of Default, at the request of the First Lien Agent (or, if the First Lien Termination Date has occurred, the 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 to effect the assignment of all such Pledgors right, title and interest thereunder to (in the First Lien Agents (or, if the First Lien Termination Date has occurred, the Agents) sole discretion) the designee of such agent or such agent."
"SECTION 5.02. Security Interest Absolute. All rights of the Agent hereunder, the Security Interest, the security interest in the Pledged Collateral and all obligations of each Pledgor hereunder shall be absolute and unconditional irrespective of (a)any lack of validity or enforceability of any Notes Indenture Document, any agreement with respect to any of the Secured Obligations or any other agreement or instrument relating to any of the foregoing, (b)any change in the time, manner or place of payment of, or in any other term of, all or any of the Secured Obligations, or any other amendment or waiver of or any consent to any departure from any Notes Indenture Document or any other agreement or instrument, (c)any exchange,"
"SECTION 5.03. Limitation by Law. All rights, remedies and powers provided in this Agreement may be exercised only to the extent that the exercise thereof does not violate any applicable provision of law or regulation (including any Gaming Law or Liquor Law), and all the provisions of this Agreement are intended to be subject to all applicable mandatory provisions of law or regulation (including any Gaming Law or Liquor Law) that may be controlling and to be limited to the extent necessary so that they shall not render this Agreement invalid, unenforceable, in whole or in part, or not entitled to be recorded, registered or filed under the provisions of any applicable law or regulation (including any Gaming Law or Liquor Law)."
"SECTION 5.05. Successors and Assigns. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the permitted successors and assigns of such party; and all covenants, promises and agreements by or on behalf of any Pledgor or the Agent that are contained in this Agreement shall bind and inure to the benefit of their respective permitted successors and assigns. The Agent hereunder shall at all times be the same person that is the Trustee under the Notes Indenture. Written notice of resignation by the Agent as Trustee pursuant to the Notes Indenture shall also constitute notice of resignation as the Agent under this Agreement. Upon the acceptance of any appointment as the Trustee under the Notes Indenture by a successor Agent, that successor Trustee shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent pursuant hereto."
"(d) Agent has been appointed as Collateral Agent hereunder pursuant to the terms of the Notes Indenture and shall be entitled to the benefits of the Notes Indenture Documents. Notwithstanding anything contained herein to the contrary, Collateral Agent may employ agents, trustees, or attorneys-in-fact and may vest any of them with any Collateral, title, right or power deemed necessary for the purposes of such appointment."
"(v) The Agent shall not be deemed to be in a relationship of trust or confidence with the First Lien Agent, any Secured Party, or any other Person (including any beneficiary under the Second Lien Intercreditor Agreement or any other intercreditor agreement entered into in connection with the transactions contemplated hereunder), and shall not owe any fiduciary, trust or other special duties to such parties. The parties hereto acknowledge that the Agents duties do not include any discretionary authority, determination, control or responsibility with respect to any Notes Indenture Documents or any Collateral, notwithstanding any rights or discretion that may be granted to the Agent in such Notes Indenture Documents. The provisions of this Agreement, including, without limitation those provisions relating to the rights, duties, powers, privileges, protections and indemnification of the Agent shall apply with respect to any actions taken or not taken by the Agent under any Notes Indenture Documents."
"(xiii) The Agent shall not be deemed to have actual, constructive, direct or indirect knowledge or notice of the occurrence of any Default unless and until the Agent has received a written notice or a certificate from the Pledgors stating that a Default has occurred. The Agent shall have no obligation whatsoever either prior to or after receiving such notice or certificate to inquire whether a Default has in fact occurred and shall be entitled to rely conclusively, and shall be fully protected in so relying, on any notice or certificate so furnished to it. No provision of this Agreement or any of theNotes Indenture Documents shall require the Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under this Agreement or any of theother Notes Indenture Documents. The Agent may decline to act unless it receives indemnity satisfactory to it in its sole discretion, including, if applicable, an advance of moneys necessary to take the action requested. The Agent shall be under no obligation or duty to take any action under this Agreement or any of the otherNotes Indenture Documents or otherwise if taking such action (a)would subject Collateral Agent to a tax in any jurisdiction where it is not then subject to a tax or (b)would require the Agent to qualify to do business in any jurisdiction where it is not then so qualified."
"(xiv) Each Pledgor agrees to pay, and to save the Agentharmless from, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Collateral or in connection with any of the transactions contemplated by this Agreement or any otherNotes Indenture Document."
"SECTION 5.11. Severability . In the event any one or more of the provisions contained in this Agreement or in any other Notes Indenture Document should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. The parties 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."
"SECTION 5.12. Counterparts . This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute but one contract, and shall become effective as provided in Section5.04. Delivery of an executed counterpart to this Agreement by facsimile or other electronic transmission shall be as effective as delivery of a manually signed original."
"(b) Each party to this Agreement 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 Notes Indenture Document in any New York State or federal court of the United States of America sitting in New York County, 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."
"(d) In respect of any property and assets securing Senior Lender Claims, the security interest hereunder and in any other Security Document securing the Secured Obligations in such property and assets shall be automatically released upon the release of the security interests securing such assets or property securing any Senior Lender Claims, other than in connection with a Discharge of Senior Lender Claims; and"
"(a) the pledge of the Pledged Stock of any Pledgor that is a licensee or registered holding company under the Gaming Laws applicable in the State of Nevada (Nevada Gaming Laws) (any such entity, a Nevada Licensee), pursuant to this Agreement or any other Notes Indenture Document, will not be effective without the prior approval of the Gaming Authorities having jurisdiction in Nevada (the Nevada Gaming Authorities), to the extent required by applicable law, and no certificates evidencing any such Pledged Stock may be delivered to the First Lien Agent or the Agent until such approval has been obtained. Furthermore, no amendment of this Agreement shall be effective until any approvals required from the Nevada Gaming Authorities under the Nevada Gaming Laws have been obtained;"
"(c) the Agent, and any custodial agent of Agent in the State of Nevada, will be required to comply with the conditions, if any, imposed by the Nevada Gaming Authorities in connection with their approval of the pledge granted hereunder, including, without limitation, requirements that the Agent or its custodial agent maintain the certificates evidencing the Pledged Stock of Nevada Licensees at a location in Nevada provided to the Nevada Gaming Authorities, and that the Agent or its custodial agent permit agents or employees of the Nevada Gaming Authorities to inspect such certificates upon request during normal business hours;"
"(e) any approval of the Nevada Gaming Authorities of this Agreement, or any amendment hereto, does not constitute approval, either express or implied, of the Agent to take any actions provided for in this Agreement, for which separate approval by the Nevada Gaming Authorities may be required by the Gaming Laws;"
"(f) the Agent, the Secured Parties and their respective successors and assigns are subject to being called forward by the Nevada Gaming Authorities in their sole and absolute discretion, for licensing or a finding of suitability in order to remain entitled to the benefits of this Agreement and any other Notes Indenture Documents; and"
"SUPPLEMENT NO. dated as of  (this Supplement), to the Collateral Agreement (Second Lien) dated as of October6, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the Collateral Agreement), by and among VICI Properties1 LLC, a Delaware limited liability company (VICI Properties), VICI FC Inc., a Delaware corporation (Finco, and collectively with VICI Properties, the Issuers), each Subsidiary of the Issuers listed on Schedule I to the Collateral Agreement and each Subsidiary of the Issuers that becomes a party hereto (each, a Subsidiary Party) and UMB Bank, National Association, as Collateral Agent (in such capacity, the Agent) for the Secured Parties (as defined therein)."
"SECTION 2. The New Subsidiary represents and warrants to the 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 (i)the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws affecting creditors rights generally, (ii)general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii)implied covenants of good faith and fair dealing."
"(iv) represents that the Authorized Representative has been duly authorized by the New Secured Parties to become a party to the Collateral Agreement and, if applicable, the Second Lien Intercreditor Agreement on behalf of the New Secured Parties under that [DESCRIBE OPERATIVE AGREEMENT] (the New Secured Obligation) and to act as the Authorized Representative for the New Secured Parties;"
"Authorized Representative for the New Secured Parties with respect to the New Secured Obligations and agrees on its own behalf and on behalf of the New Secured Parties to be bound by the terms thereof applicable to holders of Other Second Lien Obligations, with all the rights and obligations of a Secured Party thereunder and bound by all the provisions thereof (including, without limitation, Section2.02(b) thereof) as fully as if it had been a Secured Party on the effective date of the Second Lien Intercreditor Agreement and agrees that its address for receiving notices pursuant to the Security Documents and the Second Lien Intercreditor Agreement shall be as follows:"
"6609926 Thompson Coburn LLP - 4 - Holding Company Guidelines are the Risk - Based Capital Adequacy Guidelines for Bank Holding Companies of The Board of Governors of the Federal Reserve System as set forth in 12 CFR Part 225 , Appendix A, as from time to time amended, or in any successor Law of similar import, Holding Company Liquidity means all cash and Cash - Equivalents reflected as assets on the financial statements of Borrower . Immaterial Subsidiary means any other Subsidiary of Borrower that is (i) dormant or inactive or (ii) that accounts for less than I % of Borrower's total consolidated assets as determined in accordance with GAAP . lmlebtetlness of any Person means and include all obligations of such Person which in accordance with GAAP are or should be classified upon a balance sheet of such Person as liabilities of such Person, any and all obligations of other Persons which such Person has guaranteed (other than those incurred in the ordinary course of banking business), all reimbursement obligations in connection with letters of credit or letter of credit guaranties issued for the account of such Person (other than those incurred in the ordinary course of banking business) and any and all obligations of such Person under any Capitalized Lease . lntlemnijietl Liabilities are defined in Section 8.05. lntlemnitees are defined in Section 8.05. Knowledge means the actual knowledge of the President or another executive officer of a Subsidiary Bank as defined in 12 C . F . R . 215 . 2 , as amended from time to time, or in any successor Law, rule or regulation of similar import, or the Chief Executive Officer, Chief Financial Officer or another executive officer of Borrower as defined in 12 C . F . R . 215 . 2 , as amended from time to time, or in any successor law, rule or regulation of similar import . Laws means, collectively, all international, foreign, federal, state, local and other statutes, treaties, rules, regulations, guidelines, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Regulatory Agency charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Regulatory Agency, in each case whether or not having the force of law and Law means each or any of them . Lien means any interest in Property securing an obligation owed to, or a claim by, a Person other than the owner of the Property, whether such interest is based on common law, statute or contract, including, without limitation, any security interest, mortgage, deed of trust, pledge, lien or other encumbrance of any kind or nature whatsoever, any conditional sale or trust receipt and any lease, consignment or bailment for security purposes . Loan Documents mean this Agreement, the Note, the Closing Certificate, and all other agreements, documents, instruments and certificates connected with or otherwise relating to this Agreement or the Revolving Credit Loans made hereunder, all as the same may from time to time be amended, modified, extended or renewed . Material At/verse Effect means (a) a material adverse effect on the Properties, assets, liabilities, business, operations, income or financial condition of Borrower, Subsidiary Banks and/or any Subsidiary, taken as a whole, (b) material impairment of the ability of Borrower to perform any of its obligations under this Agreement, the Note, or any of the other Loan Documents or (c) material impairment of the enforceability of the rights of, or benefits available to, Lender under this Agreement, the Note, or any of the other Loan Documents. Moody's means Moody's Investors Service, Inc. or any successor thereto. Multiemployer Plan means a ""multiemployer plan"" as defined in Section 400 I (a) ( 3 ) of ERISA which is maintained for employees of Borrower, any other Obligor, any ERISA Affiliate or Subsidiary Bank . Net Income means, with respect to any Person for any period, the aggregate net income (or net loss) of such Person for such period equal to net revenues and other proper income less the aggregate amount of any and all items which are"
"6609926 Thompson Coburn LLP - 6 - agreement, financing lease or other arrangement pursuant to which title to the Property has been retained by or vested in some other Person for security purposes. Regulation is defined in Section 2.06. Regulatory Agency means any Federal, state or local governmental or regulatory agency, authority, entity or official having jurisdiction over the banking or other related activities of Borrower, any Subsidiary Bank, and/or any Subsidiary, including, without limitation (to the extent applicable), the Treasury, the Federal Reserve, the FDIC, the SEC, the Arkansas State Bank Department, the Tennessee Department of Financial Institutions and the Oklahoma Banking Department, and any successors thereto . Related Party means any Person which directly or indirectly through one or more intermediaries controls, or is controlled by or is under common control with, Borrower, or Subsidiary Banks . The term ""controf' means the possession, directly or indirectly, of the power to vote I 0 % or more of the Capital Stock of any Person or the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise : provided that a Person that ""controls"" Borrower shall be limited to any Person that has the authority to vote I 0 % or more of the Capital Stock of Borrower . Reportable Event has the meaning given to such term in ERISA. Reprice Date means the first day of each month : provided that if the initial Revolving Credit Loan hereunder occurs other than on a Reprice Date, the initial one - month LIBOR rate shall be that one - month LIBOR rate in effect two ( 2 ) New York Banking Days prior to the date of the initial Revolving Credit Loan, which rate plus the Applicable Margin shall be in effect until the next Reprice Date . Revolving Credit Commitment means, subject to any reduction thereof pursuant to Section 2.0l(c), $75,000,000. Revolving Credit Loan and Revolving Credit Loans are defined in Section 2.0 I (a). Revolving Credit Period means the period commencing on the date of this Agreement and ending October 5 , 2018 ; provided , however, that the Revolving Credit Period shall end on the date the Revolving Credit Commitment is terminated pursuant to Section 6 or otherwise . S&P means Standard and Poor's Ratings Services, a division of The McGraw - Hill Companies, Inc. or any successor thereto. Sanctions means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U . S . government, including those administered by OFAC or the U . S . Department of State or (b) the United Nations Security Council, the European Union or Her Majesty's Treasury of the United Kingdom . SEC means the United States Securities and Exchange Commission. Senior Loan Pool means those loans represented by the unsecured term promissory notes executed by Borrower and payable to the order of certain downstream financial institutions, which are due and payable in October 2020 and which, as of the Effective Date, are in the aggregate principal amount of $ 45 , 675 , 000 . Southwest Ba 11 corp Acquisition means the proposed Acquisition by Borrower of Southwest Bancorp, Inc . , which was approved by the Federal Reserve on August 25 , 2017 and as of the Effective Date, is subject to the approval of the shareholders of Borrower and Southwest Bancorp, Inc . Subordinated Debt means as of the date of any determination thereof, the aggregate principal amount of all Indebtedness of Borrower outstanding as of such date which is subordinated in writing (either by its terms or pursuant to a subordination agreement) to the payment and priority of all of Obligations in form and substance satisfactory to Lender ."
"6609926 Thompson Coburn LLP - 7 - Subsidiary means, with respect to any Person, (a) any corporation more than 50 % of the outstanding Capital Stock having ordinary voting power of which shall at the time be owned or controlled, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, or (b) any partnership, limited liability company, association, joint venture or similar business organization more than 50 % of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled ; provided that the following shall not be considered a Subsidiary for any purpose hereunder unless specifically noted in a particular section of this Agreement (i) any trust established by Borrower for the purpose of issuing trust preferred securities and related trust common securities, (ii) Heartland Bank, an Arkansas chartered bank (""Heartland Bank""), and (iii) an Immaterial Subsidiary . Subsidiary Bank means each of Simmons Bank, an Arkansas chartered bank, and each other Subsidiary that is a Bank ; and Subsidiary Banks means all of them ; provided that Heartland Bank shall not be considered a Subsidiary Bank for any purpose hereunder unless specifically noted in a particular section of this Agreement . Treasury means the United States Department of the Treasury. U . S . Govemment Guaranteed Loans means those loans made or held by Subsidiary Banks that are guaranteed by the U . S . Small Business Administration, the U . S . Federal Housing Administration, the U . S . Department of Agriculture or other federal departments, agencies or related entities . USA PATRIOT Act means the USA PATRIOT Act (Title Ill of Pub . L . I 07 - 56 (signed into law October 26 , 200 I)), as amended from time to time, and any successor statute . Voting Stock means, with respect to any corporation, partnership, limited liability company or other entity, any Capital Stock of or in such corporation, limited liability company, partnership or other entity whose holders are entitled under ordinary circumstances to vote for the election of directors (or Persons performing similar functions) of such corporation, limited liability company, partnership or other entity (irrespective of whether at the time Capital Stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency) . Well capitalized is defined in the FDIC Capital Guidelines ( 12 CFR  325 . 103 (b)(I)), and as of the Effective Date until the FDIC Capital Guidelines have been revised, a Subsidiary Bank shall be deemed to be well capitalized if such Subsidiary Bank has (a) a ""total risk - based capital ratio"" (defined in 12 C . F . R .  325 . 2 (y)) of I 0 . 0 % or greater, (b) a ""Tier I risk - based capital ratio"" (defined in 12 C . F . R .  325 . 2 (w)) of 6 . 0 % or greater, and (c) a ""leverage ratio"" (defined in 12 C.F.R.  325.2(m)) of 5.0% or greater and (d) is not subject to any written agreement, order, capital directive, or prompt corrective action directive issued by the FDIC pursuant to 12 U.S.C.  1818, 12 U.S.C.  18310, 12 U.S.C.  3907, or any regulation thereunder, to meet and maintain a specific capital level for any capital measure. SECTION 2 - THE REVOLVING CREDIT 2 . 01 Revolving Credit Commitment (a) Subject to the terms and conditions set forth in this Agreement and so long as no Default or Event of Default has occurred and is continuing, during the Revolving Credit Period, Lender agrees to make such loans to Borrower (individually, a ""Revolving Credit Loan"" ; and collectively, the ""Revolving Credit Loans"") as Borrower may from time to time request pursuant to Section 2 . 0 I (b) . Each Revolving Credit Loan under this Section 2 . 0 I (a) shall be for an aggregate principal amount of at least $ I 00 , 000 or any larger multiple of $ 50 , 000 . The aggregate principal amount of Revolving Credit Loans which Lender shall be required to have outstanding under this Agreement as of any date shall not exceed the amount of the Revolving Credit Commitment as of such date . Within the foregoing limits, Borrower may borrow under this Section 2 . 0 I (a), prepay under Section 2 . 03 (c) and re - borrow at any time during the Revolving Credit Period under this Section 2 . 0 I (a) . All Revolving Credit Loans not paid prior to the last day of the Revolving Credit Period, together with all accrued and unpaid interest thereon and all fees and other amounts owing by Borrower to Lender with respect thereto, shall be due and payable on the last day of the Revolving Credit Period . (b) Borrower shall give written notice (a ""Notice of Borrowing"") to Lender by I 0 : 00 a . m . (Central Time) on the Business Day of each advance of a Revolving Credit Loan specifying (i) the date of such Revolving Credit Loan, which must be a Business Day, and (ii) the aggregate principal amount of such Revolving Credit Loan . Unless Lender determines that any applicable condition specified in Section 3 of this Agreement has not been satisfied, Lender shall make the proceeds of any Revolving Credit Loan available to Borrower by crediting such funds to a demand deposit account at Lender specified"
"Company Only Financial Statements for Large Bank Holding Companies (FR Y - 9LP) for Borrower as of June 30, 2017; and 6609926 Thompson Coburn LLP - 11 - to comply with any such condition within five ( 5 ) Business Day's written notice from Lender to Borrower shall constitute an Event of Default . 3 . 02 All Revolving Credit Loans . Notwithstanding any provision contained in this Agreement to the contrary, Lender shall have no obligation to make any Revolving Credit Loan under this Agreement unless : (a) Lender shall have received a Notice of Borrowing; (b) both immediately before and immediately after giving effect to the making, continuation or conversion of such Revolving Credit Loan, no Default or Event of Default under this Agreement shall have occurred and be continuing ; (c) all of the representations and warranties made Borrower in this Agreement and/or in any other Loan Document shall be true and correct in all material respects (or, with respect to any such representation or warranty that is qualified as to ""materiality"" or ""Material Adverse Effect"", shall be true and correct in all respects) on and as of the date of the making, continuation or conversion of such Revolving Credit Loan as if made on and as of the date of the making, continuation or conversion of such Revolving Credit Loan (except (x) to the extent such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to any such representation or warranty that is qualified as to ""materiality"" or ""Material Adverse Effect"", shall be true and correct in all respects) as of such earlier date and (y) that for purposes of this Section 3 . 02 (c), the representations and warranties made by Borrower in Section 4 . 04 shall be deemed to refer to the most recent financial statements of Borrower and its Consolidated Subsidiaries delivered to Lender pursuant to Sections 5 . 03 (a) and/or 5 . 03 (d), as applicable) . Each request for the making of a Revolving Credit Loan by Borrower under this Agreement shall be deemed to be a representation and warranty by Borrower on the date of the making of such Revolving Credit Loan as to the facts specified in clauses (b) and (c) of this Section 3 . 02 . SECTION 4 - REPRESENTATIONS AND WARRANTIES To induce Lender to make the Revolving Credit Loans, Borrower represents and warrants to Lender that: 4 . 0 I Corporate Existence and Power . Each of Borrower, each Subsidiary Bank and each other Subsidiary : (a) is duly incorporated or organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization ; (b) has all requisite corporate or other powers and all governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted ; and (c) is duly qualified to do business in all jurisdictions in which the nature of the business conducted by it makes such qualification necessary and where failure to so qualify would have a Material Adverse Effect on its business, financial condition or operations . Borrower is a ""bank holding company"" as defined in and within the meaning of 12 U . S . C .  1841 (a)(I), and as such Borrower has filed all necessary reports with and received all necessary approvals from the Federal Reserve . Each Subsidiary Bank is an ""insured bank"" as defined in and within the meaning of 12 U . S . C .  I 8 I 3 (h) . 2. Corporate Authorization . The execution, delivery and performance by Borrower of this Agreement, the Note, and the other Loan Documents are within the corporate powers of Borrower and have been duly authorized by all necessary corporate action . 3. Binding Effect . This Agreement, the Note, and the other Loan Documents have been duly authorized, executed and delivered and constitute the legal, valid and binding obligations of Borrower enforceable in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights in general . 4. Financial Statements . Borrower has filed with the appropriate Regulatory Agency or furnished Lender with the following financial statements : (a) consolidated balance sheets and profit and loss statements of Borrower and its Consolidated Subsidiaries as of December 31 , 20 I 6 , all certified by Borrower's independent certified public accountants, which financial statements have been prepared in accordance with GAAP ; and (b) the Consolidated Financial Statements for Bank Holding Companies (FR Y - 9 C) of Borrower and its Consolidated Subsidiaries as of June 30 , 2017 ; (c) the Parent"
"(d) the Consolidated Reports of Condition and Income For A Bank With Domestic Offices Only (FFIEC 041 ) of each Subsidiary Bank as of June 30 , 2017 . Borrower further represents that : (i) said financial statements fairly present in all material respects the financial condition of Borrower and its Consolidated Subsidiaries as of the dates thereof, (ii) there has been no change in the financial condition or operation of Borrower or any of its Consolidated Subsidiaries since December 31 , 2016 that could have a Material Adverse Effect, and (iii) neither Borrower nor any of its Consolidated Subsidiaries has any direct or contingent liabilities which are not disclosed on said financial statements which could have a Material Adverse Effect . 5. Litigation . Except as disclosed in Schedule 4 . 05 attached below, there is no action or proceeding pending or, to the Knowledge of Borrower, threatened against or affecting Borrower, any Subsidiary Bank or any other Subsidiary before any court, arbitrator or governmental, regulatory or administrative body, agency or official which could result in any change in the financial condition or operation of Borrower, any Subsidiary Bank or any Subsidiary that could have a Material Adverse Effect, and neither Borrower, any Subsidiary Bank nor any Subsidiary is in default with respect to any order, writ, injunction, decision or decree of any court, arbitrator or governmental, regulatory or administrative body, agency or official which could have a Material Adverse Effect on Borrower, any Subsidiary Bank or any other Subsidiary . 6. Pension and Welfare Plans . Each Pension Plan complies with all applicable statutes and governmental rules and regulations ; no Reportable Event has occurred and is continuing with respect to any Pension Plan ; neither Borrower, any ERISA Affiliate, nor any Subsidiary Bank has withdrawn from any Multiemployer Plan in a ""complete withdrawal"" or a ""partial withdrawal"" as defined in Sections 4203 or 4205 of ERISA, respectively ; no steps have been instituted by Borrower, any ERISA Affiliate or any Subsidiary Bank to terminate any Pension Plan ; no condition exists or event or transaction has occurred in connection with any Pension Plan or Multiemployer Plan which could result in the incurrence by Borrower, any ERISA Affiliate or any Subsidiary Bank of any material liability, fine or penalty ; and neither Borrower, any ERISA Affiliate, nor any Subsidiary Bank is a ""contributing sponsor"" as defined in Section 400 I (a) ( 13 ) of ERISA of a ""single - employer plan"" as defined in Section 400 I (a) ( 15 ) of ERISA which has two or more contributing sponsors at least two of whom are not under common control . Neither Borrower nor any Subsidiary Bank has any contingent liability with respect to any ""employee welfare benefit plans"", as such term is defined in Section 3 (a) of ERISA, which covers retired employees and their beneficiaries . 7. Tax Returns . Borrower, each Subsidiary Bank and each other Subsidiary has filed all Federal, state and local income tax returns and all other tax returns which are required to be filed and has paid all taxes due pursuant to such returns or pursuant to any assessment received by Borrower, each Subsidiary Bank and each other Subsidiary, except for the filing of such returns, if any, in respect of which an extension of time for filing is in effect, and except where the payment of such tax, assessment, government charge or levy is being contested in good faith and by appropriate proceedings and adequate reserves in compliance with GAAP have been set aside on the books of Borrower, each Subsidiary Bank and each other Subsidiary, as appropriate . 8. Subsidiaries . Schedule 4 . 08 attached below contains a list of all Subsidiaries of Borrower that exist as of the Effective Date . All of the issued and outstanding Capital Stock of each Subsidiary owned by Borrower is duly authorized, validly issued and fully paid and non - assessable . 9. Compliance With Other Instruments ; None Burdensome . None of the execution and delivery by Borrower of the Loan Documents, the consummation of the transactions therein contemplated or the compliance with the provisions thereof will violate any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on Borrower or any Subsidiary Bank, or any of the provisions of their Articles or Certificate of Incorporation or Association, or Bylaws or any of the provisions of any indenture, agreement, document, instrument or undertaking to which Borrower or any Subsidiary Bank is a party or subject, or by which it or its Property is bound . No order, consent, approval, license, authorization or validation of, or filing (other than SEC filings), recording or registration with, the exemption by, any governmental, regulatory, administrative or public body or authority, or any subdivision thereof, which has not already been obtained, is required to authorize, or is otherwise required in connection with, the execution, delivery or performance of, or the legality, validity, binding effect or enforceability of, any of the Loan Documents . 10. Other L oans and Guarantees . Except as disclosed by Borrower to Lender, neither Borrower nor any Subsidiary Bank (except in the ordinary course of their businesses) is borrower, guarantor or obligor with respect to any loan transaction, guarantee or other indebtedness for borrowed money in the principal amount in excess of $ 10 , 000 , 000 . 6609926 Thompson Coburn LLP - 12 -"
"6609926 Thompson Coburn LLP - 19 - 9. Margin Stock . Except in connection with Permitted Acquisitions, permit any proceeds of the Revolving Credit Loans to be used either directly or indirectly for the purpose (whether immediate, incidental or ultimate) of ""purchasing or carrying any margin stock"" within the meaning of Regulation U of the Federal Reserve, as from time to time amended . 10. Nature of Business . Conduct or engage in any business if, as a result thereof, the general nature of the business which would thereafter be engaged in by Borrower, any Subsidiary Bank or any other Subsidiary, as the case may be, would be substantially changed from the general nature of the business engaged in on the date of this Agreement by Borrower, any Subsidiary Bank or any other Subsidiary, as the case may be, except to the extent such change with respect to any Subsidiary would not have or cause a Material Adverse Effect . 11. Other Agreements . Enter into any material agreement containing any provision which would be violated or breached by the performance of its obligations hereunder or under any instrument or document delivered or to be delivered by it hereunder or in connection herewith . SECTION 7 - EVENTS OF DEFAULT If any of the following (each, an ""Event of Defa 11 /f') shall occur and be continuing, unless otherwise waived in writing by Lender : 7 . 0 I Borrower shall fail to pay any of the Obligations (a) consisting of principal as and when the same shall become due and payable, whether by reason of demand, acceleration or otherwise or (b) consisting of interest or fees as and when the same shall become due and payable, whether by reason of demand, acceleration or otherwise and such failure remains unremedied for five ( 5 ) days after any such date ; 2. Any representation or warranty of Borrower, and/or any Subsidiary Bank made in this Agreement or in any of the other Loan Documents or in any certificate, agreement, instrument or statement furnished or made or delivered pursuant hereto or thereto or in connection herewith or therewith, shall prove to have been untrue or incorrect in any material respect when made or effected ; 3. Borrower shall fail to perform or observe any term, covenant or provision contained in Sections 5 . 08 , 5 . 09 , 5 . 10 , 5 . 11 , 5 . 12 , 5 . 13 , or 6 hereof ; 4. Borrower shall fail to perform or observe any other term, covenant or prov 1 s 10 n contained in this Agreement, and any such failure shall remain unremedied for thirty ( 30 ) days after the earlier of (a) written notice of default is given to Borrower by Lender or (b) Borrower obtaining Knowledge of such failure ; 5. [RESERVED]; 6. Borrower, any Subsidiary Bank, any other Subsidiary or any other Obligor shall (a) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code or any other Federal, state or foreign bankruptcy, insolvency, receivership, liquidation or similar law, (b) consent to the institution of, or fail to contravene in a timely and appropriate manner, any such proceeding or the filing of any such petition, (c) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator or similar official of itself, himself or herself or of a substantial part of its Property or assets, (d) file an answer admitting the material allegations of a petition filed against itself in any such proceeding, (e) make a general assignment for the benefit of creditors, (t) become unable, admit in writing its, his or her inability or fail generally to pay its, his or her debts as they become due, (g) become insolvent in either the equity or bankruptcy sense of the term or (h) take any corporate or other action for the purpose of effecting any of the foregoing ; 7. An involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (a) relief in respect of Borrower, any Subsidiary Bank, any other Subsidiary or any other Obligor, or of a substantial part of the Property or assets of Borrower, any Subsidiary Bank, any Subsidiary or any other Obligor, under Title 11 of the United States Code or any other Federal, state or foreign bankruptcy, insolvency, receivership, liquidation or similar law, (b) the appointment of a receiver, trustee, custodian, sequestrator or similar official of Borrower, any Subsidiary Bank, any other Subsidiary or any other Obligor or of a substantial part of the Property or assets of Borrower,"
"6609926 Thompson Coburn LLP - 21 - without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by Borrower ; provided, however, that Lender shall provide written notice to Borrower of such declaration no later than five ( 5 ) Business Days after it is made ; and Lender may exercise any and all other rights and remedies which it may have under any of the other Loan Documents or under applicable law ; provided , however, that upon the occurrence of any event described in Sections 7 . 06 , 7 . 07 , or 7 . 08 , the entire outstanding principal balance of and all accrued and unpaid interest on the Note issued under this Agreement and all other amounts payable by Borrower hereunder shall automatically become immediately due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by Borrower, and Lender may exercise any and all other rights and remedies which it may have under any of the other Loan Documents or under applicable law . SECTION 8 - GENERAL 1. No Waiver . No failure or delay by Lender or the holder of the Note in exercising any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof ; nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege . The remedies provided herein and in the other Loan Documents are cumulative and not exclusive of any remedies provided by law . Nothing herein contained shall in any way affect the right of Lender to exercise any statutory or common law right of banker's lien or set - off . 2. Right of Set - Off . Upon the occurrence and during the continuance of any Event of Default under this Agreement, Lender is authorized at any time and from time to time to set - off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and any and all other indebtedness at any time owing by Lender to or for the credit or the account of Borrower against any and all of the Obligations irrespective of whether or not Lender shall have made any demand hereunder or thereunder . Lender agrees promptly to notify Borrower after any such set off and application made by Lender, provided, however, that the failure to give such notice shall not affect the validity of such set - off and application . The rights of Lender under this Section 8 . 02 are in addition to any other rights and remedies (including, without limitation, other rights of set - oft) which Lender may have . Nothing contained in this Agreement or any other Loan Document shall impair the right of Lender to exercise any right of set - off or counterclaim it may have against Borrower and to apply the amount subject to such exercise to the payment of indebtedness of Borrower unrelated to this Agreement or the other Loan Documents . 3. Cost and Expenses . Borrower agrees to pay (a) all out - of - pocket costs and expenses of Lender in connection with the preparation, negotiation and execution of this Agreement, the Note and the other Loan Documents, including, without limitation, Attorneys' Fees, (b) all recording and filing fees incurred in connection with this Agreement and the other Loan Documents, (c) all out - of - pocket expenses of Lender in connection with the preparation of any waiver or consent hereunder or any amendment hereof or any Event of Default or alleged Event of Default hereunder, including, without limitation, Attorneys' Fees, (d) if an Event of Default occurs, all out - of - pocket costs and expenses incurred by Lender, including, without limitation, Attorneys' Fees, in connection with such Event of Default and collection and other enforcement proceedings resulting there from and (e) all other Attorneys' Fee incurred by Lender relating to or arising out of or in connection with this Agreement or any of the other Loan Documents . 4. Environmental Indemnity . Borrower hereby agrees to indemnify Lender and hold Lender harmless from and against any and all losses, liabilities, damages, injuries, costs, expenses and claims of any and every kind whatsoever (including, without limitation, court costs and Attorneys' Fees), to the extent such losses, liabilities, damages, injuries, costs, expenses or claims have a Material Adverse Effect, which at any time or from time to time may be paid, incurred or suffered by, or asserted against, Lender for, with respect to or as a direct or indirect result of the violation by Borrower, any Subsidiary Bank or any other Subsidiary of any laws or regulations relating to solid waste and/or hazardous waste treatment, storage, disposal, generation and transportation, air, water and/or noise pollution, soil or ground or water contamination, the handling, storage or release into the environment of hazardous materials or hazardous substances, and the transportation of hazardous materials (""E 11 viro 11111 e 11 tal Laws"") ; or with respect to, or as a direct or indirect result of the presence on or under, or the escape, seepage, leakage, spillage, discharge, emission or release from, properties utilized by Borrower, any Subsidiary Bank or any other Subsidiary in the conduct of their respective businesses into or upon any land, the atmosphere or any watercourse, body of water or wetland, of any hazardous material or substances (including, without limitation, any losses, liabilities, damages, injuries, costs, expenses or claims asserted or arising under the Environmental Laws) ; and the provisions"
"been paid in full and all Obligations with respect to the Term Loan Facility (including any Refinancing Term Loans and Incremental Term Loans hereunder) shall have be satisfied and paid in full, (ii)to the extent any obligation under the Bridge Credit Agreement, any Qualifying Committed Financing or any refinancing thereof remains outstanding at such time, such obligations shall be unsecured, and (iii)the Investment Grade Ratings Requirement is satisfied at such time; (2)(i)all Term Loans (including all Refinancing Term Loans and Incremental Term Loans) shall have been paid in full and all Obligations with respect to the Term Loan Facility (including any Refinancing Term Loans and Incremental Term Loans hereunder) shall have be satisfied and paid in full, (ii)to the extent any obligation under the Bridge Credit Agreement, any Qualifying Committed Financing or any refinancing thereof remains outstanding at such time, such obligations shall be unsecured, (iii)the Public Debt Ratings at such time from at least two of S&P, Moodys and Fitch shall be (x)as to S&P, BB+ or better (with stable outlook or better), (y)with respect to Moodys, Ba1 or better (with stable outlook or better) and (y)as to Fitch, BB+ or better (with stable outlook or better), and (iv)after giving effect thereto and on a Pro Forma Basis, the Leverage Ratio is not greater than 3.0 to 1.00; or (3)(i)the Senior Notes shall have been issued by the Company or any other Loan Party, (ii)upon such issuance of the Senior Notes or promptly thereafter, all commitments and other obligations outstanding under the Bridge Credit Agreement shall have been terminated pursuant to the terms thereof (other than those obligations expressly stated to survive such termination), and (iii)the Public Debt Rating publicly announced or issued and then in effect by each of S&P, Moodys and Fitch, in each case after giving effect to the Transactions, shall be an Investment Grade Rating."
"SECTION 7. GOVERNING LAW; WAIVER OF JURY TRIAL. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY AGREES AS SET FORTH FURTHER IN SECTION 9.09 OF THE CREDIT AGREEMENT AS IF SUCH SECTION WERE SET FORTH IN FULL HEREIN."
"| | | | ---|---|---|---|--- MICHAEL KORS HOLDINGS LIMITED, as a Borrower | By: |  | /s/ Thomas J. Edwards, Jr. |  | Name: |  | Thomas J. Edwards, Jr. |  | Title: |  | Executive Vice President, Chief Financial Officer, Chief Operating Officer and Treasurer MICHAEL KORS (USA), INC., as a Borrower | By: |  | /s/ David Provenzano |  | Name: |  | David Provenzano |  | Title: |  | Assistant Treasurer MICHAEL KORS (CANADA) HOLDINGS LTD., as a Borrower | By: |  | /s/ David Provenzano |  | Name: |  | David Provenzano |  | Title: |  | Assistant Treasurer MICHAEL KORS (EUROPE) B.V., as a Borrower | By: |  | /s/ David Provenzano |  | Name: |  | David Provenzano |  | Title: |  | Managing Director / Attorney MICHAEL KORS (SWITZERLAND) GMBH, as a Borrower | By: |  | /s/ David Provenzano |  | Name: |  | David Provenzano |  | Title: |  | Managing Officer "
"Control Agreement shall mean, as to any deposit account or security account of any Grantor held with a bank or other financial institution, an agreement or agreements in form and substance reasonably acceptable to the Collateral Agent, among the Grantor owning such deposit account or security account, as applicable, the Collateral Agent, and such other bank or financial institution governing such deposit account or security account, as applicable."
"Distributions means all cash, cash dividends, stock dividends, other distributions, liquidating dividends, shares of stock resulting from (or in connection with the exercise of) stock splits, reclassifications, warrants, options, non-cash dividends, and all other distributions or payments (whether similar or dissimilar to the foregoing) on or with respect to, or on account of, any Pledged Share or Pledged Interest or other rights or interests constituting Collateral, provided that Distributions shall in no event include Excluded Tax Collateral."
"General Intangibles means all general intangibles and all payment intangibles, each as defined in the UCC, and shall include all interest rate or currency protection or Hedge Contracts, all licenses, Permits, concessions and authorizations and all Intellectual Property Collateral (in each case, regardless of whether characterized as general intangibles under the UCC)."
"Pledged Interests means all Equity Interests or other ownership interests of any Pledged Interests Issuer, including those described in Item A of Schedule I hereto; all registrations, certificates, articles, by-laws, regulations, limited liability company agreements or constitutive agreements governing or representing any such interests; all options and other rights, contractual or otherwise, at any time existing with respect to such interests, as such interests are amended, modified, or supplemented from time to time, and together with any interests in any Pledged Interests Issuer taken in extension or renewal thereof or substitution therefor."
"Pledged Notes means all promissory notes of any Pledged Note Issuer evidencing Indebtedness incurred pursuant to Section6.02(e) of the Credit Agreement delivered by any Grantor 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) as Pledged Property hereunder, as such promissory notes are amended, modified or supplemented from time to time and together with any promissory note of any Pledged Note Issuer taken in extension or renewal thereof or substitution therefor."
"Trademark Collateral means (a)(i) all trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, certification marks, collective marks, logos and other source or business identifiers, and all goodwill of the business associated therewith, now existing or hereafter adopted or acquired, including, without limitation, those trademarks referred to in Item B of Schedule III hereto, whether currently in use or not, all registrations and recordings thereof and all applications in connection therewith, whether pending or in preparation for filing, including registrations, recordings and applications in the United States Patent and Trademark Office (USPTO) or in any office or agency of the United States of America, or any state thereof or any other country or political subdivision thereof or otherwise, and all common-law rights relating to the foregoing, and (ii)the right to obtain all reissues, extensions or renewals of the foregoing (collectively referred to as the Trademarks and each, a Trademark), (b) all Trademark licenses for the grant by or to any Grantor of any right to use any Trademark, (c)all of the goodwill of the business connected with the use of, and symbolized by the items described in, clause (a), and to the extent applicable clause (b), the right to sue third parties for past, present and future infringements of any Trademark Collateral described in clause (a)and, to the extent applicable, clause (b), and (e)all Proceeds of, and rights associated with, the foregoing, including any claim by any Grantor against third parties for past, present or future infringement or dilution of any Trademark, Trademark registration or Trademark license, or for any injury to the goodwill associated with the use of any such Trademark or for breach or enforcement of any Trademark license and all rights corresponding thereto throughout the world."
"(ix)all Pledged Interests, Pledged Notes, Pledged Shares and any other Pledged Property whether now or hereafter delivered 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) in connection with this Security Agreement and all Distributions, interest, and other payments and rights with respect to such Pledged Property;"
"provided, however, that (x)the exclusion from the Lien and security interest granted by any Grantor hereunder of any Excluded Collateral shall not limit, restrict or impair the grant by such Grantor of the Lien and security interest in any accounts or receivables arising under any such Excluded Collateral or any payments due or to become due thereunder unless the conditions in effect which qualify such Property as Excluded Collateral applies with respect to such accounts and receivables and (y)any Proceeds received by any Grantor from the sale, transfer or other disposition of Excluded Collateral shall constitute Collateral unless the conditions in effect which qualify such Property as Excluded Collateral applies with respect to such Proceeds. Furthermore, notwithstanding anything to the contrary contained in this Security Agreement or in any other Loan Document, under no circumstances shall any Grantor be required to take any perfection step with respect to Excluded Perfection Collateral."
"(b)Within the five years prior to the Closing Date, such Grantor has not been known by any legal name different from the one set forth on the signature page hereto, nor has such Grantor been the subject of any merger or other corporate reorganization, except as set forth in Item B of Schedule II hereto."
"(f)Such Grantor is not the beneficiary of any Letters of Credit, except as set forth on Item D of Schedule II hereto (as such schedule may be amended or supplemented from time to time). Such Grantor has obtained a legal, valid and enforceable consent of each issuer to the assignment to the Collateral Agent of the Proceeds of any Letters of Credit which have stated amounts in excess of $250,000 in the aggregate."
"SECTION 3.6.Negotiable Documents, Instruments and Chattel Paper. Such Grantor has, contemporaneously herewith, delivered 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) possession of all originals of all Documents, Instruments, promissory notes, Pledged Notes and tangible Chattel Paper evidencing amounts payable in excess of $250,000 individually or $1,000,000 in the aggregate owned or held by such Grantor (duly endorsed, in blank, if requested by the Collateral Agent)."
"(c)Such Grantor further represents and warrants, except as could not reasonably be expected to, individually or in the aggregate, result in a Material Adverse Change, that (i)such Grantor has made all necessary filings and recordations to protect its interest in such Intellectual Property Collateral, including recordations of any of its interests in the Patent Collateral and Trademark Collateral in the USPTO and, if requested by the Collateral Agent, in corresponding offices throughout the world, and its claims to the Copyright Collateral in the U.S. Copyright Office, and, if requested by the Collateral Agent, in corresponding offices throughout the world and, to the extent necessary, has used and has directed all licensees to use proper statutory notice in connection with its use of any patent, Trademark and copyright in any of the Intellectual Property Collateral, (ii)such Grantor has taken all reasonable steps to safeguard its Trade Secrets and to its knowledge none of the Trade Secrets of such Grantor has been used, divulged, disclosed or appropriated for the benefit of any other Person other than such Grantor, (iii)to such Grantors knowledge, no third party is infringing upon any Intellectual Property Collateral owned or used by such Grantor, or any of its respective licensees, (iv)no settlement or consents, covenants not to sue, nonassertion assurances, or releases have been entered into by such Grantor or to which such Grantor is bound that adversely affects its rights to own or use any Intellectual Property Collateral, (v)such Grantor uses adequate standards of quality in the manufacture, distribution, and sale of all products sold and in the provision of all services rendered under or in connection with any Trademarks and has taken all commercially reasonable action necessary to insure that any licensees of any Trademarks owned by such Grantor use such adequate standards of quality, and (vi)such Grantor owns directly or is entitled to use by license or otherwise, any patents, Trademarks, tradenames, Trade Secrets, copyrights, mask works, licenses, technology, know-how, processes and rights with respect to any of the foregoing used in, and necessary for the conduct of such Grantors business."
"SECTION 3.8.Authorization, Approval, etc.. Except for the filing or recording of UCC financing statements and consents, authorizations, filings or other actions which have been obtained or made and are in full force and effect, no Governmental Approval, authorization, approval or other action by, and no notice to or filing with, any Governmental Authority or any"
"(i)Subject to the terms of the Intercreditor Agreement, with respect to any Deposit Accounts, Securities Accounts, Commodity Accounts, Commodity Contracts or Security Entitlements constituting Investment Property owned or held by any Grantor (other than constituting Excluded Collateral or Excluded Perfection Collateral), such Grantor will, unless otherwise permitted under the Credit Agreement, upon the Collateral Agents reasonable request either (A)cause the intermediary maintaining such Investment Property to execute a Control Agreement relating to such Investment Property pursuant to which such intermediary agrees to comply with the Collateral Agents instructions with respect to such Investment Property without further consent by such Grantor, or (B)transfer such Investment Property to intermediaries that have or will agree to execute such Control Agreements."
"and (y)take and cause the appropriate Person (including any issuer, entitlement holder or securities intermediary thereof) to take all other actions reasonably necessary to grant control (as defined in 8-106 of the UCC) to the Collateral Agent (or the First Lien Administrative Agents instructions, in accordance with the Intercreditor Agreement) (for the ratable benefit of the Secured Parties) over such Collateral."
"(A)the Collateral Agent may exercise (to the exclusion of such Grantor) the voting power and all other incidental rights of ownership with respect to any Pledged Shares, Pledged Interests, Investment Property or other Equity Interests constituting Collateral. EACH GRANTOR HEREBY GRANTS THE COLLATERAL AGENT AN IRREVOCABLE PROXY (WHICH IRREVOCABLE PROXY SHALL CONTINUE IN EFFECT UNTIL SUCH EVENT OF DEFAULT SHALL HAVE BEEN CURED OR WAIVED) EXERCISABLE UNDER SUCH CIRCUMSTANCES, TO, SUBJECT TO THE INTERCREDITOR AGREEMENT, VOTE THE PLEDGED SHARES, PLEDGED INTERESTS, INVESTMENT PROPERTY AND SUCH OTHER COLLATERAL; AND"
"Section4.1 (e), each Grantor shall be entitled to receive and retain all Distributions permitted by the Credit Agreement and shall have the exclusive voting power, and is granted a proxy, with respect to any Equity Interests (including any of the Pledged Shares and other Pledged Interests) constituting Collateral. The Collateral Agent shall, upon the written request of any Grantor, promptly deliver such proxies and other documents, if any, as shall be reasonably requested by such Grantor which are necessary to allow such Grantor to exercise that voting power with respect to any such Equity Interests (including any of the Pledged Shares and other Pledged Interests) constituting Collateral; provided, however, that no vote shall be cast, or consent, waiver, or ratification given, or action taken by such Grantor that would violate any provision of the Credit Agreement or any other Loan Document (including this Security Agreement)."
"(b)Subject to the terms of the Intercreditor Agreement and the provisions of applicable Legal Requirements, upon (i)the occurrence and continuance of an Event of Default and (ii)the delivery of written notice by the Collateral Agent (or First Lien Administrative Agent) to each Grantor, all Proceeds of Collateral received by any Grantor shall be delivered in kind 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) for deposit in a Deposit Account of such Grantor (A)maintained with the Collateral Agent or (B)maintained at a depositary bank that is a Lender other than the Collateral Agent to which such Grantor, the Collateral Agent and the depositary bank have entered into a Control Agreement in form and substance reasonably acceptable to the Collateral Agent in its sole discretion providing that the depositary bank will comply with the instructions originated by the Collateral Agent directing disposition of the funds in the account without further consent by such Grantor (any such Deposit Accounts, together with any other Accounts pursuant to which any portion of the Collateral is deposited with the Collateral Agent, a Collateral Account, and collectively, the Collateral Accounts), and such Grantor shall not commingle any such Proceeds, and shall hold separate and apart from all other Property, all such Proceeds in express trust for the benefit of the Collateral Agent until delivery thereof is made to the Collateral Agent."
"(d)With respect to each of the Collateral Accounts, it is hereby confirmed and agreed that (i)deposits in such Collateral Accounts are subject to a security interest as contemplated hereby, (ii)such Collateral Accounts shall be under the control of the Collateral Agent (or the First Lien Administrative Agent in accordance with the terms of the Intercreditor Agreement), provided that the Collateral Agent shall have entered into a Control Agreement with respect to any Accounts that are maintained with a bank other than the Collateral Agent and (iii)subject to the Intercreditor Agreement, the Collateral Agent shall have the sole right of withdrawal over such Collateral Accounts; provided that withdrawals shall only be made during the existence of an Event of Default."
"(b)At any time following the occurrence and during the continuance of an Event of Default, whether before or after the maturity of any of the Obligations, the Collateral Agent may (subject to the terms of the Intercreditor Agreement)(i) revoke any or all of the rights of any Grantor set forth in clause (a)of this Section4.4, (ii) notify any parties obligated on any of the Collateral to make payment to the Collateral Agent of any amounts due or to become due thereunder, and (iii)enforce collection of any of the Collateral by suit or otherwise and surrender, release, or exchange all or any part thereof, or compromise or extend or renew for any period (whether or not longer than the original period) any indebtedness thereunder or evidenced thereby."
"Trademark Collateral, (E)use any of the Trademark Collateral registered with any federal, state or foreign authority except for the uses for which registration or application for registration of all of the Trademark Collateral has been made, or (F)do or permit any act or knowingly omit to do any act whereby any of the Trademark Collateral may lapse or become invalid or unenforceable, or (ii)do or permit any act or knowingly omit to do any act whereby any of the Copyright Collateral or any of the Trade Secrets Collateral may lapse or become invalid or unenforceable or placed in the public domain except upon expiration of the end of an unrenewable term of a registration thereof, unless, in the case of any of the foregoing requirements in clauses (b)(i) and (b)(ii) above, the failure to do so, could not reasonably be expected to, individually or in the aggregate, result in a Material Adverse Change."
"(a)Each Grantor, by granting a security interest in its Letter of Credit Rights to the Collateral Agent, intends to (and hereby does) collaterally assign to the Collateral Agent its rights (including its contingent rights) to the Proceeds of all Letter of Credit Rights of which it is or hereafter becomes a beneficiary or assignee. Within thirty (30)days following the date on which any Grantor obtains any Letter of Credit Rights in excess of $250,000 in the aggregate after the date hereof, such Grantor shall (i)deliver a supplement to Schedule II identifying such new Letter of Credit Right and (ii)cause the issuer of each such Letter of Credit and each nominated person (if any) with respect thereto to consent to such assignment of the Proceeds thereof in a consent agreement in form and substance reasonably satisfactory to the Collateral Agent and deliver written evidence of such consent to the Collateral Agent."
"SECTION 4.8.As to Commercial Tort Claims. Each Grantor covenants and agrees that, until the Termination Date, with respect to any Commercial Tort Claims seeking damages in excess of $250,000 in the aggregate hereafter arising, it shall deliver 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), within thirty (30)days after such Commercial Tort Claim arises, a supplement to Schedule II in form and substance reasonably satisfactory to the Collateral Agent, identifying such new Commercial Tort Claims."
"SECTION 4.10.Trade Secrets. With respect to any patent applications in preparation for filing that comprise Trade Secrets Collateral, Grantor shall have the right to assert its attorney-client privilege in such applications and not to disclose such applications unless and until an Event of Default has occurred and is continuing. If an Event of Default has occurred and is continuing, then at the request of the Collateral Agent, the Grantors shall deliver 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) any patent applications in preparation for filing and all documents and things embodying, incorporating or referring to inventions that in any way relate to such patent application."
"(c)Each Grantor agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Goods, Computer Hardware and Software Collateral, or Intellectual Property Collateral may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that the following shall be deemed a reasonable commercial disposition: (i)a disposition made in the usual manner on any recognized market, (ii)a disposition at the price current in any recognized market at the time of disposition, and (iii)a disposition in conformity with reasonable commercial practices among dealers in the type of Property subject to the disposition."
"(e)The Collateral Agent may do any or all of the following: (i)transfer all or any part of the Collateral into the name of the Collateral Agent or its nominee, with or without disclosing that such Collateral is subject to the Lien hereunder, (ii)notify the parties obligated on any of the Collateral to make payment to the Collateral Agent of any amount due or to become due thereunder, (iii)withdraw, or cause or direct the withdrawal, of all funds with respect to the Collateral Account, (iv)enforce collection of any of the Collateral by suit or otherwise, and surrender, release or exchange all or any part thereof, or compromise or extend or renew for any period (whether or not longer than the original period) any obligations of any nature of any party with respect thereto, (v)endorse any checks, drafts, or other writings in the applicable Grantors name to allow collection of the Collateral, (vi)take control of any Proceeds of the Collateral, or (vii)execute (in the name, place and stead of the applicable Grantor) endorsements, assignments, stock powers and other instruments of conveyance or transfer with respect to all or any of the Collateral."
"BECOME SUBJECT OR THAT MAY BE INCURRED BY OR ASSERTED OR AWARDED AGAINST SUCH INDEMNITEE BY ANY PERSON (INCLUDING HOLDINGS, THE BORROWER, ANY SUBSIDIARY OR ANY AFFILIATE THEREOF), IN EACH CASE ARISING OUT OF OR IN CONNECTION WITH OR BY REASON OF (INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH ANY INVESTIGATION, LITIGATION, OR PROCEEDING OR PREPARATION OF A DEFENSE IN CONNECTION THEREWITH)(I) THE EXECUTION OR DELIVERY OF ANY LOAN DOCUMENT, OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED THEREBY, THE PERFORMANCE BY THE PARTIES HERETO OR THERETO OF THEIR RESPECTIVE OBLIGATIONS HEREUNDER OR THEREUNDER OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, (II)ANY ADVANCE OR THE USE OR PROPOSED USE OF THE PROCEEDS THEREFROM, (III)ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE OR THREATENED RELEASE OF HAZARDOUS MATERIALS ON, AT, UNDER OR FROM ANY PROPERTY OWNED, LEASED OR OPERATED BY HOLDINGS, THE BORROWER OR ANY SUBSIDIARY OR AFFILIATE THEREOF, OR ANY ENVIRONMENTAL CLAIM RELATED IN ANY WAY TO HOLDINGS, THE BORROWER OR ANY SUBSIDIARY OR AFFILIATE THEREOF AT ANY TIME, (IV)ANY ACTUAL OR PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY, WHETHER BROUGHT BY A THIRD PARTY OR BY HOLDINGS, THE BORROWER OR ANY SUBSIDIARY OR AFFILIATE THEREOF, AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO, OR (V)ANY CLAIM (INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL CLAIMS), INVESTIGATION, LITIGATION OR OTHER PROCEEDING (WHETHER OR NOT THE COLLATERAL AGENT, ANY LENDER OR THE ADMINISTRATIVE AGENT IS A PARTY THERETO) AND THE PROSECUTION AND DEFENSE THEREOF, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE ADVANCES, ANY LOAN DOCUMENT, OR ANY DOCUMENTS CONTEMPLATED BY OR REFERRED TO HEREIN OR THEREIN OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (AND IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF SUCH INDEMNITEE); 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 NON-APPEALABLE JUDGMENT (A)TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE, (B)TO HAVE RESULTED FROM A CLAIM BROUGHT BY THE BORROWER AGAINST ANY INDEMNITEE OF ANY MATERIAL BREACH IN BAD FAITH OF SUCH INDEMNITEES FUNDING OBLIGATIONS UNDER THE CREDIT AGREEMENT, OR (C)ARE ON ACCOUNT OF A DISPUTE ARISING SOLELY AMONG INDEMNITEES (OTHER THAN THE COLLATERAL AGENT IN ITS ROLE AS SUCH) TO THE EXTENT SUCH DISPUTE DOES NOT INVOLVE AND"
"IS NOT RELATED TO ANY ACT, OMISSION OR REPRESENTATION ON THE PART OF, OR ANY INFORMATION PROVIDED BY OR ON BEHALF OF, THE BORROWER, ANY GRANTOR OR AFFILIATES THEREOF. THIS INDEMNITY SHALL NOT APPLY WITH RESPECT TO TAXES OTHER THAN ANY TAXES THAT REPRESENT LOSSES, CLAIMS, DAMAGES, ETC. ARISING FROM ANY NON-TAX CLAIM. No Grantor shall, without the prior written consent of each Indemnitee affected thereby, settle any threatened or pending claim or action that would give rise to the right of any Indemnitee to claim indemnification hereunder unless such settlement (x)includes a full and unconditional release of all liabilities arising out of such claim or action against such Indemnitee, (y)does not include any statement as to or an admission of fault, culpability or failure to act by or on behalf of any Indemnitee, and (z)does not require any actions to be taken or refrained from being taken by any Indemnitee other than the execution of the related settlement agreement, if any."
"(c)Each Grantor will upon demand pay to the Collateral Agent and any legal counsel the amount of any and all documented out-of-pocket expenses, including the fees and disbursements of its counsels and of any experts and agents, which the Collateral Agent and any legal counsel may incur in connection (i)the enforcement (whether through negotiations, legal proceedings or otherwise) of this Security Agreement, (ii)the sale of, collection from, or other realization upon, any of the Collateral, (iii)the exercise or enforcement of any of the rights of the Collateral Agent and any legal counsel or any of the Secured Parties hereunder, or (iv)the failure by any Grantor to perform or observe any of the provisions hereof, in each case, subject to the limitations that may be provided in Section9.01 of the Credit Agreement."
"because so made. Each Grantor shall cooperate fully with the Collateral Agent in selling or realizing upon all or any part of the Pledged Property. In addition, each Grantor shall fully comply with the securities laws of the United States, the State of New York and other states and take such actions as may be necessary to permit the Collateral Agent to sell or otherwise dispose of any securities representing the Pledged Property in compliance with such Legal Requirements."
"SECTION 7.5.No Waiver. In addition to, and not in limitation of Section2.7, no failure on the part of any 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 right hereunder preclude any other or further exercise thereof or the exercise of any other right."
"or its nominee as a partner under the limited partnership agreement or as a member under the limited liability company agreement, in any case, as heretofore and hereafter amended, and (c)to the extent such Grantor is also a Pledged Interests Issuer, agrees to comply with instructions with respect to the applicable Pledged Interests originated by the Collateral Agent without further consent of any other Grantor if an Event of Default has occurred and is continuing. Furthermore, each Grantor as the holder of any Equity Interests that constitute Collateral in a Pledged Interests Issuer, hereby (i)waives all rights of first refusal, rights to purchase, and rights to consent to transfer (to any Secured Party or to any purchaser resulting from the exercise of a Secured Partys remedy provided hereunder or under applicable Legal Requirement) and (ii)if required by the organizational documents of such Pledged Interests Issuer, agrees to cause such Pledged Interests Issuer to register the Lien granted hereunder and encumbering such Equity Interests that constitute Collateral in the registry books of such Pledged Interests Issuer."
"SECTION7.15.Intercreditor Agreement. Each Person that is secured hereunder, by accepting the benefits of the security provided hereby, (i)consents (or is deemed to consent), to the subordination of Liens in favor of the First Lien Administrative Agent as provided for in the Intercreditor Agreement, (ii)agrees (or is deemed to agree) that it will be bound by, and will take no actions contrary to, the provisions of the Intercreditor Agreement and (iii)authorizes (or is"
"deemed to authorize) and instructs (or is deemed to instruct) the Collateral Agent on behalf of such Person to enter into, and perform under, the Intercreditor Agreement as Second Lien Collateral Agent (as defined in the Intercreditor Agreement). The foregoing provisions are intended as an inducement to the lenders under the First Lien Credit Agreement to extend credit to the Borrower and the Grantors, and such lenders are intended third party beneficiaries of this provision and the provisions of the Intercreditor Agreement. In the event of any conflict between the Intercreditor Agreement and this Security Agreement, the terms of the Intercreditor Agreement shall govern and control."
"A.Reference is made to that certain Credit Agreement, dated as of September29, 2017 (as amended, supplemented, amended and restated or otherwise modified from time to time, the Credit Agreement), among the Borrower, Holdings, the lenders party thereto from time to time, and Jefferies Finance LLC, as the administrative agent and collateral agent."
"D.[Furthermore, pursuant to Section5.08 of the Credit Agreement, the equity holder of each Subsidiary of Holdings that was not in existence on the date of the Credit Agreement is required to enter into the Security Agreement as a Grantor, or supplement its Collateral (as defined in the Security Agreement), to pledge the equity of such new Subsidiary. [Equity holder of new Subsidiary] (the Existing Grantor; and together with the New Grantor, each a Specific Grantor and, collectively, the Specific Grantors), is executing this Supplement in accordance with the requirements of the Credit Agreement to supplement its Collateral under the Security Agreement.]"
"SECTION3.In accordance with Section7.11 of the Security Agreement, the New Grantor by its signature below becomes a Grantor under the Security Agreement with the same force and effect as if originally named therein as a Grantor and the New Grantor hereby agrees (a)to all the terms and provisions of the Security Agreement applicable to it as a Grantor thereunder and (b)represents and warrants that the representations and warranties made by it as a Grantor thereunder are true and correct in all material respects (unless already qualified by materiality or Material Adverse Change in the text thereof, in which case, such representations and warranties shall be true and correct in all respects) on and as of the date hereof. In furtherance of the foregoing, the New Grantor, as security for the payment and performance in full of the Obligations (as defined in the Security Agreement), does hereby create and grant to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, their successors and assigns as provided in the Security Agreement, a continuing security interest in and Lien on all of the New Grantors right, title and interest in and to the Collateral (as defined in the Security Agreement) of the New Grantor. Each reference to a Grantor in the Security Agreement shall be deemed to include the New Grantor. The Security Agreement is hereby incorporated herein by reference."
"Acquisition means (a) the purchase or other acquisition by a Person or its Subsidiaries of all or substantially all of the assets of (or any division or business line of) any other Person, or (b) the purchase or other acquisition (whether by means of a merger, consolidation, or otherwise) by a Person or its Subsidiaries of all of the Equity Interests of any other Person."
"Application Event means the occurrence of (a) a failure by Borrowers to repay all of the Obligations in full on the Maturity Date, or (b) an Event of Default has occurred and is continuing and the election by Agent or the Required Lenders to require that payments and proceeds of Collateral be applied pursuant to Section 2.4(b)(iii) of this Agreement."
"Authorized Person means any one of the individuals identified as an officer of a Borrower on Schedule A-2 to this Agreement (as updated from time to time by written notice from the Administrative Borrower to Agent), or any other individual identified by Administrative Borrower as an authorized person and authenticated through Agents electronic platform or portal in accordance with its procedures for such authentication."
"Bank Product Provider means any Lender or any of its Affiliates, including each of the foregoing in its capacity, if applicable, as a Hedge Provider; provided, that no such Person (other than Wells Fargo or its Affiliates) shall constitute a Bank Product Provider with respect to a Bank Product unless and until Agent receives a Bank Product Provider Agreement from such Person (a) on or prior to the Closing Date (or such later date as Agent shall agree to in writing in its sole discretion) with respect to Bank Products provided on or prior to the Closing Date, or (b) on or prior to the date that is 10 Business Days after the provision of such Bank Product to a Loan Party or its Subsidiaries (or such later date as Agent shall agree to in writing in its sole discretion) with respect to Bank Products provided after the Closing Date; provided further, that if, at any time, a Lender ceases to be a Lender under this Agreement (prior to the payment in full of the Obligations), then, from and after the date on which it so ceases to be a Lender thereunder, neither it nor any of its Affiliates shall constitute Bank Product Providers and the obligations with respect to Bank Products provided by such former Lender or any of its Affiliates shall no longer constitute Bank Product Obligations."
"Business Day means any day that is not a Saturday, Sunday, or other day on which banks are authorized or required to close in the state of New York, except that, if a determination of a Business Day shall relate to a LIBOR Rate Loan, the term Business Day also shall exclude any day on which banks are closed for dealings in Dollar deposits in the London interbank market."
"Cash Dominion Event means at any time (a) Excess Availability is less than the greater of (i) $37,500,000, and (ii) the amount equal to 12.5% of the Line Cap for three (3) consecutive Business Days, (b) Excess Availability is less than the greater of (i) $30,000,000 and (ii) 10% of the Line Cap, or (c) an Event of Default exists or has occurred and is continuing; provided, that,"
"Change in Law means the occurrence after the date of this Agreement of: (a) the adoption or effectiveness of any law, rule, regulation, judicial ruling, judgment or treaty, (b) any change in any law, rule, regulation, judicial ruling, judgment or treaty or in the administration, interpretation, implementation or application by any Governmental Authority of any law, rule, regulation, guideline or treaty, or (c) the making or issuance by any Governmental Authority of any request, rule, guideline or directive, whether or not having the force of law; provided, that notwithstanding anything in this Agreement to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith, and (ii) all requests, rules, guidelines or directives concerning capital adequacy promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities shall, in each case, be deemed to be a Change in Law, regardless of the date enacted, adopted or issued."
"Dilution means, as of any date of determination, a percentage, based upon the experience of the immediately prior six months, that is the result of dividing the Dollar amount of (a) bad debt write-downs, discounts, advertising allowances, credits, or other dilutive items with respect to Borrowers Accounts during such period, by (b) Borrowers billings with respect to Accounts during such period."
"Disqualified Equity Interests means any Equity Interests that, by their terms (or by the terms of any security or other Equity Interests into which they are convertible or for which they are exchangeable), or upon the happening of any event or condition (a) matures or are mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (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 Obligations that are accrued and payable and the termination of the Commitments), (b) are redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) provide for the scheduled payments of dividends in cash, or (d) are or become convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is 180 days after the Maturity Date."
"(h) Accounts with respect to which the Account Debtor is a creditor of a Borrower, has or has asserted a right of recoupment or setoff, or has disputed its obligation to pay all or any portion of the Account, to the extent of such claim, right of recoupment or setoff, or dispute,"
"(o) Accounts (i) that represent the right to receive progress payments or other advance billings that are due prior to the completion of performance by the applicable Borrower of the subject contract for goods or services, or (ii) that represent credit card sales in excess of $2,500,000 at any one time outstanding, unless the criteria for Eligible Credit Card Receivables has been satisfied; or"
"The criteria for Eligible Domestic In-Transit Inventory set forth above may only be changed and any new criteria for Eligible Domestic In-Transit Inventory may only be established by Agent in its Permitted Discretion and based on either: (x) an event, condition or other circumstance arising after the Closing Date, or (y) an event, condition or other circumstance existing on the Closing Date to the extent Agent has no written notice thereof from a Borrower or other actual knowledge prior to the Closing Date, in either case under clause (x) or (y) which adversely affects or could reasonably be expected to adversely affect the Eligible Domestic In-Transit Inventory as determined by the Agent in its Permitted Discretion. Any Inventory which is not Eligible Domestic In-Transit Inventory shall nevertheless be part of the Collateral."
"(ii) is the subject of a negotiable forwarders cargo receipt governed by the laws of a state within the United States and is not the subject of a bill of lading (other than a negotiable bill of lading consigned to, and in the possession of, a consolidator or Agent, or their respective agents) and such negotiable cargo receipt on its face indicates the name of the Freight Forwarder as a carrier or multimodal transport operator and has been signed or otherwise authenticated by it in such capacity or as a named agent for or on behalf of the carrier or multimodal transport operator, in any case respecting such Inventory (x) consigned to Agent or one of its Freight Forwarders that is handling the importing, shipping and delivery of such Inventory (either directly or by means of endorsements), (y) that was issued by a consolidator respecting the subject Inventory, and (z) that is in the possession of Agent or a Freight Forwarder (in each case in the continental United States),"
"or the grant of such security interest becomes 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 guaranty or security interest is or becomes illegal."
"Federal Funds Rate means, for any period, a fluctuating interest rate per annum equal to, for each day during such period, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, 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 which is a Business Day, the average of the quotations for such day on such transactions received by Agent from three Federal funds brokers of recognized standing selected by it (and, if any such rate is below zero, then the rate determined pursuant to this definition shall be deemed to be zero)."
Freight Forwarders means Qualified Bailees which are reasonably acceptable to Agent to handle the receipt of Inventory within the United States or to clear Inventory through the Bureau of Customs and Border Protection or other domestic or foreign export control authorities or otherwise perform port of entry services to process Inventory imported by a Borrower from outside the United States (such persons sometimes being referred to
"herein individually as a Freight Forwarder), provided, that, as to each such person, (a) Agent shall have received a freight forwarder agreement by such person in favor of Agent (in form and substance satisfactory to Agent in its Permitted Discretion) duly authorized, executed and delivered by such person, (b) such agreement shall be in full force and effect and (c) such person shall be in compliance in all material respects with the terms thereof."
"Governmental Authority means the government of any nation or any political subdivision thereof, whether at the national, state, territorial, provincial, county, municipal or any other level, 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 any supra-national bodies such as the European Union or the European Central Bank)."
"Interest Expense means, for any period, as to any Person and its Subsidiaries, all of the following as determined in accordance with GAAP, total interest expense, whether paid or accrued (including the interest component of Capital Leases for such period), including, without limitation, all bank fees, commissions, discounts and other fees and charges owed with respect to letters of credit, bankers acceptances or similar instruments and all amounts paid or accrued in connection with Hedging Transactions, but excluding (a) amortization of discount and amortization of deferred financing fees and closing costs paid in cash in connection with the transactions contemplated hereby, (b) interest paid in property other than cash, (c) any other interest expense not payable in cash and (d) any amounts received in connection with Hedging Transactions."
"Investment means, with respect to any Person, any investment by such Person in any other Person (including Affiliates) in the form of loans, guarantees, advances, capital contributions (excluding (a) commission, travel, and similar advances to officers and employees of such Person made in the ordinary course of business, and (b) bona fide accounts receivable arising in the ordinary course of business), or acquisitions of Indebtedness, Equity Interests, or all or substantially all of the assets of such other Person (or of any division or business line of such other Person), and any other items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, minus at Administrative Borrowers option, all capital returned with respect to such Investment, in each case without any adjustment for increases or decreases in value, or write-ups, write-downs, or write-offs with respect to such Investment."
"Letter of Credit Collateralization means either (a) providing cash collateral (pursuant to documentation reasonably satisfactory to Agent (including that Agent has a first priority perfected Lien in such cash collateral), including provisions that specify that the Letter of Credit Fees and all commissions, fees, charges and expenses provided for in Section 2.11(k) of this Agreement (including any fronting fees) will continue to accrue while the Letters of Credit are outstanding) to be held by Agent for the benefit of the Revolving Lenders in an amount equal to 105% of the then existing Letter of Credit Usage, (b) delivering to Agent documentation executed by all beneficiaries under the Letters of Credit, in form and substance reasonably satisfactory to Agent and Issuing Bank, terminating all of such beneficiaries rights under the Letters of Credit, or (c) providing Agent with a standby letter of credit, in form and substance reasonably satisfactory to Agent, from a commercial bank acceptable to Agent (in its sole discretion) in an amount equal to 105% of the then existing Letter of Credit Usage (it being understood that the Letter of Credit Fee and all fronting fees set forth in this Agreement will continue to accrue while the Letters of Credit are outstanding and that any such fees that accrue must be an amount that can be drawn under any such standby letter of credit)."
"Agreement, the Trademark Security Agreement, the Motor Vehicle Collateral Agency Agreement, any note or notes executed by Borrowers in connection with this Agreement and payable to any member of the Lender Group, and any other instrument or agreement entered into, now or in the future, by any Loan Party or any of its Subsidiaries and any member of the Lender Group in connection with this Agreement (but specifically excluding Bank Product Agreements)."
"(c) with respect to any SPE Qualified Property Sale, the amount of cash proceeds received (directly or indirectly) from time to time (whether as initial consideration or through the payment of deferred consideration) by or on behalf of such SPE Propco, in connection therewith after deducting therefrom only (i) the amount of any Indebtedness secured by such SPE Propco which is required to be, and is, repaid in connection with such sale or disposition, (ii) reasonable fees, commissions, and expenses related thereto and required to be paid by or on behalf of such SPE Propco in connection with such sale or disposition, (iii) taxes paid or payable to any taxing authorities by or on behalf of such SPE Propco or Parent in connection with such sale or disposition, and are properly attributable to such transaction, and (iv) all amounts that are set aside as a reserve (A) for adjustments in respect of the purchase price of such assets, (B) for any liabilities associated with such sale or casualty, to the extent such reserve is required by GAAP, and (C) for the payment of unassumed liabilities relating to the assets sold or otherwise disposed of at the time of, or within 30 days after, the date of such sale or other disposition."
"contingent), premiums, liabilities (including all amounts charged to the Loan Account pursuant to this Agreement), obligations (including indemnification obligations), fees (including the fees provided for in the Fee Letter), Lender Group Expenses (including any fees or expenses that accrue after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), guaranties, and all covenants and duties of any other kind and description owing by any Loan Party arising out of, under, pursuant to, in connection with, or evidenced by this Agreement or any of the other Loan Documents and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all interest not paid when due and all other expenses or other amounts that any Loan Party is required to pay or reimburse by the Loan Documents or by law or otherwise in connection with the Loan Documents, and (b) all Bank Product Obligations; provided that, anything to the contrary contained in the foregoing notwithstanding, the Obligations shall exclude any Excluded Swap Obligation. Without limiting the generality of the foregoing, the Obligations of Borrowers under the Loan Documents include the obligation to pay (i) the principal of the Revolving Loans, (ii) interest accrued on the Revolving Loans, (iii) the amount necessary to reimburse Issuing Bank for amounts paid or payable pursuant to Letters of Credit, (iv) Letter of Credit commissions, fees (including fronting fees) and charges, (v) Lender Group Expenses, (vi) fees payable under this Agreement or any of the other Loan Documents, and (vii) indemnities and other amounts payable by any Loan Party under any Loan Document. Any reference in this Agreement or in the Loan Documents to the Obligations shall include all or any portion thereof and any extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any Insolvency Proceeding."
"(ii) both (A) the Fixed Charge Coverage Ratio of the Loan Parties and their Subsidiaries is equal to or greater than 1.00:1.00 for the trailing 12 month period most recently ended for which financial statements are required to have been delivered to Agent pursuant to Schedule 5.1 to this Agreement (calculated on a pro forma basis as if such proposed payment is a Fixed Charge made on the last day of such 12 month period (it being understood that such proposed payment shall also be a Fixed Charge made on the last day of such 12 month period for purposes of calculating the Fixed Charge Coverage Ratio under this clause (ii) for any subsequent proposed payment to fund a Specific Transaction)), and (B) Excess Availability (1) at all times during the 30 consecutive days immediately preceding the date of such proposed payment and the consummation of such Specified Transaction, calculated on a pro forma basis as if such proposed payment was made, and the Specified Transaction was consummated, on the first day of such period, and (2) after giving effect to such proposed payment and Specified Transaction, in each case, is not less than the greater of (x) 17.5% of the Line Cap and (y) $52,500,000, and"
"PBGC Funding Waiver Documents means, collectively (as the same now exist or may hereafter exist upon the execution and delivery thereof and may hereafter or thereafter, as the case may be, be amended, modified, supplemented, extended, renewed, restated or replaced): (i) the PBGC Newtown Mortgage; (ii) the PBGC Funding Waiver Letter;(iii) the PBGC Escrow Agreement; and (iv) any agreement, document instrument executed and/or delivered by any Borrower or Guarantor in connection therewith."
"(g) the subject assets or Equity Interests, as applicable, are being acquired directly by a Borrower or one of its Subsidiaries that is a Loan Party, and, in connection therewith, the applicable Loan Party shall have complied with Section 5.11 or 5.12 of this Agreement, as applicable, and, in the case of an acquisition of Equity Interests, the Person whose Equity Interests are acquired shall become a Loan Party and the applicable Loan Party shall have demonstrated to Agent that the new Loan Parties have received consideration sufficient to make the joinder documents binding and enforceable against such new Loan Parties, and"
"(j) Indebtedness of any Borrower to sellers incurred as part of the purchase price in connection with any Permitted Acquisitions; provided, that, (i) the amount of such Indebtedness does not exceed $100,000,000 in the aggregate among all Borrowers at any one time outstanding; (ii) such Indebtedness is subordinated to the Obligations under terms and conditions reasonably satisfactory to Agent and (iii) the maturity date of such Indebtedness is greater than three months after the Maturity Date,"
"(q) (i) in the event that Parent or any of its Subsidiaries forms any Subsidiary in accordance with the terms hereof, the issuance by such Subsidiary of Equity Interests to Parent or such Subsidiary, as applicable, and (ii) any issuance of additional Equity Interests by a wholly-owned Subsidiary of a Person to such Person, in each case subject to compliance with Section 5.11, and"
"(f) purchase money Liens on Equipment (including the interests of lessors under Capital Leases) and Real Property to the extent that such Liens or interests secure Permitted Purchase Money Indebtedness and so long as (i) such Lien attaches only to the fixed asset purchased or acquired and the proceeds thereof, and (ii) such Lien only secures the Indebtedness that was incurred to acquire the fixed asset purchased or acquired or any Refinancing Indebtedness in respect thereof,"
"(a) such refinancings, renewals, or extensions do not result in an increase in the principal amount of the Indebtedness so refinanced, renewed, or extended, other than by the amount of premiums paid thereon and the fees and expenses incurred in connection therewith and by the amount of unfunded commitments with respect thereto,"
"(b) such refinancings, renewals, or extensions do not result in a shortening of the final stated maturity or the average weighted maturity (measured as of the refinancing, renewal, or extension) of the Indebtedness so refinanced, renewed, or extended, nor are they on terms or conditions that, taken as a whole, are or could reasonably be expected to be materially adverse to the interests of the Lenders,"
"Related 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 and that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender, or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender."
"Revolver Commitment means, with respect to each Revolving Lender, its Revolver Commitment, and, with respect to all Revolving Lenders, their Revolver Commitments, in each case as such Dollar amounts are set forth beside such Revolving Lenders name under the applicable heading on Schedule C-1 to this Agreement or in the Assignment and Acceptance or Increase Joinder pursuant to which such Revolving Lender became a Revolving Lender under this Agreement, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of this Agreement, and as such amounts may be decreased by the amount of reductions in the Revolver Commitments made in accordance with Section 2.4(c) hereof."
"Sanctions means individually and collectively, respectively, any and all economic sanctions, trade sanctions, financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes anti-terrorism laws and other sanctions laws, regulations or embargoes, including those imposed, administered or enforced from time to time by: (a) the United States of America, including those administered by OFAC, the U.S. Department of State, the U.S. Department of Commerce, or through any existing or future executive order, (b) the United Nations Security Council, (c) the European Union or any European Union member state, (d) Her Majestys Treasury of the United Kingdom, or (d) any other Governmental Authority with jurisdiction over any member of Lender Group or any Loan Party or any of their respective Subsidiaries or Affiliates."
"SPE Qualified Property Sale means, at any time when the Indebtedness for borrowed money arising from the Mortgage Loan has been paid in full and so long as no Indebtedness for borrowed money under any Mortgage Loan Financing is secured by any SPE Property, the sale or other disposition of any SPE Property."
"Date or in the application thereof on the operation of such provision (or if Agent notifies Administrative Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such Accounting Change or in the application thereof, then Agent and Borrowers agree that they will negotiate in good faith amendments to the provisions of this Agreement that are directly affected by such Accounting Change with the intent of having the respective positions of the Lenders and Borrowers after such Accounting Change conform as nearly as possible to their respective positions as of the date of this Agreement and, until any such amendments have been agreed upon and agreed to by the Required Lenders, the provisions in this Agreement shall be calculated as if no such Accounting Change had occurred. When used herein, the term financial statements shall include the notes and schedules thereto. Whenever the term Borrowers is used in respect of a financial covenant or a related definition, it shall be understood to mean Borrowers and their Subsidiaries on a consolidated basis, unless the context clearly requires otherwise. Notwithstanding anything to the contrary contained herein, (a) all financial statements delivered hereunder shall be prepared, and all financial covenants contained herein shall be calculated, without giving effect to any election under the Statement of Financial Accounting Standards Boards Accounting Standards Codification Topic 825 (or any similar accounting principle) permitting a Person to value its financial liabilities or Indebtedness at the fair value thereof, and (b) the term unqualified opinion as used herein to refer to opinions or reports provided by accountants shall mean an opinion or report that is (i) unqualified, and (ii) does not include any explanation, supplemental comment, or other comment concerning the ability of the applicable Person to continue as a going concern or concerning the scope of the audit; provided, that it shall not be a violation of this clause (b) if the opinion or report accompanying the financial statements for the fiscal year ending immediately prior to the stated final maturity date of the Loans is subject to a going concern qualification that is solely as a result of an impending stated final maturity date under this Agreement."
"(B) the amount equal to (1) the Borrowing Base as of such date (based upon the most recent Borrowing Base Certificate delivered by Borrowers to Agent, as adjusted for Reserves established by Agent in accordance with Section 2.1(c)), less (2) the sum of the Letter of Credit Usage at such time."
"(b) Amounts borrowed pursuant to this Section 2.1 may be repaid and, subject to the terms and conditions of this Agreement, reborrowed at any time during the term of this Agreement. The outstanding principal amount of the Revolving Loans, together with interest accrued and unpaid thereon, shall constitute Obligations and shall be due and payable on the Maturity Date or, if earlier, on the date on which they otherwise become due and payable pursuant to the terms of this Agreement."
"(c) Anything to the contrary in this Section 2.1 notwithstanding, Agent shall have the right (but not the obligation) at any time, in the exercise of its Permitted Discretion, to establish and increase or decrease Reserves and against the Borrowing Base or the Maximum Revolver Amount. The amount of any Reserve established by Agent, and any changes to the eligibility criteria set forth in the definitions of Eligible Accounts, Eligible Inventory, Eligible Domestic In-Transit Inventory, Eligible International In-Transit Inventory and Eligible"
(A) such Defaulting Lenders Letter of Credit Exposure shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares but only to the extent (x) the sum of all Non-Defaulting Lenders Pro Rata Share of Revolver Usage plus such Defaulting Lenders Letter of Credit Exposure does not exceed the total of all Non-Defaulting Lenders Revolver Commitments and (y) the conditions set forth in Section 3.2 are satisfied at such time;
"(i) Except as otherwise expressly provided herein, all payments by Borrowers shall be made to Agents Account for the account of the Lender Group and shall be made in immediately available funds, no later than 1:30 p.m. on the date specified herein. Any payment received by Agent later than 1:30 p.m. shall be deemed to have been received (unless Agent, in its sole discretion, elects to credit it on the date received) on the following Business Day and any applicable interest or fee shall continue to accrue until such following Business Day."
"(ii) Unless Agent receives notice from Borrowers prior to the date on which any payment is due to the Lenders that Borrowers will not make such payment in full as and when required, Agent may assume that Borrowers have made (or will make) such payment in full to Agent on such date in immediately available funds and Agent may (but shall not be so required), in reliance upon such assumption, distribute to each Lender on such due date an amount equal to the amount then due such Lender. If and to the extent Borrowers do not make such payment in full to Agent on the date when due, each Lender severally shall repay to Agent on demand such amount distributed to such Lender, together with interest thereon at the Defaulting Lender Rate for each day from the date such amount is distributed to such Lender until the date repaid."
"(v) In each instance, so long as no Application Event has occurred and is continuing, Section 2.4(b)(ii) shall not apply to any payment made by Borrowers to Agent and specified by Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement or any other Loan Document."
"(e) Computation. All interest and fees chargeable under the Loan Documents shall be computed on the basis of a 360 day year (or 365 or 366 days, as the case may be, in the case of Revolving Loans for which the Base Rate is used), in each case, for the actual number of days elapsed in the period during which the interest or fees accrue. In the event the Base Rate is changed from time to time hereafter, the rates of interest hereunder based upon the Base Rate automatically and immediately shall be increased or decreased by an amount equal to such change in the Base Rate."
"(a) Subject to the terms and conditions of this Agreement, upon the request of Borrowers made in accordance herewith, and prior to the Maturity Date, Issuing Bank agrees to issue a requested standby Letter of Credit or a sight commercial Letter of Credit for the account of Borrowers. By submitting a request to Issuing Bank for the issuance of a Letter of Credit, Borrowers shall be deemed to have requested that Issuing Bank issue the requested Letter of Credit. Each request for the issuance of a Letter of Credit, or the amendment, renewal, or extension of any outstanding Letter of Credit, shall be (i) irrevocable and made in writing by an Authorized Person, (ii) delivered to Agent and Issuing Bank via telefacsimile or other electronic method of transmission reasonably acceptable to Agent and Issuing Bank and reasonably in advance of the requested date of issuance, amendment,"
"renewal, or extension, and (iii) subject to Issuing Banks authentication procedures with results satisfactory to Issuing Bank. Each such request shall be in form and substance reasonably satisfactory to Agent and Issuing Bank and (i) shall specify (A) the amount of such Letter of Credit, (B) the date of issuance, amendment, renewal, or extension of such Letter of Credit, (C) the proposed expiration date of such Letter of Credit, (D) the name and address of the beneficiary of the Letter of Credit, and (E) such other information (including, the conditions to drawing, and, in the case of an amendment, renewal, or extension, identification of the Letter of Credit to be so amended, renewed, or extended) as shall be necessary to prepare, amend, renew, or extend such Letter of Credit, and (ii) shall be accompanied by such Issuer Documents as Agent or Issuing Bank may request or require, to the extent that such requests or requirements are consistent with the Issuer Documents that Issuing Bank generally requests for Letters of Credit in similar circumstances. Issuing Banks records of the content of any such request will be conclusive. Anything contained herein to the contrary notwithstanding, Issuing Bank may, but shall not be obligated to, issue a Letter of Credit that supports the obligations of a Loan Party or one of its Subsidiaries in respect of (x) a lease of real property, or (y) an employment contract."
"(f) Each Borrower agrees to indemnify, defend and hold harmless each member of the Lender Group (including Issuing Bank and its branches, Affiliates, and correspondents) and each such Persons respective directors, officers, employees, attorneys and agents (each, including Issuing Bank, a Letter of Credit Related Person) (to the fullest extent permitted by law) from and against any and all claims, demands, suits, actions, investigations, proceedings, liabilities, fines, costs, penalties, and damages, and all reasonable fees and disbursements of attorneys, experts, or consultants and all other documented costs and expenses actually incurred in connection therewith or in connection with the enforcement of this indemnification (as and when they are incurred and irrespective of whether suit is brought), which may be incurred by or awarded against any Letter of Credit Related Person (other than Taxes, which shall be governed by Section 16) (the Letter of Credit Indemnified Costs), and which arise out of or in connection with, or as a result of this Agreement, any Letter of Credit, any Issuer Document, or any Drawing Document referred to in or related to any Letter of Credit, or any action or proceeding arising out of any of the foregoing (whether administrative, judicial or in connection with arbitration); in each case, including that resulting from the Letter of Credit Related Persons own negligence; provided, that such indemnity shall not be available to any Letter of Credit Related Person claiming indemnification to the extent that such Letter of Credit Indemnified Costs may be finally determined in a final, non- appealable judgment of a court of competent jurisdiction to have resulted directly from the gross negligence or willful misconduct of the Letter of Credit Related Person claiming indemnity. This indemnification provision shall survive termination of this Agreement and all Letters of Credit."
"(g) The liability of Issuing Bank (or any other Letter of Credit Related Person) under, in connection with or arising out of any 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 Borrowers that are caused directly by Issuing Banks gross negligence or willful misconduct in (i) honoring a presentation under a Letter of Credit that on its face"
"(iii) acceptance as a draft of any written or electronic demand or request for payment under a Letter of Credit, even if nonnegotiable or not in the form of a draft or notwithstanding any requirement that such draft, demand or request bear any or adequate reference to the Letter of Credit;"
"(iv) the identity or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness or legal effect of any Drawing Document (other than Issuing Banks determination that such Drawing Document appears on its face substantially to comply with the terms and conditions of the Letter of Credit);"
"(k) Borrowers shall pay promptly (but in any event within five Business Days) upon demand to Agent for the account of Issuing Bank as non-refundable fees, commissions, and charges (it being acknowledged and agreed that any charging of such fees, commissions, and charges 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 Section 2.11(k)): (i) a fronting fee which shall be imposed by Issuing Bank equal to 0.125% per annum times the average"
"(n) If (i) any Event of Default shall occur and be continuing, or (ii) Availability shall at any time be less than zero, then on the Business Day following the date when the Administrative Borrower receives notice from Agent or the Required Lenders (or, if the maturity of the Obligations has been accelerated, Revolving Lenders with Letter of Credit Exposure representing greater than 50% of the total Letter Credit Exposure) demanding Letter of Credit Collateralization pursuant to this Section 2.11(n) upon such demand, Borrowers shall provide Letter of Credit Collateralization with respect to the then existing Letter of Credit Usage. If Borrowers fail to provide Letter of Credit Collateralization as required by this Section 2.11(n), the Revolving Lenders may (and, upon direction of Agent, shall) advance, as Revolving Loans the amount of the cash collateral required pursuant to the Letter of Credit Collateralization provision so that the then existing Letter of Credit Usage is cash collateralized in accordance with the Letter of Credit Collateralization provision (whether or not the Revolver Commitments have terminated, an Overadvance exists or the conditions in Section 3 are satisfied)."
"(i) The LIBOR Rate may be adjusted by Agent with respect to any Lender on a prospective basis to take into account any additional or increased costs to such Lender of maintaining or obtaining any eurodollar deposits or increased costs (other than Taxes which shall be governed by Section 16), in each case, due to changes in applicable law occurring subsequent to the commencement of the then applicable Interest Period, including any Changes in Law and changes in the reserve requirements imposed by the Board of Governors, which additional or increased costs would increase the cost of funding or maintaining loans bearing interest at the LIBOR Rate. In any such event, the affected Lender shall give Borrowers and Agent written notice (which shall include a certificate setting forth the basis for adjusting such LIBOR Rate and the method for determining the amount of such adjustment) of such a determination and adjustment and Agent promptly shall transmit the notice to each other Lender and, upon its receipt of the notice from the affected Lender, Borrowers may, by notice to such affected Lender (A) require such Lender to furnish to Borrowers a statement setting forth in reasonable detail the basis for adjusting such LIBOR Rate and the method for determining the amount of such adjustment, or (B) repay the LIBOR Rate Loans of such Lender with respect to which such adjustment is made (together with any amounts due under Section 2.12(b)(ii)). Notwithstanding the foregoing Borrowers shall not be required to compensate any Lender pursuant to this Section 2.12(d) for such additional or increased costs incurred more than 180 days prior to the date that such Lender delivers such certificate; provided, that if the change in applicable law giving rise to such additional or increased costs is retroactive then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof."
"(b) If Issuing Bank or any Lender requests additional or increased costs referred to in Section 2.11(l) or Section 2.12(d)(i) or amounts under Section 2.13(a) or sends a notice under Section 2.12(d)(ii) relative to changed circumstances (such Issuing Bank or Lender, an Affected Lender), then, at the request of Administrative Borrower, such Affected Lender shall use reasonable efforts to promptly designate a different one of its lending offices or to assign its rights and obligations hereunder to another of its offices or branches, if (i) in the reasonable judgment of such Affected Lender, such designation or assignment would eliminate or reduce amounts payable pursuant to Section 2.11(l), Section 2.12(d)(i) or Section 2.13(a), as applicable, or would eliminate the illegality or impracticality of funding or maintaining LIBOR Rate Loans, and (ii) in the reasonable judgment of such Affected Lender, such designation or assignment would not subject it to any material unreimbursed cost or expense and would not otherwise be materially disadvantageous to it. Borrowers agree to pay all reasonable and documented out-of-pocket costs and expenses incurred by such Affected Lender in connection with any such designation or assignment. If, after such reasonable efforts, such Affected Lender does not so designate a different one of its"
"(h) Each Borrower hereby agrees that it will not enforce any of its rights that arise from the existence, payment, performance or enforcement of the provisions of this Section 2.15, including rights of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Agent, any other member of the Lender Group, or any Bank Product Provider against any Borrower, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from any Borrower, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right, unless and until such time as all of the Obligations have been paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to any Agent or any member of the Lender Group hereunder or under any of the Bank Product Agreements are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other"
"similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor. If any amount shall be paid to any Borrower in violation of the immediately preceding sentence, such amount shall be held in trust for the benefit of Agent, for the benefit of the Lender Group and the Bank Product Providers, and shall forthwith be paid to Agent to be credited and applied to the Obligations and all other amounts payable under this Agreement, whether matured or unmatured, in accordance with the terms of this Agreement, or to be held as Collateral for any Obligations or other amounts payable under this Agreement thereafter arising. Notwithstanding anything to the contrary contained in this Agreement, no Borrower may exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights against, and may not proceed or seek recourse against or with respect to any property or asset of, any other Borrower (the Foreclosed Borrower), including after payment in full of the Obligations, if all or any portion of the Obligations have been satisfied in connection with an exercise of remedies in respect of the Equity Interests of such Foreclosed Borrower whether pursuant to this Agreement or otherwise."
"(a) Each Loan Party and each of its Subsidiaries (other than any Immaterial Subsidiary) (i) is duly organized and existing and in good standing under the laws of the jurisdiction of its organization, (ii) is qualified to do business in any state where the failure to be so qualified could reasonably be expected to result in a Material Adverse Effect, and (iii) has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as proposed to be conducted, to enter into the Loan Documents to which it is a party and to carry out the transactions contemplated thereby."
"(a) Each Loan Document has been duly executed and delivered by each Loan Party that is a party thereto and is the legally valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its respective terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors rights generally."
"4.7 Compliance with Laws. No Loan Party nor any of its Subsidiaries (a) is in violation of any applicable laws, rules, regulations, executive orders, or codes (including Environmental Laws) that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect, or (b) is subject to or in default with respect to any final judgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect."
4.16 Governmental Regulation. No Loan Party nor any of its Subsidiaries is subject to regulation under the Federal Power Act or the Investment Company Act of 1940 or under any other federal or state statute or regulation which may limit its ability to incur Indebtedness or which may otherwise render all or any portion of the Obligations unenforceable. No Loan Party nor any of its Subsidiaries is a registered investment company or a company controlled by a registered investment company or a principal underwriter of a registered investment company as such terms are defined in the Investment Company Act of 1940.
"4.21 Eligible Accounts. As to each Account that is identified by Borrowers as an Eligible Account in a Borrowing Base Certificate submitted to Agent, such Account is not excluded as ineligible by virtue of one or more of the excluding criteria (other than any Agent-discretionary criteria) set forth in the definition of Eligible Accounts."
"4.22 Eligible Inventory. As to each item of Inventory that is identified by Borrowers as Eligible Inventory, Eligible Domestic In-Transit Inventory, Eligible International In-Transit Inventory or Eligible Re-Loan Inventory in a Borrowing Base Certificate submitted to Agent, such Inventory is not excluded as ineligible by virtue of one or more of the excluding criteria (other than any Agent-discretionary criteria) set forth in the definition of Eligible Inventory (in the case of Eligible In-Transit Inventory, after giving effect to any exclusions therefrom specified in the definition of Eligible In-Transit Inventory)."
"5.1 Financial Statements, Reports, Certificates. Borrowers (a) will deliver to Agent, with copies to each Lender, each of the financial statements, reports, and other items set forth on Schedule 5.1 to this Agreement no later than the times specified therein, (b) agree that no Subsidiary of Parent or a Loan Party will have a fiscal year different from that of Parent and the Loan Parties, (c) agree to maintain a system of accounting that enables Borrowers to produce financial statements in accordance with GAAP, and (d) agree that they will, and will cause each other Loan Party to, keep a reporting system that shows all material additions, sales, claims, returns, and allowances with respect to their and their Subsidiaries sales."
"5.5 Taxes. Each Borrower and each Guarantor shall, and shall cause each of its Subsidiaries to, duly pay and discharge all taxes, assessments, contributions and governmental charges upon or against it or its properties or assets, except (i) for taxes the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower, such Guarantor or such Subsidiary, as the case may be and with respect to which adequate reserves have been set aside on its books in accordance with GAAP and (ii) as could not reasonably be expected to cause a Material Adverse Change."
"(a) Each Loan Party will, and will cause each of its Subsidiaries to, permit Agent, any Lender, and each of their respective duly authorized representatives or agents to visit any of its properties and inspect any of its assets or books and records, to examine and make copies of its books and records, and to discuss its affairs, finances, and accounts with, and to be advised as to the same by, its officers and employees (provided, that an authorized representative of a Borrower shall be allowed to be present) at such reasonable times and intervals as Agent or any Lender, as applicable, may designate and, so long as no Event of Default has occurred and is continuing, with reasonable prior notice to Borrowers and during regular business hours, at Borrowers expense, subject to the limitations set forth below in Section 5.7(c). Notwithstanding anything to the contrary in this Section"
"5.8 Compliance with Laws. Each Loan Party will, and will cause each of its Subsidiaries to, comply with the requirements of all applicable laws, rules, regulations, and orders of any Governmental Authority, other than laws, rules, regulations, and orders the non-compliance with which, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect."
"(d) Promptly, but in any event within ten Business Days of its receipt thereof, provide Agent with written notice of any of the following: (i) notice that an Environmental Lien has been filed against any of the real or personal property of a Loan Party or its Subsidiaries, (ii) commencement of any Environmental Action or written notice that an Environmental Action will be filed against a Loan Party or its Subsidiaries that could reasonably be expected to result in the imposition of Environmental Liabilities with respect to such Environmental Action in excess of $100,000, and (iii) written notice of a violation, citation, or other administrative order from a Governmental Authority regarding any liability of the Parent and/or its Subsidiaries of $5,000,000 or more."
"5.14 Location of Inventory; Chief Executive Office. Each Loan Party will, and will cause each of its Subsidiaries to, keep (a) their Inventory and Equipment only at the locations identified on Schedule 4.25 to this Agreement (provided that Borrowers may amend Schedule 4.25 to this Agreement so long as such amendment occurs by written notice to Agent not less than ten days prior to the date on which such Inventory or Equipment is moved to such new location and such new location is within the continental United States), and (b) their respective chief executive offices only at the locations identified on Schedule 7 to the Guaranty and Security Agreement as may be amended with 10 Business Days prior notice to the Agent so long as such new location is within the continental United States. Each Loan Party will, and will cause each of its Subsidiaries to, use their commercially reasonable efforts to obtain Collateral Access Agreements for each of the locations identified on Schedule 7 to the Guaranty and Security Agreement and Schedule 4.25 to this Agreement."
"(b) wind up, liquidate or dissolve except in the case of Subsidiaries of any Borrower or any Guarantor that are not a Borrower or a Guarantor, so long as promptly (but in any event within not less than 10 Business Days) after the commencement of such winding up, liquidation or dissolution, any assets of such Subsidiary (i) that would constitute Collateral are transferred to a Loan Party so that such assets are subject to Agents first priority perfected security interest or (ii) are subject to a Permitted Disposition,"
"(b) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Loan Parties may make distributions to former employees, officers, or directors of Parent and its Subsidiaries (or any spouses, ex-spouses, or estates of any of the foregoing), solely in the form of forgiveness of Indebtedness of such Persons owing to Loan Parties on account of repurchases of the Equity Interests of Parent held by such Persons; provided, that such Indebtedness was incurred by such Persons solely to acquire Equity Interests of Parent."
"(c) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Loan Parties may make distributions to Parent (i) in an amount sufficient to pay franchise taxes and other fees required to maintain the legal existence of the Loan Parties and their Subsidiaries to the extent actually used by Parent to pay such taxes, costs and expenses, and (ii) in an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead in the ordinary course of business of Parent and its Subsidiaries in an aggregate amount not to exceed $8,500,000 in any fiscal year,"
"(h) payments by Loan Parties required to be made under (i) the SPE Master Lease in accordance with the terms of the SPE Master Lease as in effect on the date hereof or (ii) any other lease between one or more of the Loan Parties and a SPE Propco so long as such lease is on market terms and 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."
"7.1 Fixed Charge Coverage Ratio. During a FCCR Compliance Period, Parent and its Subsidiaries shall, when measured as of the month most recently ended for which Agent has received financial statements of Parent and its Subsidiaries as provided by Schedule 5.1, maintain, for the most recently ended period of 12 consecutive fiscal months on a consolidated basis, a Fixed Charge Coverage Ratio of not less than 1.10 to 1.0; provided, that, if Parent and its Subsidiaries have maintained a Fixed Charge Coverage Ratio of not less than 1.10 to 1.0 through and including the first fiscal quarter of 2018, then during any FCCR Compliance Period thereafter, Parent and its Subsidiaries shall be required to maintain, for the most recently ended period of 12 consecutive fiscal months on a consolidated basis, a Fixed Charge Coverage Ratio of not less than 1.0 to 1.0."
"8.5 Involuntary Bankruptcy, etc. If an Insolvency Proceeding is commenced against a Loan Party or any of its Subsidiaries and any of the following events occur: (a) such Loan Party or such Subsidiary consents to the institution of such Insolvency Proceeding against it, (b) the petition commencing the Insolvency Proceeding is not timely controverted, (c) the petition commencing the Insolvency Proceeding is not dismissed within sixty calendar days of the date of the filing thereof, (d) an interim trustee is appointed to take possession of all or any substantial portion of the properties or assets of, or to operate all or any substantial portion of the business of, such Loan Party or its Subsidiary, or (e) an order for relief shall have been issued or entered therein;"
"8.12 ERISA. The occurrence of any of the following events: (a) any Loan Party or ERISA Affiliate fails to make full payment when due of all amounts which any Loan Party or ERISA Affiliate is required to pay as contributions, installments, or otherwise to or with respect to a Pension Plan or Multiemployer Plan, and such failure could reasonably be expected to result in an increase in the annual cash funding obligations by the Loan Parties by an amount greater than $5,000,000 in the aggregate after the Closing Date (when combined with any increases in connection with a Permitted Multiemployer Withdrawal or as a result of the PBGC Funding Waiver Obligations) or results in a Lien on the assets of any Loan Party, unless such Lien is junior and subordinate to the Lien in favor of Agent on terms acceptable to Agent, (b) an accumulated funding deficiency or funding shortfall occurs or exists with respect to any Pension Plan, unless such funding deficiency or funding shortfall is waived by the IRS and the PBGC in an manner reasonably acceptable to Agent in its Permitted Discretion, (c) an ERISA Event, which could reasonably be expected to result in an increase in the annual cash funding obligations by the Loan Parties by an amount greater than $5,000,000 in the aggregate after the Closing Date (when combined with any increases in connection with a Permitted Multiemployer Withdrawal or as a result of the PBGC Funding Waiver Obligations), either individually or in the aggregate, or results in a Lien on the assets of any Loan Party, unless such Lien is junior and subordinate to the Lien in favor of Agent on terms acceptable to Agent, or (d) other than in connection with a Permitted Multiemployer Withdrawal, any Loan Party or ERISA Affiliate completely or partially withdraws from one or more Multiemployer Plans and incurs Withdrawal Liability, or fails to make any Withdrawal Liability payment when due that results in an increase in the annual cash funding obligations by the Loan Parties by an amount greater than $5,000,000 in the aggregate after the Closing Date (when combined with any increases in connection with a Permitted Multiemployer Withdrawal or as a result of the PBGC Funding Waiver Obligations), or results in a Lien on the assets of any Loan Party, unless such Lien is junior and subordinate to the Lien in favor of Agent on terms acceptable to Agent; or"
"and expenses shall be limited to reasonable and documented legal fees and expenses of one firm of counsel for all such Indemnified Persons and if necessary, of one local counsel in each appropriate jurisdiction (and, to the extent required by the subject matter, one specialist counsel for each such specialized area of law in each appropriate jurisdiction) and in the case of an actual or perceived conflict of interest, one counsel for such affected Indemnified Person), experts, or consultants and all other reasonable documented out-of-pocket costs and expenses actually incurred in connection therewith or in connection with the enforcement of this indemnification (as and when they are incurred and irrespective of whether suit is brought), at any time asserted against, imposed upon, or incurred by any of them (a) in connection with or as a result of or related to the execution and delivery (provided, that Borrowers shall not be liable for costs and expenses (including attorneys fees) of any Lender (other than Wells Fargo) incurred in advising, structuring, drafting, reviewing, administering or syndicating the Loan Documents), enforcement, performance, or administration (including any restructuring or workout with respect hereto) of this Agreement, any of the other Loan Documents, or the transactions contemplated hereby or thereby or the monitoring of Parents and its Subsidiaries compliance with the terms of the Loan Documents (provided, that the indemnification in this clause (a) shall not extend to (i) disputes solely between or among the Lenders that do not involve any acts or omissions of any Loan Party, or (ii) disputes solely between or among the Lenders and their respective Affiliates that do not involve any acts or omissions of any Loan Party; it being understood and agreed that the indemnification in this clause (a) shall extend to Agent (but not the Lenders unless the dispute involves an act or omission of a Loan Party) relative to disputes between or among Agent on the one hand, and one or more Lenders, or one or more of their Affiliates, on the other hand, or (iii) any claims for Taxes, which shall be governed by Section 16, other than Taxes which relate to primarily non-Tax claims), (b) with respect to any actual or prospective investigation, litigation, or proceeding related to this Agreement, any other Loan Document, the making of any Loans or issuance of any Letters of Credit hereunder, or the use of the proceeds of the Loans or the Letters of Credit provided hereunder (irrespective of whether any Indemnified Person is a party thereto), or any act, omission, event, or circumstance in any manner related thereto, and (c) in connection with or arising out of any presence or release of Hazardous Materials at, on, under, to or from any assets or properties owned, leased or operated by any Loan Party or any of its Subsidiaries or any Environmental Actions, Environmental Liabilities or Remedial Actions related in any way to any such assets or properties of any Loan Party or any of its Subsidiaries (each and all of the foregoing, the Indemnified Liabilities). The foregoing to the contrary notwithstanding, no Borrower shall have any obligation to any Indemnified Person under this Section 10.3 with respect to any Indemnified Liability that a court of competent jurisdiction finally determines to have resulted from the gross negligence or willful misconduct of such Indemnified Person or its officers, directors, employees, advisors, representatives, attorneys, or agents. This provision shall survive the termination of this Agreement and the repayment in full of the Obligations. If any Indemnified Person makes any payment to any other Indemnified Person with respect to an Indemnified Liability as to which Borrowers were required to indemnify the Indemnified Person receiving such payment, the Indemnified Person making such payment is entitled to be indemnified and reimbursed by Borrowers with respect thereto. WITHOUT LIMITATION, THE FOREGOING INDEMNITY SHALL APPLY TO EACH INDEMNIFIED PERSON WITH RESPECT TO INDEMNIFIED LIABILITIES WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF ANY NEGLIGENT ACT OR OMISSION OF SUCH INDEMNIFIED PERSON OR OF ANY OTHER PERSON. NOTWITHSTANDING THE FOREGOING, EACH INDEMNIFIED PERSON SHALL BE OBLIGATED TO REFUND AND RETURN ANY AND ALL AMOUNTS PAID BY BORROWERS UNDER THIS PARAGRAPH TO SUCH INDEMNIFIED PERSON FOR ANY SUCH FEES, EXPENSES OR DAMAGES TO THE EXTENT A COURT OF COMPETENT JURISDICTION FINALLY DETERMINES THAT SUCH INDEMNIFIED PERSON IS NOT ENTITLED TO PAYMENT OF SUCH AMOUNT IN ACCORDANCE WITH THE TERMS HEREOF."
"(D) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent by such Lender and the Assignee,"
"this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender."
"(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses."
"13.2 Successors. This Agreement shall bind and inure to the benefit of the respective successors and assigns of each of the parties; provided, that no Borrower may assign this Agreement or any rights or duties hereunder without the Lenders prior written consent and any prohibited assignment shall be absolutely void ab initio. No consent to assignment by the Lenders shall release any Borrower from its Obligations. A Lender may assign this Agreement and the other Loan Documents and its rights and duties hereunder and thereunder pursuant to Section 13.1 and, except as expressly required pursuant to Section 13.1, no consent or approval by any Borrower is required in connection with any such assignment."
"(d) No amendment, waiver, modification, elimination, or consent shall amend, modify, or waive any provision of this Agreement or the other Loan Documents pertaining to Issuing Bank, or any other rights or duties of Issuing Bank under this Agreement or the other Loan Documents, without the written consent of Issuing Bank, Agent, Borrowers, and the Required Lenders."
"(f) Anything in this Section 14.1 to the contrary notwithstanding, (i) any amendment, modification, elimination, waiver, consent, termination, or release of, or with respect to, any provision of this Agreement or any other Loan Document that relates only to the relationship of the Lender Group among themselves, and that does not affect the rights or obligations of any Loan Party, shall not require consent by or the agreement of any Loan Party, and (ii) any amendment, waiver, modification, elimination, or consent of or with respect to any provision of this Agreement or any other Loan Document may be entered into without the consent of, or over the objection of, any Defaulting Lender other than any of the matters governed by Section 14.1(a)(i) through (iii) that affect such Lender."
"(g) Anything in this Section 14.1 to the contrary notwithstanding, (i) if Agent and Administrative Borrower shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature, in each case, in any provision of this Agreement or the other the Loan Documents, then Agent and Administrative Borrower shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within 3 Business Days following receipt of notice thereof."
"amendments, renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect to the Loan Documents, or to take any other action with respect to any Collateral or Loan Documents which may be necessary to perfect, and maintain perfected, the security interests and Liens upon Collateral pursuant to the Loan Documents, (c) make Revolving Loans, for itself or on behalf of Lenders, as provided in the Loan Documents, (d) exclusively receive, apply, and distribute payments and proceeds of the Collateral as provided in the Loan Documents, (e) open and maintain such bank accounts and cash management arrangements as Agent deems necessary and appropriate in accordance with the Loan Documents for the foregoing purposes, (f) perform, exercise, and enforce any and all other rights and remedies of the Lender Group with respect to any Loan Party or its Subsidiaries, the Obligations, the Collateral, or otherwise related to any of same as provided in the Loan Documents, and (g) incur and pay such Lender Group Expenses as Agent may deem necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to the Loan Documents."
"15.2 Delegation of Duties. Agent may execute any of its duties under this Agreement or any other Loan Document by or through agents, employees or attorneys in fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Agent shall not be responsible for the negligence or misconduct of any agent or attorney in fact that it selects as long as such selection was made without gross negligence or willful misconduct."
"15.5 Notice of Default or Event of Default. Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, except with respect to defaults in the payment of principal, interest, fees, and expenses required to be paid to Agent for the account of the Lenders and, except with respect to"
"Party and its Subsidiaries and Affiliates and any other Person party to any Loan Documents as though such Lender were not a Lender hereunder without notice to or consent of the other members of the Lender Group (or the Bank Product Providers). The other members of the Lender Group acknowledge (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, pursuant to such activities, such Lender and its respective Affiliates may receive information regarding a Loan Party or its Affiliates or any other Person party to any Loan Documents that is subject to confidentiality obligations in favor of such Loan Party or such other Person and that prohibit the disclosure of such information to the Lenders, and the Lenders acknowledge (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, in such circumstances (and in the absence of a waiver of such confidentiality obligations, which waiver such Lender will use its reasonable best efforts to obtain), such Lender shall not be under any obligation to provide such information to them."
"(a) The Lenders hereby irrevocably authorize (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent to release any Lien on any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full by the Loan Parties and their Subsidiaries of all of the Obligations, (ii) constituting property being sold or disposed of if a release is required or desirable in connection therewith and if Borrowers certify to Agent that the sale or disposition is permitted under Section 6.4 (and Agent may rely conclusively on any such certificate, without further inquiry), (iii) constituting property in which no Loan Party or any of its Subsidiaries owned any interest at the time Agents Lien was granted nor at any time thereafter, (iv) constituting property leased or licensed to a Loan Party or its Subsidiaries under a lease or license that has expired or is terminated in a transaction permitted under this Agreement, or (v) in connection with a credit bid or purchase authorized under this Section 15.11. The Loan Parties and the Lenders hereby irrevocably authorize (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent, based upon the instruction of the Required Lenders, to (a) consent to the sale of, credit bid, or purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at any sale thereof conducted under the provisions of any Insolvency Law, including Section 363 of the Bankruptcy Code, (b) credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at any sale or other disposition thereof conducted under the provisions of the Code, including pursuant to Sections 9-610 or 9-620 of the Code, or (c) credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at any other sale or foreclosure conducted or consented to by Agent in accordance with applicable law in any judicial action or proceeding or by the exercise of any legal or equitable remedy. In connection with any such credit bid or purchase, (i) the Obligations owed to the Lenders and the Bank Product Providers shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated claims being estimated for such purpose if the fixing or liquidation thereof would not impair or unduly delay the ability of Agent to credit bid or purchase at such sale or other disposition of the Collateral and, if such contingent or unliquidated claims cannot be estimated without impairing or unduly delaying the ability of Agent to credit bid at such sale or other disposition, then such claims shall be disregarded, not credit bid, and not entitled to any interest in the Collateral that is the subject of such credit bid or purchase) and the Lenders and the Bank Product Providers whose Obligations are credit bid shall be entitled to receive interests (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) in the Collateral that is the subject of such credit bid or purchase (or in the Equity Interests of the any entities that are used to consummate such credit bid or purchase), and (ii) Agent, based upon the instruction of the Required Lenders, may accept non-cash consideration, including debt and equity securities issued by any entities used to consummate such credit bid or purchase and in connection therewith Agent may reduce the Obligations owed to the Lenders and the Bank Product Providers (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) based upon the value of such non-cash consideration; provided, that Bank Product Obligations not entitled to the application set forth in Section 2.4(b)(iii)(H) shall not be entitled to be, and shall not be, credit bid, or used in the calculation of the ratable interest of the Lenders and Bank Product Providers in the Obligations which are credit bid. Except as provided above, Agent will not execute and deliver a release of any Lien on any Collateral without the prior written authorization of (y) if the release is of all or substantially all of the Collateral, all of the Lenders (without requiring the authorization of the Bank Product Providers), or (z) otherwise, the Required Lenders (without requiring the authorization of the Bank Product Providers). Upon request by Agent"
"(a) Each of the Lenders agrees that it shall not, without the express written consent of Agent, and that it shall, to the extent it is lawfully entitled to do so and not otherwise prohibited by the terms of the agreements of such Lender with a Loan Party, upon the written request of Agent, set off against the Obligations, any amounts owing by such Lender to any Loan Party or its Subsidiaries or any deposit accounts of any Loan Party or its Subsidiaries now or hereafter maintained with such Lender. Each of the Lenders further agrees that it shall not, unless specifically requested to do so in writing by Agent, take or cause to be taken any action, including, the commencement of any legal or equitable proceedings to enforce any Loan Document against any Borrower or any Guarantor or to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral."
"(b) If, at any time or times any Lender shall receive (i) by payment, foreclosure, setoff, or otherwise, any proceeds of Collateral or any payments with respect to the Obligations, except for any such proceeds or payments received by such Lender from Agent pursuant to the terms of this Agreement, or (ii) payments from Agent in excess of such Lenders Pro Rata Share of all such distributions by Agent, such Lender promptly shall (A) turn the same over to Agent, in kind, and with such endorsements as may be required to negotiate the same to Agent, or in immediately available funds, as applicable, for the account of all of the Lenders and for application to the Obligations in accordance with the applicable provisions of this Agreement, or (B) purchase, without recourse or warranty, an undivided interest and participation in the Obligations owed to the other Lenders so that such excess payment received shall be applied ratably as among the Lenders in accordance with their Pro Rata Shares; provided, that to the extent that such excess payment received by the purchasing party is thereafter recovered from it, those purchases of participations shall be rescinded in whole or in part, as applicable, and the applicable portion of the purchase price paid therefor shall be returned to such purchasing party, but without interest except to the extent that such purchasing party is required to pay interest in connection with the recovery of the excess payment."
"15.17 Several Obligations; No Liability. Notwithstanding that certain of the Loan Documents now or hereafter may have been or will be executed only by or in favor of Agent in its capacity as such, and not by or in favor of the Lenders, any and all obligations on the part of Agent (if any) to make any credit available hereunder shall constitute the several (and not joint) obligations of the respective Lenders on a ratable basis, according to their respective Commitments, to make an amount of such credit not to exceed, in principal amount, at any one time outstanding, the amount of their respective Commitments. Nothing contained herein shall confer upon any Lender any interest in, or subject any Lender to any liability for, or in respect of, the business, assets, profits, losses, or liabilities of any other Lender. Each Lender shall be solely responsible for notifying its Participants of any matters relating to the Loan Documents to the extent any such notice may be required, and no Lender shall have any obligation, duty, or liability to any Participant of any other Lender. Except as provided in Section 15.7, no member of the Lender Group shall have any liability for the acts of any other member of the Lender Group. No Lender shall be responsible to any Borrower or any other Person for any failure by any other Lender (or Bank Product Provider) to fulfill its obligations to make credit available hereunder, nor to advance for such Lender (or Bank Product Provider) or on its behalf, nor to take any other action on behalf of such Lender (or Bank Product Provider) hereunder or in connection with the financing contemplated herein."
"15.18 Joint Lead Arrangers, Joint Book Runners, and Syndication Agent. Each of the Joint Lead Arrangers, Joint Book Runners, and Syndication Agent, in such capacities, shall not have any right, power, obligation, liability, responsibility, or duty under this Agreement other than those applicable to it in its capacity as a Lender, as Agent or as Issuing Bank. Without limiting the foregoing, each of the Joint Lead Arrangers, Joint Book Runners, and Syndication Agent, in such capacities, shall not have or be deemed to have any fiduciary relationship with any Lender or any Loan Party. Each Lender, Agent, Issuing Bank, and each Loan Party acknowledges that it has not relied, and will not rely, on the Joint Lead Arrangers, Joint Book Runners, and Syndication Agents in deciding to enter into this Agreement or in taking or not taking action hereunder. Each of the Joint Lead Arrangers, Joint Book Runners, and Syndication Agent, in such capacities, shall be entitled to resign at any time by giving notice to Agent and Borrowers."
"(e) 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 due diligence and reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the IRC, as applicable), such Lender shall deliver to Agent (or, in the case of a Participant, to the Lender granting the participation only) at the time or times prescribed by law and at such time or times reasonably requested by Agent (or, in the case of a Participant, the Lender granting the participation) such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the IRC) and such additional documentation reasonably requested by Agent (or, in the case of a Participant, the Lender granting the participation) as may be necessary for Agent or Borrowers to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (e), ""FATCA"" shall include any amendments made to FATCA after the date of this Agreement."
"(a) If a Lender or a Participant is subject to an applicable withholding tax, Agent (or, in the case of a Participant, the Lender granting the participation) may withhold from any payment to such Lender or such Participant an amount equivalent to the applicable withholding tax. If the forms or other documentation required by Section 16.2(a) or 16.2(c) are not delivered to Agent (or, in the case of a Participant, to the Lender granting the participation), then Agent (or, in the case of a Participant, to the Lender granting the participation) may withhold from any payment to such Lender or such Participant not providing such forms or other documentation an amount equivalent to the applicable withholding tax."
"(b) Anything in this Agreement to the contrary notwithstanding, Agent may disclose information concerning the terms and conditions of this Agreement and the other Loan Documents to loan syndication and pricing reporting services or in its marketing or promotional materials, with such information to consist of deal terms and other information customarily found in such publications or marketing or promotional materials and may otherwise use the name, logos, and other insignia of any Borrower or the other Loan Parties and the Commitments provided hereunder in any tombstone or other advertisements, on its website or in other marketing materials of the Agent."
"(c) Each Loan Party agrees that Agent may make materials and information provided by or on behalf of the Loan Parties hereunder (collectively, Borrower Materials) available to the Lenders by posting the Communications on IntraLinks, SyndTrak or a substantially similar secure electronic transmission system (the Platform). The Platform is provided as is and as available. Agent does 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 communications. No warranty of any kind, express, implied or statutory, including, without limitation, 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 Agent in connection with the Borrower Materials or the Platform. In no event shall Agent or any of the Agent-Related Persons have any liability to the Loan Parties, any Lender or any other person for damages of any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Partys or Agents transmission of communications through the Internet, except to the extent the liability of such person is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from such persons gross negligence or willful misconduct. Each Loan Party further agrees that certain of the Lenders may be public-side Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Loan Parties or their securities) (each, a Public Lender). The Loan Parties shall be deemed to have authorized Agent and its Affiliates and the Lenders to treat Borrower Materials marked PUBLIC or otherwise at any time filed with the SEC as not containing any material non- public information with respect to the Loan Parties or their securities for purposes of United States federal and state securities laws. All Borrower Materials marked PUBLIC are permitted to be made available through a portion of the Platform designated as Public Investor (or another similar term). Agent and its Affiliates and the Lenders shall be entitled to treat any Borrower Materials that are not marked PUBLIC or that are not at any time filed with the SEC as being suitable only for posting on a portion of the Platform not marked as Public Investor (or such other similar term)."
"17.11 Patriot Act; Due Diligence. Each Lender that is subject to the requirements of the Patriot Act hereby notifies the Loan Parties that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow such Lender to identify each Loan Party in accordance with the Patriot Act. In addition, Agent and each Lender shall have the right to periodically conduct due diligence on all Loan Parties, their senior management and key principals and legal and beneficial owners. Each Loan Party agrees to cooperate in respect of the conduct of such due diligence and further agrees that the reasonable and documented out-of-pocket costs and charges for any such due diligence by Agent shall constitute Lender Group Expenses hereunder and be for the account of Borrowers."
"(i) Except as otherwise stated in this Section 17.16, as of the date hereof, the terms, conditions, agreements, covenants, representations and warranties set forth in the Existing Loan Agreement are hereby amended and restated in their entirety, and as so amended and restated, replaced and superseded, by the terms, conditions, agreements, covenants, representations and warranties set forth in this Agreement, except that nothing herein or in the Loan Documents shall impair or adversely affect the continuation of the liability of any Borrower or Guarantor for the Obligations heretofore granted, pledged and/or assigned to Agent or any Lender. The amendment and restatement contained herein shall not, in any manner, be construed to constitute payment of, or impair, limit, cancel or extinguish, or constitute a novation in respect of, the Indebtedness and other obligations and liabilities of any Borrower, Guarantor or Parent evidenced by or arising under the Existing Loan Agreement or the other Existing Financing Agreements, and the liens and security interests securing such Indebtedness and other obligations and liabilities, which shall not in any manner be impaired, limited, terminated, waived or released, except as otherwise set forth in the Loan Documents."
"(ii) The principal amount of the Loans and Letters of Credit (including the Existing Letters of Credit) outstanding as of the date hereof under the Existing Loan Agreement shall be allocated to the Loans and Letters of Credit hereunder according to the Lenders Pro Rata Shares. On and after the date hereof, all Existing Letters of Credit shall be deemed to be Letters of Credit issued under this Agreement and shall subject to all the terms and conditions hereof as if such Letters of Credit were issued by Issuing Bank pursuant to this Agreement."
"(i) In consideration of the agreements of Agent and Lenders contained herein, and the continued making of the loans, advances and other accommodations by Lenders (or Agent on behalf of Lenders) to Borrowers pursuant to this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Parent, each Borrower and each Guarantor, on behalf of itself and its successors, assigns, and other legal representatives, hereby, jointly and severally, absolutely, unconditionally and irrevocably releases, remises and forever discharges Agent, each member of the Lender Group, and its present and former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys, employees, agents and other representatives and their respective successors and assigns (Agent, Lender and all such other parties being hereinafter referred to collectively as the Releasees and individually as a Releasee), of and from all demands, actions, causes of action, suits, covenants, contracts, controversies, agreements, promises, sums of money, accounts, bills, reckonings, damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever (individually, a Claim and collectively, Claims) of every name and nature, known or unknown, suspected or unsuspected, both at law and in equity, which each of Parent, any Borrower or any Guarantor, or any of its successors, assigns, or other legal representatives and their respective successors and assigns may now or hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of any nature, cause or thing whatsoever which arises at any time on or prior to the day and date of this Agreement, including, without limitation, for or on account of, or in relation to, or in any way in connection with the Credit Agreement through the date hereof, and the other Loan Documents."
"1.In accordance with the terms and conditions of Section 13 of the Credit Agreement, 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 Assignor's rights and obligations under the Loan Documents as of the date hereof with respect to the Obligations owing to the Assignor, and Assignors portion of the Commitments, all to the extent specified on Annex I."
"The effective date of this Assignment (the Settlement Date) shall be the latest to occur of (a) the date of the execution and delivery hereof by the Assignor and the Assignee, (b) the receipt by Agent for its sole and separate account a processing fee in the amount of $3,500 (if required by the Credit Agreement), (c) the receipt of any required consent of the Agent, and (d) the date specified in Annex I."
"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."
"2.Acknowledgement of Certain Provisions of Credit Agreement. The Specified Bank Products Provider hereby acknowledges that it has reviewed the provisions of Section 2.4(b)(ii), Section 14.1, Section 15 and Section 17.5 of the Credit Agreement, including, as applicable, the defined terms used therein, and agrees to be bound by the provisions thereof. Without limiting the generality of any of the foregoing referenced provisions, Specified Bank Product Provider understands and agrees that its rights and benefits under the Loan Documents consist solely of it being a beneficiary of the Liens and security interests granted to Agent and the right to share in proceeds of the Collateral to the extent set forth in the Credit Agreement."
"6.Notices. All notices and other communications provided for hereunder shall be given in the form and manner provided in Section 11 of the Credit Agreement, and, if to Agent, shall be mailed, sent, or delivered to Agent in accordance with Section 11 in the Credit Agreement, if to any Borrower, shall be mailed, sent, or delivered to Borrowers in accordance with Section 11 in the Credit Agreement, and, if to Specified Bank Products Provider, shall be mailed, sent, or delivered to the address set forth"
"(b)THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK. EACH PARTY HERETO WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 8(b)."
"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."
"Administrative Borrower represents and warrants that (i) as of the date hereof, the representations and warranties of Parent, the Borrowers and their Subsidiaries contained in the Credit Agreement and in 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, as though made on and as of such date (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)), (ii) each of the covenants and agreements contained in any Loan Document have been performed (to the extent required to be performed on or before the date hereof or each such effective date), and"
"(d)Each other representation and warranty applicable to New Borrower as a Borrower under the Loan Documents is true, correct and complete, 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, as though made on such date (except to the extent that such representations and warranties relate solely to an earlier date)."
"(a)a Joinder No. to the Guaranty and Security Agreement, dated as of the date hereof, by and among New Borrower and Agent (Joinder No. ), together with the original Equity Interest certificates, if any, representing all of the Equity Interests of the Subsidiaries of New Borrower required to be pledged under the Guaranty and Security Agreement and any original promissory notes of New Borrower, accompanied by undated Equity Interest powers/transfer forms executed in blank, and the same shall be in full force and effect;"
"(a)This Agreement is a Loan Document. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, taken together, shall constitute but one and the same Agreement. Delivery of an executed counterpart of this Agreement by telefacsimile or other electronic image scan transmission (e.g., PDF or tif via email) shall be equally effective as delivery of an original executed counterpart of this Agreement. Any party delivering an executed counterpart of this Agreement by telefacsimile or other electronic image scan transmission also shall deliver an original executed counterpart of this Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Agreement."
"(d)Neither this Agreement nor any uncertainty or ambiguity herein shall be construed against any member of the Lender Group or New Borrower, whether under any rule of construction or otherwise. This Agreement has been reviewed by all parties and shall be construed and interpreted according to the ordinary meaning of the words used so as to accomplish fairly the purposes and intentions of all parties hereto."
"(c)Set forth in Schedule 1(c) is a list of all other names used by each Loan Party in connection with any business or organization to which such Loan Party became the successor by merger, consolidation, acquisition, change in form, nature or jurisdiction of organization or otherwise or on any filings with the Internal Revenue Service, in each case, at any time in the past five years. Except as set forth in Schedule 1(c), no Loan Party has changed its jurisdiction of organization at any time during the past four months."
"Reference is hereby made to (a) 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 Holdings Inc., a Delaware corporation (Parent), BlueLinx Corporation, a Georgia corporation (BlueLinx), BlueLinx Florida LP, a Florida limited partnership (BFLP, and together with BlueLinx and those additional entities that become parties thereto as Borrowers in accordance with the terms thereof by executing the form of Joinder attached thereto as Exhibit J-1, each, a Borrower and individually and collectively, jointly and severally, the Borrowers), 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 become guarantor parties thereto pursuant to Section 5.11 of the Credit Agreement, each individually a Guarantor and collectively, Guarantors), the lenders identified on the signature pages thereof (each of such lenders, together with its successors and permitted assigns, is referred to hereinafter as a Lender and, collectively, the Lenders), 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), Wells Fargo Capital Finance, LLC (WFCF) and [___________], as joint lead arrangers (in such capacity, together with their successors and assigns in such capacity, the Joint Lead Arrangers), WFCF and [___________], as joint book runners (in such capacity, together with their successors and assigns in such capacity, the Joint Book Runners), [Wells Fargo and ___________], as co- syndication agents (in such capacity, together with their successors and assigns in such capacity, the Co-Syndication Agents), and [Wells Fargo and ___________], as co-documentation agents (in such capacity, together with their successors and assigns in such capacity, the Co-Documentation Agents), and (b) that certain Guaranty and Security Agreement dated as of [_________], 2017 (as amended, restated, supplemented, or otherwise modified from time to time, the Guaranty and Security Agreement) by and among by and among Parent, Borrowers and Guarantors (each, a Grantor and collectively, the Grantors), and Agent."
"The undersigned officers of each of the Loan Parties hereby certify as of the date hereof on behalf of the Loan Parties in their capacity as officers of the Loan Parties and not in their individual capacities that no additional filings or actions are required to create, preserve or perfect the security interests in the Collateral granted, assigned or pledged to Agent pursuant to the Loan Documents."
"(d) Agent shall have received a certificate from the Secretary of each Loan Party (i) attesting to the resolutions of such Loan Partys board of directors authorizing its execution, delivery, and performance of the Loan Documents to which it is a party, (ii) authorizing specific officers of such Loan Party to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Loan Party;"
"(l) Agent shall have received a set of Projections of Borrowers for the 3 year period following the Closing Date (on a year by year basis, and for the 1 year period following the Closing Date, on a month by month basis), in form and substance (including as to scope and underlying assumptions) satisfactory to Agent;"
"(d) a Compliance Certificate along with the underlying calculations, including the calculations to arrive at EBITDA and to calculate the covenants in Section 7.1 (whether or not then applicable) and Section 7.2. as soon as available, but in any event within 30 days prior to the start of each of Parents fiscal years,"
"(l) notice of such acquisition, together with a description of the Margin Stock and a 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. "
"13.1Term. This Agreement, which shall inure to the benefit of and shall be binding upon the respective successors and permitted assigns of each Borrower, Agent and each Lender, shall become effective on the date hereof and shall continue in full force and effect until May10, 2022 (the Term) unless sooner terminated as herein provided."
"4.02Representations and Warranties with respect to Other Documents. Each Borrower hereby represents and warrants to Agent that (a)the execution, delivery and performance of this Amendment and any and all Other Documents executed and/or delivered in connection herewith have been authorized by all requisite corporate action on the part of each Borrower and will not violate the Articles or Certificate of Incorporation or By-Laws or the Certificate of Formation or Operating Agreement of any Borrower; (b)the representations and warranties contained in the Credit Agreement, as amended hereby, and the Other Documents are true and correct on and as of the date hereof and on and as of the date of execution hereof as though made on and as of each such date; (c)no Default or Event of Default under the Credit Agreement, as amended hereby, has occurred and is continuing, unless such Default or Event of Default has been specifically waived in writing by Agent; and (d)each Borrower is in full compliance with all covenants and agreements contained in the Credit Agreement and the Other Documents, as amended hereby."
"UNDER THE CREDIT AGREEMENT OR THE OTHER DOCUMENTS OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM LENDERS AND AGENT. EACH BORROWER HEREBY VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES LENDERS, AGENT, THEIR PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS AMENDMENT IS EXECUTED, WHICH SUCH BORROWER MAY NOW OR HEREAFTER HAVE AGAINST LENDERS AND AGENT, THEIR PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, AND ARISING FROM ANY LOANS OR EXTENSIONS OF CREDIT FROM LENDERS AND AGENT TO SUCH BORROWER UNDER THE CREDIT AGREEMENT OR THE OTHER DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE CREDIT AGREEMENT OR OTHER DOCUMENTS, AND NEGOTIATION FOR AND EXECUTION OF THIS AMENDMENT."
"CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE REVOLVING CREDIT AND SECURITY AGREEMENT, AS AMENDED BY THIS AMENDMENT, OR THE OTHER DOCUMENTS, AND NEGOTIATION FOR AND EXECUTION OF THIS AMENDMENT AND THIS CONSENT."
Section 1.Definitions; Interpretation | 1 ---|--- 1.1Definitions | 1 1.2Interpretation | 17 Section 2.Credit Facilities | 17 2.1Loans | 17 2.1.1Loans | 17 2.1.2General | 18 2.2Loan Accounting | 18 2.2.1Recordkeeping | 18 2.2.2Notes | 18 2.3Interest | 18 2.3.1Interest Rate | 18 2.3.2Interest Payments | 19 2.3.3Computation of Interest | 19 2.4Amortization; Prepayment | 19 2.4.1Amortization | 19 2.4.2Voluntary Prepayment | 19 2.5Payment Upon Maturity | 20 2.6Making of Payments | 20 2.7Application of Payments and Proceeds | 20 2.8Payment Dates | 20 2.9Set-off | 20 2.10Currency Matters | 20 2.11Protective Advances | 20 2.12Fees; Warrant Issuances | 21 2.12.1Fees | 21 2.12.2Prepayment Premium Amount; Make-Whole Amount; and Deferred Facility Fee | 21 2.12.3Warrant Issuance | 22 2.12.4Tax Treatment | 22 Section 3.Yield Protection | 22 3.1Taxes | 22 3.2Increased Cost | 24 3.3Mitigation of Circumstances | 26 3.4Conclusiveness of Statements; Survival | 26 Section 4.Conditions Precedent | 26 4.1Closing Date | 26 4.1.1Delivery of Loan Documents | 26 4.1.2Representations and Warranties | 28 4.1.3No Default | 28 4.1.4No Material Adverse Change | 28 4.1.5Funding of Debt Service Reserve Account | 29 4.1.6Payment of Fees and Expenses | 29 
"Capital Stock means all shares of capital stock (whether denominated as common stock or preferred stock), equity interests, beneficial, partnership or membership interests, joint venture interests, participations or other ownership or profit interests in, or Stock Equivalents (regardless of how designated) of, a Person (other than an individual), whether voting or non- voting."
"Collateral (a) has the meaning given to the term Collateral as set forth in the Security Agreement and the term Pledged Collateral as set forth in the Pledge Agreement and (b) shall include all other collateral in which the Agent is granted a Lien under the Collateral Documents, including without limitation under the Mortgages."
"Debt of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all indebtedness of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person as lessee under Capital Leases which have been or should be recorded as liabilities on a balance sheet of such Person in accordance with GAAP, (d) all obligations of such Person to pay the deferred purchase price of property or services (excluding trade accounts payable in the ordinary course of business), (e) all indebtedness secured by a Lien on the property of such Person, whether or not such indebtedness shall have been assumed by such Person (with the amount thereof being measured as the fair market value of such property), (f) all obligations, contingent or otherwise, with respect to letters of credit (whether or not drawn), bankers acceptances and surety bonds issued for the account of such Person, (g) all Hedging Obligations of such Person, (h) all Contingent Obligations of such Person for obligations of any other Person constituting Debt (under another clause of this definition) of such Person, (i) earn-out, purchase price adjustment and similar obligations, (j) all obligations of such Person under any synthetic lease transaction, where such obligations are considered borrowed money indebtedness for tax purposes but the transaction is classified as an operating lease in accordance with GAAP and (k) all indebtedness of the types listed in clauses(a) through (k) of any partnership of which such Person is a general partner."
"Excluded Taxes means any of the following Taxes required to be withheld or deducted from a payment to the Lender: (a) Taxes imposed on or measured by the Lenders net income (however denominated), franchise Taxes in lieu of Taxes on net income, and branch profits Taxes, in each case (i) imposed by the jurisdiction under which the Lender is organized or has its principal office or (ii) that are Other Connection Taxes, (b) U.S. federal withholding Taxes pursuant to a law in effect at the time such Lender first becomes a party to this Agreement, except to the extent that, pursuant to Section 3.1(a), amounts with respect to such Taxes were payable to such Lenders assignor immediately before such Lender became a party hereto, (c) any U.S. federal withholding Taxes imposed pursuant to FATCA."
"IP Ancillary Rights means, with respect to an item of Intellectual Property all foreign counterparts to, and all divisionals, reversions, continuations, continuations-in-part, reissues, reexaminations, renewals and extensions of, such Intellectual Property and all income, royalties, proceeds and liabilities at any time due or payable or asserted under or with respect to any of the foregoing or otherwise with respect to such Intellectual Property, including all rights to sue or recover at law or in equity for any past, present or future infringement, misappropriation, dilution, violation or other impairment thereof, and, in each case, all rights to obtain any other IP Ancillary Right."
"Pledge Agreement means the Pledge Agreement dated as of the Closing Date, executed by the Borrower and each other Person that becomes party to such Security Agreement in favor of the Agent, as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms hereof and thereof."
Warrants means (a) those certain 7-year common stock purchase warrants issued by ADMA Biologics to the Lender or Lenders Affiliates on the Closing Date in accordance with Section 2.12.2 and (b) those certain 7-year common stock purchase warrants issued by ADMA Biologics to the Lender or Lenders Affiliates on the Tranche Two Funding Date in accordance with Section 2.12.2.
"(b) on the Tranche Two Funding Date, subject to satisfaction of the conditions set forth in Section 4.2 (the Tranche Two Loan Funding Conditions), the entire amount of the Designated Tranche Two Loan Amount, after which the Tranche Two Commitment shall terminate in full; provided that in the event the Tranche Two Loan Funding Conditions shall not have been satisfied and the Tranche Two Loan shall not have been funded, in each case, on or prior to ninety (90) days following the Borrowers satisfaction of the Tranche Two Loan Hurdle, the Tranche Two Commitment shall terminate in full and the Borrower shall not be entitled to thereafter make a Tranche Two Loan Borrowing Request."
"2.2.2 Notes. At the request of the Lender, the Loans shall be evidenced by one or more Notes, with appropriate insertions, payable to the order of the Lender in a face principal amount equal to the applicable Loan and payable in such amounts and on such dates as are set forth herein."
"(c) The foregoing notwithstanding, (i) at any time an Event of Default has occurred and is continuing, the interest rate then applicable to the Loans shall automatically be increased, without demand or notice of any kind from the Agent or the Lender (including declaration or notice of an Event of Default), by five percent (5.00%) per annum (any such increased rate, the Default Rate) and (ii) any such increase may thereafter be waived or rescinded by the Lender in its sole discretion by written notice to the Borrower. In the event that the Obligations are not Paid in Full as of the Maturity Date, or in the event that the Obligations shall be declared or shall become due and payable pursuant to Section 8.2, the Obligations shall bear interest subsequent thereto at the Default Rate and such interest shall be payable in cash on demand. In no event shall interest or other amounts payable by the Borrower to the Lender hereunder exceed the maximum rate permitted under Applicable Law, and if any such provision of this Agreement is in contravention of any such law, (x) any amounts paid hereunder shall be deemed to be and shall be applied against the principal amount of the Obligations to the extent necessary such that the amounts paid hereunder do not exceed the maximum rate under Applicable Law and (y) such provision shall otherwise be deemed modified as necessary to limit such amounts paid to the maximum rate permitted under Applicable Law."
"(b) Interest accrued on the Tranche Two Loan during the period from the Tranche Two Funding Date until the Maturity Date shall accrue and be payable in cash quarterly on each Interest Payment Date, in arrears, and, to the extent not paid in advance, upon a prepayment of the Tranche Two Loan in accordance with Section 2.4 and on the Maturity Date, in each such case, in cash. After the Maturity Date and at any time an Event of Default exists, all accrued interest on the Tranche Two Loan shall be payable in cash on demand at the rates specified in Section 2.3.1(c)."
"(a) Commencing on the Amortization Date, and on each Payment Date thereafter, the Borrower shall repay the Tranche One Loan in equal monthly installments of principal based on an amortization schedule of eighteen (18) months, subject to earlier Payment In Full following the occurrence of an Event of Default or termination of this Agreement."
"(b) If the Lender shall reasonably determine that any change in, or the adoption or phase-in of, any Applicable Law, rule or regulation regarding capital adequacy, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by the Lender or any Person controlling the Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the Lenders or such controlling Persons capital as a consequence of such Lenders Commitments hereunder to a level below that which the Lender or such controlling Person could have achieved but for such change, adoption, phase-in or compliance (taking into consideration the Lenders or such controlling Persons policies with respect to capital adequacy) by an amount deemed by the Lender or such controlling Person to be material, then from time to time, upon demand by the Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to the Agent), the Borrower shall pay within ten Business Days after written demand therefor to the Lender such additional amount as will compensate the Lender or such controlling Person for such reduction."
"(m) Real Estate. With respect to the Real Estate located at 5800 and 5900 Park of Commerce Blvd, NW, Boca Raton, Florida 33487, the vacant land referred to as Parcel A in Boca Raton, Florida and the Real Estate located at 166 Earnest Barrett Parkway, Marietta, Georgia 30066 (such Georgia Real Estate, the Leasehold Property) (i) a Mortgage, (ii) an A.L.T.A. lenders title insurance policy issued by a title insurer satisfactory to the Lender or the Agent, in form and substance satisfactory to the Lender and in an amount satisfactory to the Lender, insuring that the Mortgage is a valid and enforceable first priority Lien on the respective property, free and clear of all defects, encumbrances and Liens other than Permitted Liens, (iii) with respect to the fee owned properties, current A.L.T.A. survey, certified to the Agent by a licensed surveyor sufficient to allow the issuer of the Lenders title insurance policy to issue such policy without a survey exception, (iv) with respect to the Leasehold Property, a copy of the fee owners survey and (v) with respect to the fee owned properties, an environmental site assessment prepared by a qualified firm acceptable to the Lender."
"4.1.6 Payment of Fees and Expenses. The Borrower shall have paid, on or prior to the Closing Date, (i) the Facility Fee payable under Section 2.12.1, if applicable, and (ii) the fees payable on or before the Closing Date in the amounts set forth in the Agent Fee Letter, and (iii) all costs and expenses (including payment or reimbursement of all Legal Costs, diligence costs and consulting fees) incurred by the Agent and the Lender in connection with the transactions contemplated by this Agreement and the other Loan Documents."
"4.2.2 Tranche Two Hurdle. Satisfaction of either of the following conditions (the Tranche Two Hurdle): (A) receipt by Agent of evidence reasonably satisfactory to the Lender of (i) the FDAs validation of the improved manufacturing process of Bivigam and (ii)ADMA Biologics generation in calendar year 2018 of not less than $500,000 in net revenue generated from the sale in the United States of America of Bivigam, as reflected on ADMA Biologics certified 2018 year-end financial statements delivered to Agent in accordance with the terms of Section 6.1.1; or (B) receipt by Lender or Agent of evidence reasonably satisfactory to Lender of (i) the FDAs approval for the commercialization of the Specified Product and (ii) ADMA Biologics generation in calendar year 2019 of not less than $500,000 in net revenue generated from the sale in the United States of America of the Specified Product, as reflected on ADMA Biologics certified 2019 year-end financial statements delivered to Agent in accordance with the terms of Section 6.1.1."
"4.2.6 Representations and Warranties. Each representation and warranty by each Loan Party contained herein or in any other Loan Document to which such Loan Party is a party, shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of the Tranche Two Funding Date (or as of a specific earlier date if such representation or warranty expressly relates to an earlier date)."
"5.6 Litigation. No litigation (including derivative actions), arbitration proceeding or governmental investigation or proceeding is pending or, to the Borrowers knowledge, threatened in writing, against any Loan Party or any of its Subsidiaries or any of their respective properties that could reasonably be expected to result in a Material Adverse Effect. No injunction, writ, temporary restraining order or any order of any nature has been issued by any court or other Governmental Authority purporting to enjoin or restrain the execution, delivery or performance of this Agreement, any other Loan Document, or directing that the transactions provided for herein not be consummated as herein provided. Neither any Loan Party nor any of its Subsidiaries is the subject of an audit or, to the knowledge of the Borrower, any review or investigation by any Governmental Authority (excluding the IRS and other taxing authorities) concerning the violation of any material requirement of Applicable Law."
"(b) No Consent of Third Parties Required. Except as set forth in Section 5.8(b) of the Disclosure Letter, no consent of any Person, including any other general or limited partner, any other member of a limited liability company, any other shareholder or any other trust beneficiary, is necessary in connection with the creation, perfection and/or first priority status of the security interest of the Agent in any Capital Stock pledged to the Agent for the benefit of the Lender under the Collateral Documents or the exercise by the Lender or Agent of the voting or other rights provided for in the Collateral Documents or the exercise of rights and remedies in respect thereof."
"5.13 Solvency. Both immediately before and after giving effect to (a) the Loan or Loans made on or prior to the date this representation and warranty is made or remade, (b) the disbursement of proceeds of such Loan or Loans, and (c) the payment and accrual of all transaction costs in connection with the foregoing, the Borrowers, taken as a whole, are Solvent."
"5.15 Insurance. Each Loan Party and its properties are insured with financially sound and reputable insurance companies reasonably satisfactory to the Lender, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where such Loan Party operates. A true and complete listing of such insurance of the Loan Parties as of the Closing Date, including issuers and coverages, is set forth in Section 5.15 of the Disclosure Letter."
"5.16 Information. All information heretofore or contemporaneously herewith furnished in writing by the Borrower or any other Loan Party to the Agent or the Lender for purposes of or in connection with this Agreement and the transactions contemplated hereby is, and all written information hereafter furnished by or on behalf of the Borrower or any Loan Party to the Agent or the Lender pursuant hereto or in connection herewith will be true and accurate in every material respect on the date as of which such information is dated or certified, and none of such information is or will be incomplete by omitting to state any material fact necessary to make such information not misleading in light of the circumstances under which it was made (it being recognized by the Agent and the Lender that any projections and forecasts provided by the Borrower are based on good faith estimates and assumptions believed by the Borrower to be reasonable as of the date of the applicable projections or assumptions and that actual results during the period or periods covered by any such projections and forecasts may differ from projected or forecasted results and such differences may be material)."
"(f) Each Loan Party and each of its Subsidiaries owns, or is licensed or otherwise has the right to use, all Intellectual Property necessary to conduct its business as currently conducted. The conduct and operations of the businesses of each Loan Party and each of its Subsidiaries do not and, to Borrowers knowledge, the anticipated products of the Loan Parties and its Subsidiaries, upon their commercial release, will not, infringe upon, misappropriate, dilute or violate any Intellectual Property owned by any other Person. No Loan Party or any of its Subsidiaries has received any written notice or claim that (i) asserts any right, title or interest with respect to, or (ii) contests any right, title or interest of any Loan Party or any of its Subsidiaries in, any Intellectual Property, any anticipated products and applications derived or expected to be derived therefrom, or the development and commercialization of any products derived or expected to be derived therefrom. The Intellectual Property owned by the Loan Parties and their Subsidiaries is sufficient, and conveys adequate rights, title and interests, for the Borrower, the other Loan Parties and their Subsidiaries to develop and commercialize their anticipated products and Intellectual Property applications."
"6.1.3 Monthly Reports. Commencing with respect to the first calendar month after the Closing Date, promptly when available and in any event within 45 days of the end of such calendar month and each subsequent calendar month (including any calendar month ending December 31), a consolidated cash balance sheet of ADMA Biologics and its Subsidiaries as of the end of such calendar month, together with consolidated statements of income and cash flows for such period, all certified by the chief financial officer of ADMA Biologics."
"6.4 Compliance with Laws and Contractual Obligations; Payment of Taxes and Liabilities. (a) Comply, and cause each other Loan Party and each of its Subsidiaries to comply, with all Applicable Laws and all indentures, agreements and other instruments binding upon it or its property, except where failure to comply could not reasonably be expected to have a Material Adverse Effect; (b) without limiting clause (a) above, ensure, and cause each other Loan Party and each of its Subsidiaries to ensure, that no Person who owns a controlling interest in or otherwise controls a Loan Party or one of its Subsidiaries is or shall be (i) listed on the Specially Designated Nationals and Blocked Person List maintained by OFAC, the United States Department of the Treasury, and/or any other similar lists maintained by OFAC pursuant to any authorizing statute, executive order or regulation or (ii) a Person designated under Section1(b), (c) or (d) of Executive Order 13224, any related enabling legislation or any other similar executive orders; (c) without limiting clause (a) above, comply and cause each other Loan Party and each of its Subsidiaries to comply, with all applicable Bank Secrecy Act and anti-money laundering laws and regulations; and (d) timely prepare and file all income and other material Tax Returns required to be filed by Applicable Law and pay, and cause each other Loan Party and each of its Subsidiaries to pay, prior to delinquency, all income and other material Taxes against it or any of its property, as well as claims of any kind which, if unpaid, could reasonably become a Lien on any of its property; provided that the foregoing shall not require the Borrower, any other Loan Party or any of their Subsidiaries to pay any such Tax or charge so long as (a) it shall promptly contest the validity thereof in good faith by appropriate proceedings, (b) it shall set aside on its books adequate reserves with respect thereto in accordance with GAAP and (c) the related Lien shall have no effect on the priority of the Liens in favor of the Agent."
"(a) Further Assurances. Promptly upon request by the Lender or Agent, take, and cause each other Loan Party and each of its Subsidiaries to take, such additional actions as the Lender or Agent may reasonably require from time to time in order (i) to subject to the Liens created by any of the Collateral Documents any of the properties, rights or interests, whether now owned or hereafter acquired, covered or intended to be covered by any of the Collateral Documents, (ii) to perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and the Liens intended to be created thereby, and (iii) to assure, convey, grant, assign, transfer, preserve, protect and confirm to the Agent and the Lender the rights granted or now or hereafter intended to be granted to the Agent and the Lender under any Loan Document."
"(c) Collateral Access Agreements. The Borrower and each other Loan Party shall be under an ongoing obligation to obtain a Collateral Access Agreement from the lessor of each leased property and bailee in possession of any Collateral with a book value in excess of $100,000 with respect to each location in the United States where any Collateral is stored or located, which Collateral Access Agreement shall be in form and substance reasonably satisfactory to the Lender."
"(i) Debt owed to any Person providing workers compensation, health, disability or other employee benefits or property, casualty, liability, or other insurance to Borrower or any of its Subsidiaries, so long as the amount of such Debt is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the year in which such Debt is incurred and such Debt is outstanding only during such year; and"
"(e) Liens securing Debt permitted by Section 7.1(b); provided, however, that any such Lien (i) attaches only to the property being leased or financed and any accessions thereto and proceeds thereof and (ii) attaches to such property within 20 days of the acquisition thereof and attaches solely to the property so acquired and any accessions thereto and proceeds thereof;"
"(iii) any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property so long as the proceeds of such condemnation, seizure or taking are promptly (but in any event not later than three (3) Business Days after such Loan Partys receipt thereof) remitted to Agent, for the benefit of Lender, as a prepayment of the Loans. Such prepayment shall be applied to prepayment of the Loans in accordance with the terms of Section 2.7;"
"Notwithstanding anything contained in this Agreement or any other Loan Document to the contrary, without the prior written consent of the Lender (which such consent may be withheld by the Lender in its sole discretion), , neither the Borrower nor any other Loan Party shall at any time (a) transfer and/or move any machinery or equipment to or (b) purchase any machinery or equipment for use at, a Specified Leased Location if the fair market value of the machinery and equipment so intended to be transferred, moved and/or purchased, together with the fair market value of all other machinery and equipment so transferred or moved to and/or purchased for use at a Specified Leased Location since the Closing Date, would exceed $10,000 in the aggregate provided, that in the event any machinery or equipment constituting an Acquired Asset located at a Specified Leased Location is required to be replaced in accordance with Section 8a.(i)(2) of the Biocenters Purchase Agreement, the Borrower may purchase replacement machinery and equipment for use at a Specified Lease Location so long as (1) the Borrower finances each such purchase with the proceeds of purchase money Debt permitted under the terms of Section 7.1(b) and (2) the aggregate purchase price paid by the Borrower for such machinery and equipment does not exceed (1) $175,000, with respect to the Specified Lease Location located at 3000 Windy Hill Road SE, Suites 212 and 220, Marietta, Georgia 30067 and (2) $106,000, with respect to the Specified Lease Location located at 6290 Jimmy Carter Boulevard, Suites 206-208 and 210, Norcross, Georgia 30071."
"(a) Not waive, amend or modify, and not suffer or permit any waiver, amendment or modification of, any term of the charter, limited liability company agreement, partnership agreement, articles of incorporation, by-laws or other organizational documents of the Borrower or any other Loan Party or any Subsidiary, in each case except for those amendments and modifications that do not materially adversely affect the interests of the Agent or the Lender under the Loan Documents or in the Collateral (it being understood and agreed that any adverse impact on the effectiveness or validity of any Collateral Document or the Liens granted to the Agent thereunder shall each be deemed to materially adversely affect such interests of the Agent and the Lender). Notwithstanding the foregoing, each Loan Party may change its name, provided that such Loan Party (i) gives at least ten (10) days prior written notice thereof to the Agent and (ii) concurrently with the effectiveness of such name change, delivers to the Agent for filing properly completed uniform commercial code financing statements for the filing thereof by the Agent reflecting the new name and any other filings and documents required by law or the Loan Documents to provide the Agent with a continuing, perfected first priority Lien (subject only to Permitted Liens) in the Collateral of such Loan Party."
"(a) Not, and not suffer or permit any Loan Party to, maintain or establish any deposit account or securities account (other than the deposit accounts and securities accounts set forth in Section 7.12 of the Disclosure Letter, the Donor Account or other Excluded Accounts) without prior written notice to the Agent and unless the Agent, the Borrower or such other applicable Loan Party and the bank or securities intermediary at which such deposit account or securities account, as applicable, is to be opened or maintained enter into a Control Agreement regarding such deposit account or securities account, as applicable, on terms reasonably satisfactory to the Agent."
"7.18 Amendments to BPC Agreements. Not amend, supplement, waive or otherwise modify any term or provision of any BPC Agreement and/or the Biocenters Purchase Agreement in a manner adverse to Agent or Lender or which could reasonably be expected to have a Material Adverse Effect. For the avoidance of doubt, the term Acquired Assets set forth in the Biocenters Purchase Agreement (as in effect on the Closing Date) shall not be amended without the prior written consent of the Lender, which may be withheld for any reason whatsoever in the Lenders sole discretion."
"8.1.5 Representations; Warranties. (a) Any representation or warranty made by or in respect of any Loan Party herein or any other Loan Document is breached or is false or misleading in any material respect (without duplication of any materiality qualifier contained therein), or any schedule, certificate, financial statement, report, notice or other writing furnished by or on behalf of any Loan Party to the Agent or the Lender in connection herewith is false or misleading in any material respect on the date as of which the facts therein set forth are stated or certified or (b) any representation or warranty by or in respect of any Loan Party under Section 5.22 is breached or is false or misleading in any respect."
"8.2 Remedies. If any Event of Default described in Section 8.1.3 shall occur, the Obligations, including without limitation the Deferred Facility Fee, the Make-Whole Amounts and the Prepayment Premium Amount, as applicable, shall become immediately due and payable and all outstanding Commitments shall terminate, all without presentment, demand, protest, notice or further action of any kind; and, if any other Event of Default shall occur and be continuing, the Agent may, and upon the written request of the Lender shall, declare all of the Loans and other Obligations, including without limitation the Deferred Facility Fee, the Make-Whole Amounts and the Prepayment Premium Amount, to be due and payable and/or all or any part of the Commitments then outstanding to be terminated, whereupon such Loans and other Obligations shall become immediately due and payable (in whole or in part, as applicable), and such Commitments shall immediately terminate (in whole or in part, as applicable), all without presentment, demand, protest, notice or action of any kind. Any cash collateral delivered hereunder shall be applied by the Agent to any remaining Obligations and any excess remaining after the Obligations shall have been Paid in Full shall be delivered to the Borrower or as a court of competent jurisdiction may elect. Upon the declaration of the Obligations to be, or the Obligations becoming, due and payable pursuant to this Section8.2 all such Obligations shall bear interest at the Default Rate."
"(ii) 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 Agent is required to exercise as directed in writing by the Lender; provided that the Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the 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 any bankruptcy, insolvent, debtor relief or creditor rights law; and"
"(b) The Agent shall not be liable for any action taken or not taken by it (i)with the consent or at the request of the Lender, 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 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 Agent in writing by the Borrower or Lender."
"9.5 Successor Agent. The Agent may resign as the Agent at any time upon 10 days prior notice to the Lender and the Borrower. If the Agent resigns under this Agreement, the Lender shall appoint a successor agent for the Lender. If no successor agent is appointed prior to the effective date of the resignation of the Agent, the Agent may appoint, on behalf of the Lender after consulting with the Lender. Upon the acceptance of its appointment as successor agent hereunder, such successor agent shall succeed to all the rights, powers and duties of the retiring Agent and the term the Agent shall mean such successor agent, and the retiring Agents appointment, powers and duties as the Agent shall be terminated. After the Agents resignation hereunder as the Agent, the provisions of this Section 9 and Sections 10.4 and 10.5 shall continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was the Agent under this Agreement. If no successor agent has accepted appointment as the Agent by the date which is 30 days following a retiring Agents notice of resignation, the retiring Agents resignation shall nevertheless thereupon become effective and the Lender shall perform all of the duties of the Agent hereunder until such time as the Lender shall appoint a successor agent as provided for above."
"9.8 Reimbursement by Lenders. To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under Sections 10.3 or 10.4 of this Agreement to be paid by it to the Agent (or any sub-agent thereof) or any Related Party of the Agent (or any sub-agent thereof), Lender hereby agrees to pay to the Agent (or any such sub-agent) or such Related Party of the Agent (or any sub-agent thereof), as the case may be, such unpaid amount."
"(d) Each Borrower represents and warrants to the Agent that (i) each Borrower has one or more common shareholders, directors and/or officers, (ii) the business, corporate and limited liability company activities of each Borrower are closely related to, and substantially benefit, the business, corporate and limited liability company activities of the Borrowers, (iii) the financial and other operations of the Borrowers are performed on a combined basis as if the Borrowers constituted a consolidated corporate group, (iv) each Borrower will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from the application of each Loan hereunder, in each case, whether or not such amount is used directly by any Borrower and (v) all requests for Loans hereunder by any Borrower are for the exclusive and indivisible benefit of the Borrowers as though, for purposes of this Agreement, the Borrowers constituted a single entity."
"The Company (such term and each other capitalized term used and not otherwise defined herein having the meaning set forth in Section1.01) has requested that the Administrative Agent and the Lenders extend credit to the Company and the Borrowing Subsidiaries on the terms set forth herein, and the Administrative Agent and the Lenders whose signatures appear below have agreed to extend such credit on such terms. Accordingly, the parties hereto agree as follows:"
"Administrative Agent means JPMorgan Chase Bank, N.A., in its capacity as administrative agent hereunder and under the other Loan Documents, and its successors and permitted assigns in such capacity as provided in Article VIII. Unless the context requires otherwise, the term Administrative Agent shall include any Affiliate of JPMorgan Chase Bank, N.A. through which JPMorgan Chase Bank, N.A. shall perform any of its obligations in such capacity hereunder."
"Aggregate Designated Currency Revolving Exposure means, at any time, the sum of the Dollar Equivalents of (a)the aggregate principal amounts of all Revolving Loans then outstanding and made in Euro, Pounds Sterling or any other Designated Currency, (b)the aggregate undrawn amounts of all outstanding Letters of Credit denominated in Euro, Pounds Sterling or any other Designated Currency at such time and (c)the aggregate amounts of all LC Disbursements in respect of any such Letter of Credit that have not yet been reimbursed by or on behalf of the Borrowers at such time."
"Applicable Percentage means, at any time, with respect to any Revolving Lender, the percentage of the Aggregate Revolving Commitment represented by such Lenders Revolving Commitment at such time. If all the Revolving Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Revolving Commitments most recently in effect, giving effect to any assignments."
"Borrowing Multiple means (a)in the case of a Borrowing denominated in dollars, $1,000,000, (b) in the case of a Borrowing denominated in Euros, 1,000,000, (c) in the case of a Borrowing denominated in Pounds Sterling, 1,000,000 and (d)in the case of a Borrowing denominated in any Alternative Currency, the smallest amount of such Alternative Currency that is an integral multiple of 100,000 units of such currency and that has a Dollar Equivalent in excess of $1,000,000."
"Consolidated Cash Interest Expense means for any period for which such amount is being determined (without duplication of any payment), (a)Consolidated Interest Expense for such period, but only to the extent paid in cash in such period, plus (b)amounts paid in cash during such period in respect of amounts that were (or would have been) included in Consolidated Interest Expense during any prior period, plus (c)amounts paid in cash during such period in respect of amounts that will be included in Consolidated Interest Expense during any future period. If during such period the Company or any Subsidiary shall have consummated a Material Acquisition or a Material Disposition, Consolidated Cash Interest Expense for such period shall be calculated after giving pro forma effect thereto in accordance with Section1.04(b)."
"(c) is redeemable (other than solely for Equity Interests in such Person that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests) or is required to be repurchased by the Company or any Subsidiary, in whole or in part, at the option of the holder thereof;"
"Domestic Subsidiary means any Subsidiary (a)incorporated or organized under the laws of the United States of America, any State thereof or the District of Columbia or (b)that is considered to be a disregarded entity for U.S. Federal income tax purposes that, in the case of each of clauses (a)and (b), is not owned, directly or indirectly, by a Foreign Subsidiary that is a CFC."
"Existing Credit Agreement means the Amended and Restated Credit Agreement dated as of January27, 2014, as amended and restated as of December31, 2014, and as further amended thereafter, among the Company, the Borrowing Subsidiaries party thereto, the Lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent, as in effect immediately prior to the Effective Date."
"Extension Agreement means an Extension Agreement, in form and substance reasonably satisfactory to the Administrative Agent and the Company, among the Company, the Administrative Agent and one or more Extending Lenders, effecting an Extension Permitted Amendment and such other amendments hereto and to the other Loan Documents as are contemplated by Section2.22."
"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 (including any supra-national body exercising such powers or functions, such as the European Union or the European Central Bank)."
"Incremental Revolving Commitment means, with respect to any Lender, the commitment, if any, of such Lender, established pursuant to an Incremental Facility Agreement and Section2.21, 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 under such Incremental Facility Agreement."
"Interest Payment Date means (a)with respect to any ABR Loan (other than a Swingline Loan), the first Business Day following the last day of each March, June, September and December, (b)with respect to any LIBOR Loan or EURIBOR 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 LIBOR Borrowing or a EURIBOR Borrowing with an Interest"
"Period of more than three months duration, such day or days prior to the last day of such Interest Period as shall occur at intervals of three months duration after the first day of such Interest Period and (c)with respect to any Swingline Loan, the day that such Loan is required to be repaid."
"Interest Period means,with respect to any LIBOR Borrowing or EURIBOR Borrowing, the period commencing on the date of such Borrowing and ending on, at the election of the applicable Borrower, (a)the corresponding day in the week that is one or two weeks thereafter or (b)the numerically corresponding day in the calendar month that is one, two, three or sixmonths thereafter; 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, and (ii)any Interest Period of one, two, three or sixmonths duration 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. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing."
"LIBO Rate means, with respect to any LIBOR Borrowing for any Interest Period, the applicable Screen Rate as of the Specified Time on the Quotation Day; provided that, if (a)as a result of the unavailability of quotations, the applicable Screen Rate cannot be determined in accordance with the definition of such term and (b)the Company and the Lenders shall agree on an alternative rate for LIBOR Borrowings, then, for so long as the applicable Screen Rate cannot be determined, LIBO Rate shall mean such alternative rate."
"Loan Documents means this Agreement, the Incremental Facility Agreements, the Extension Agreements, the Refinancing Facility Agreements, the Borrowing Subsidiary Agreements, the Borrowing Subsidiary Terminations, the Collateral Agreement, the other Security Documents, any agreement designating an additional Issuing Bank as contemplated by Section2.05(j) and, except for purposes of Section9.02, any promissory notes delivered pursuant to Section2.09(c)."
"Majority in Interest, when used in reference to Lenders of any Class, means, at any time, (a)in the case of the Revolving Lenders, Lenders having Revolving Exposures and unused Revolving Commitments representing more than 50% of the Aggregate Revolving Exposure and the unused Aggregate Revolving Commitment at such time and (b)in the case of any Incremental Term Lenders of any Class, Lenders holding outstanding Incremental Term Loans of such Classrepresenting more than 50% of the aggregate principal amount of all Incremental Term Loans of such Classoutstanding at such time."
"Permitted Acquisition means the purchase or other acquisition by the Company or any Subsidiary of Equity Interests in, or all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of), any Person including Equity Interests of (a)any Subsidiary which serves to increase the ownership in such Subsidiary by the Company or any other Subsidiary therein and (b)any joint venture for the purpose of purchasing any or all of the Equity Interests of a joint venture partner; provided that (i)the business of such Person, or such assets, as the case may be, shall constitute a business permitted under Section6.03(b), (ii) on the date of execution of the definitive agreement in respect of such purchase or other acquisition (after giving effect to any such purchase or other acquisition and any related incurrence of Indebtedness, on a pro forma basis in accordance with Section1.04(b)) (A) no Default shall have occurred and be continuing and (B)the Company shall be in compliance with the covenants set forth in Sections6.11, 6.12 and 6.13 (calculated as of the last day of, or for, 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)) and (iii)to the extent the aggregate consideration for such acquisition (including Indebtedness assumed in connection therewith, all obligations in respect of deferred purchase price (including obligations under any purchase price adjustment but excluding earnout or similar payments) and all other consideration payable in connection therewith (including payment obligations in respect of noncompetition agreements or other arrangements representing acquisition consideration)) exceeds $35,000,000, the Company shall have delivered to the Administrative Agent a certificate of a Financial Officer of the Company certifying that all the requirements set forth in this definition have been satisfied with respect to such purchase or other acquisition, together with reasonably detailed calculations demonstrating satisfaction of the requirement set forth in clause (ii)above."
"(m) Liens (i)of a collection bank arising under Section4-210 of the Uniform Commercial Code (or similar law of any jurisdiction) on items in the course of collection, (ii)that are contractual rights of setoff relating to (A)the establishment of depositary relations with banks not granted in connection with the issuance of Indebtedness, (B)pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business, (C)netting or similar set-off arrangements entered into in connection with banking or trading activities and (D)commodity trading or other brokerage"
"Quotation Day means (a)with respect to any currency (other than Pounds Sterling) for any Interest Period, the day two Business Days prior to the first day of such Interest Period and (b)with respect to Pounds Sterling for any Interest Period, the first day of such Interest Period, in each case unless market practice differs for loans such as the applicable Loans priced by reference to rates quoted in the Relevant Interbank Market, in which case the Quotation Day for such currency shall be determined by the Administrative Agent in accordance with market practice for such loans priced by reference to rates quoted in the Relevant Interbank Market (and if quotations would normally be given by leading banks for such loans priced by reference to rates quoted in the Relevant Interbank Market on more than one day, the Quotation Day shall be the last of those days)."
"Restricted Payment means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the Company or any Subsidiary, or any payment or distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, exchange, conversion, cancelation or termination of, or any other return of capital with respect to, any Equity Interests in the Company or any Subsidiary."
"Sale/Leaseback Transaction means an arrangement relating to property owned by the Company or any Subsidiary whereby the Company or such Subsidiary sells or transfers such property to any Person and the Company or any Subsidiary leases such property, or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred, from such Person or its Affiliates."
"Screen Rate means (a)in respect of the LIBO Rate for any Interest Period, a rate per annum equal to the London interbank offered rate as administered by the ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for deposits in the applicable currency with a term equivalent 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 page of the Reuters screen, on the appropriate page of such other information service that publishes such rate as shall be selected by the Administrative Agent from time to time in its reasonable discretion); and (b)in respect of the EURIBO Rate for any Interest Period, the rate per annum determined by the Banking Federation of the European Union for such Interest Period as set forth on the Reuters screen page that displays such rate (currently EURIBOR01) (or, in the event such rate does not appear on a page of the Reuters screen, on the appropriate page of such other information service that publishes such rate as shall be selected by the Administrative Agent from time to time in its reasonable discretion). If, as to any currency, no Screen Rate shall be"
"subsidiary means, with respect to any Person at any date, (a)any corporation, partnership, limited liability company or other business entity of which Equity Interests representing more than 50% of the ordinary voting power of Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the election of directors or other managers is at the time owned by such Person or (b)that is, as of such date, otherwise Controlled, by such Person or one or more subsidiaries of such Person or by such Person and one or more subsidiaries of such Person."
"SECTION 1.04. Accounting Terms; GAAP; Pro Forma Calculations. (a) Except as otherwise expressly provided herein, all terms of an accounting or financial nature used herein shall be construed in accordance with GAAP as in effect from time to time; provided that (i)if the Company, by notice to the Administrative Agent, shall request an amendment to any provision hereof to eliminate"
"SECTION 2.03. Requests for Borrowings. To request a Revolving Borrowing, the applicable Borrower shall notify the Administrative Agent of such request by telephone (a)in the case of a LIBOR Borrowing or a EURIBOR Borrowing, not later than 12:00 noon, Local Time, three Business Days before the date of such proposed Borrowing (or, in the case of any LIBOR Borrowing to be made on the Effective Date, such shorter period of time as may be agreed to by the Administrative Agent) or (b)in the case of an ABR Borrowing, not later than 1:00 p.m., New YorkCity time, on the day of the proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or facsimile to the Administrative Agent of an executed written Borrowing Request. Each such telephonic and written Borrowing Request shall specify the following information in compliance with Section2.02:"
"(b) To request a Swingline Loan, the applicable Borrower shall notify the Administrative Agent of such request by telephone not later than 1:00 p.m., Local Time, on the day of the proposed Swingline Loan. Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by email to the Administrative Agent of an executed written Borrowing Request. Each such telephonic and written Borrowing Request shall specify the requested date (which shall be a Business Day) and the amount of the requested Swingline Loan and the Applicable Funding Account to which funds are to be disbursed or, in the case of any Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section2.05(f), the identity of the Issuing Bank that has made such LC Disbursement. Promptly following the receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise the Swingline Lender of the details thereof. If the Swingline Lender elects to make such Swingline Loan, the Swingline Lender shall make such Swingline Loan available to the applicable Borrower by means of a credit to the Applicable Funding Account (or, in the case of a Swingline Loan specified in the notice therefor to be made to finance the reimbursement of an LC Disbursement as provided in Section2.05(e), by remittance to the applicable Issuing Bank identified in such notice) by 3:00p.m., Local Time, on the requested date of such Swingline Loan."
"(b) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lenders share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a)of this Section and may, in reliance on such assumption, make available to the applicable Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and such Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment to the Administrative Agent, at (i)in the case of a payment to be made by such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii)in the case of such Borrower, the interest rate applicable to the subject Loan. If such Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to such Borrower the amount of such interest paid by such Borrower for such period. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lenders Loan included in such Borrowing. Any payment by any Borrower shall be without prejudice to any claim such Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent."
"occurrence of one or more events specified therein, in which case such notice may be revoked by the Company (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 of any Classshall 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."
"SECTION 2.09. Repaymentof Loans; Evidence of Debt. (a)The Company hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Incremental Term Loan, if any, of such Lender as provided in the applicable Incremental Facility Agreement. Each Borrower hereby unconditionally promises to pay (i)to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Revolving Loan of such Lender on the Revolving Maturity Date (or, if an earlier Borrowing Maturity Date shall have been specified in the applicable Borrowing Request, on such Borrowing Maturity Date) and (ii)to the Swingline Lender the then unpaid principal amount of each Swingline Loan on the earlier of the Revolving Maturity Date and the first date after such Swingline Loan is made that is the 15th or last day of a calendar month and is at least two Business Days after such Swingline Loan is made; provided that on each date that a Revolving Borrowing denominated in dollars is made, each Borrower shall repay all Swingline Loans that were outstanding for its own account on the date such Borrowing was requested."
"(b) The records maintained by the Administrative Agent and the Lenders shall be prima facie evidence of the existence and amounts of the obligations of the Borrowers in respect of the Loans, LC Disbursements, interest and fees due or accrued hereunder; provided that the failure of the Administrative Agent or any Lender to maintain such records or any error therein shall not in any manner affect the obligation of the Borrowers to pay any amounts due hereunder in accordance with the terms of this Agreement."
"SECTION 2.12. Fees. (a)The Company agrees to pay to the Administrative Agent for the account of each Revolving Lender (subject to Section2.20 in the case of a Defaulting Lender) a commitment fee, which shall accrue at the Applicable Rate on the average daily unused amount of the Revolving Commitment of such Lender during the period (i)from and including the date hereof (ii)to but excluding the date on which such Revolving Commitment terminates. Accrued commitment fees shall be payable in arrears on the first Business Day following the last day of March, June, September and December of each year and on the date on which the Revolving Commitments terminate. All commitment fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). For purposes of computing commitment fees, a Revolving Commitment of a Lender shall be deemed to be used to the extent of the outstanding Revolving Loans and LC Exposure of such Lender (and the Swingline Exposure of such Lender shall be disregarded for such purpose)."
"(f) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan and, in the case of a Revolving Loan, upon termination of the Revolving Commitments; provided that (i)interest accrued pursuant to paragraph (e)of this Sectionshall be payable on demand, (ii)in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving Loan prior to the end of the Revolving Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii)in the event of any conversion of a LIBOR Loan or a EURIBOR Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion."
"(b) If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i)the circumstances set forth in clause (a)(i)have arisen with respect to Loans of any Type or currency and such circumstances are unlikely to be temporary or (ii)the circumstances set forth in clause (a)(i)have not arisen but the supervisor for the administrator of the applicable Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which such Screen Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Company shall endeavor to establish an alternate rate of interest to the LIBO Rate or EURIBO Rate, as the case may be, that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the applicable currency at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other interest rate-related changes to this Agreement as the Administrative Agent may determine to be appropriate. Notwithstanding anything to the contrary in Section9.02, 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 Lenders (or, if Loans of only one Classare affected, a Majority in Interest of the Lenders of the affected Class) stating that such Lenders object to such amendment. If any alternate rate of interest established pursuant to this paragraph (b)shall be less than zero, such rate shall be deemed to be zero for all purposes of this Agreement."
"SECTION 2.16. Break Funding Payments. In the event of (a)the payment of any principal of any LIBOR Loan or EURIBOR Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any LIBOR Loan or EURIBOR Loan other than on the last day of the Interest Period applicable thereto, (c)the failure to borrow, convert or continue any LIBOR Loan or EURIBOR Loan on the date specified in any notice delivered pursuant hereto, (d)the failure to prepay any LIBOR Loan or EURIBOR Loan on a date specified therefor in any notice of prepayment given by the applicable Borrower (whether or not"
"(c) Evidence of Payment. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent."
"by applicable law or reasonably requested by such Borrower or the Administrative Agent as will enable such Borrower 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 Section2.17(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the 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 (which cost, expense or material prejudice would not have arisen but for the completion, execution or submission of such documents)."
"(A) any Lender that is a U.S. Person shall deliver to the Company 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 U.S. Federal backup withholding Tax;"
"(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section881(c) of the Code, (x)a certificate substantially in the form of Exhibit I-1 to the effect that such Foreign Lender is not a bank within the meaning of Section881(c)(3)(A) of the Code, a 10percent shareholder of the Company within the meaning of Section881(c)(3)(B) of the Code, or a controlled foreign corporation described in Section881(c)(3)(C) of the Code (a U.S. Tax Compliance Certificate) and (y)executed originals of IRS Form W-8BEN or W-8BEN-E, as applicable; or"
"(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Company 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 Company or the Administrative Agent), executed originals 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 supplementary documentation as may be prescribed by applicable law to permit the Company or the Administrative Agent to determine the withholding or deduction required to be made; and"
"(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied towards payment of the amounts then due hereunder ratably among the parties entitled thereto, in accordance with the amounts then due to such parties."
(i) the Swingline Exposure (other than any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section2.04(c)) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(d) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent that any Non-Defaulting Lenders Revolving Exposure after giving effect to such reallocation would not exceed such Non-Defaulting Lenders Revolving Commitment;
"(iv) if any portion of the LC Exposure of such Defaulting Lender is cash collateralized pursuant to clause (ii)above, then, during the period any such LC Exposure is cash collateralized, no participation fee shall accrue on such Defaulting Lenders LC Exposure under Section2.12(b) (other than, for the avoidance of doubt, any portion thereof reallocated among the Non-Defaulting Lenders pursuant to clause (i)above); and"
"In the event that a Bankruptcy Event with respect to any Person in respect of which any Revolving Lender is a subsidiary shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue, no Swingline Lender shall be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrowers or the applicable Revolving Lender reasonably satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder."
"outstanding, together with all interest thereon, and all other amounts accrued for the benefit of the Revolving Lenders, shall be repaid or paid (it being understood, however, that any Letters of Credit may continue to be outstanding hereunder), and the aggregate amount of such Refinancing Revolving Commitments does not exceeded the aggregate amount of the Revolving Commitments so terminated, and (iv)in the case of any Refinancing Incremental Term Loan Commitments, substantially concurrently with the effectiveness thereof, the Company shall obtain Refinancing Incremental Term Loans thereunder and shall repay or prepay any then outstanding Incremental Term Borrowings of any Classin an aggregate principal amount equal to the aggregate amount of such Refinancing Incremental Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Incremental Term Borrowings and any reasonable fees, premium and expenses relating to such refinancing) and, in the case of a prepayment of LIBOR Incremental Term Loans and EURIBOR Incremental Term Loans, shall be subject to Section2.16."
"SECTION 3.01. Organization; Powers. The Company and each Subsidiary is (a)(i)duly organized and validly existing and (ii)(to the extent the concept is applicable in such jurisdiction) in good standing under the laws of the jurisdiction of its organization, (b)(i)has all power and authority and (ii)all material 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 (c)qualified to do business, and (to the extent the concept is applicable in such jurisdiction) in good standing, in every jurisdiction where such qualification is required, except, in each case (other than clause (a)(i) with respect to the Borrowers) where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect."
"SECTION 3.03. Governmental Approvals; Absence of Conflicts. The Transactions (a)do not require any consent or approval of, registration or filing with or any other action by any Governmental Authority, except such as have been obtained or made and are in full force and effect, (b)will not violate any applicable law, including any order of any Governmental Authority, except to the extent any such violations, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, (c)will not violate the charter, by-laws or other organizational documents of the Company or any Subsidiary, (d)will not violate or result (alone or with notice or lapse of time, or both) in a default under any indenture or other agreement or instrument binding upon the Company or any Subsidiary or any of their assets, or give rise to a right thereunder to require any payment, repurchase or redemption to be made by the Company or any Subsidiary, or give rise to a right of, or result in, any termination, cancellation, acceleration or right of renegotiation of any obligation thereunder, in each case except to the extent that the foregoing, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect and (e)except for Liens created under the Loan Documents and Permitted Liens, will not result in the creation or imposition of any Lien on any asset of the Company or any Subsidiary."
"SECTION 3.09. Taxes. The Company and each Subsidiary has timely filed or caused to be filed all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except Taxes (or the requirement to file Tax returns with respect thereto) where (a)the validity or amount thereof is being contested in good faith by appropriate proceedings and for which the Company or such Subsidiary, as applicable, has set aside on its books reserves with respect thereto to the extent required by GAAP or (b)the failure to do so could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect."
"SECTION 3.12. Solvency. Immediately after the Borrowings on the Effective Date and the application of the proceeds thereof, (a)the fair value of the assets of the Company and its Subsidiaries, taken as a whole, exceeded their debts and liabilities, subordinated, contingent or otherwise, (b)the present fair saleable value of the assets of the Company and its Subsidiaries, taken as a whole, was greater than the amount required to pay the probable liability on their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured, (c)the Company and its Subsidiaries, taken as a whole, were able to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities became absolute and matured and (d)the Company and its Subsidiaries, taken as a whole, did not have unreasonably small capital with which to conduct the business in which they were engaged, as such business is conducted at the time of and is proposed to be conducted following the making of such Loan."
"SECTION 3.13. Disclosure. As of the Effective Date, neither the Confidential Information Memorandum nor any of the other reports, financial statements, certificates or other written information furnished by or on behalf of the Company or any Subsidiary to the Administrative Agent, the Arrangers or any Lender in connection with the negotiation of this Agreement or any other Loan Document, when taken as a whole (it being understood that each individual SEC filing shall speak only as of its date), contains any 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 materially misleading; provided that, with respect to forecasts or projected financial information, the Company and each Borrowing Subsidiary represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time made and at the time so furnished and, if furnished prior to the Effective Date, as of the Effective Date (it being understood that such forecasts and projections may vary from actual results and that such variances may be material)."
"(c) The Administrative Agent shall have received customary written opinions (addressed to the Administrative Agent, the Lenders and the Issuing Banks and dated the Effective Date) of each of (i)Greenberg Traurig LLP, counsel for the Company, and (ii)local counsel for the Luxembourg Borrower, in each case as shall be reasonably requested by the Administrative Agent."
"(h) The Administrative Agent and the Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable know your customer and anti-money laundering rules and regulations, including the USA PATRIOT Act, to the extent requested in writing no less than 10 days prior to the Effective Date (provided that the Company shall not be required to deliver such documentation and other information in respect of the Luxembourg Borrower to a Lender that is party to the Existing Credit Agreement to the extent such information has already been received by such Lender)."
(a) The Administrative Agent or its counsel shall have received from such Borrowing Subsidiary and the Company either (i)a counterpart of a Borrowing Subsidiary Agreement signed on behalf of each such party or (ii)written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile or other electronic imaging transmission) of a signed signature page of such Borrowing Subsidiary Agreement that each such party has signed a counterpart of a Borrowing Subsidiary Agreement.
"(d) The Administrative Agent shall have received a certificate, dated the date of the applicable Borrowing Subsidiary Agreement and signed by a Financial Officer of the Company, confirming satisfaction of the conditions set forth in Sections4.02(a) and 4.02(b) (in each case, deeming all references therein to the date of a Borrowing to refer to the date of such Borrowing Subsidiary Agreement)."
"SECTION 5.05. Maintenance of Properties. (a)The Company and each Subsidiary will keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear and casualty and condemnation excepted and except where the failure to keep and maintain such property could not reasonably be expected to result in a Material Adverse Effect."
"(b) The Company and each Subsidiary will take all actions reasonably necessary to protect all patents, trademarks, copyrights, licenses, technology, software, domain names and other intellectual property necessary to the conduct of its business as currently conducted, except in each case where the failure to take any such action, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect."
"(b) If any Subsidiary is formed or acquired after the Effective Date, the Company will within 45 days after the end of the fiscal quarter in which such formation or acquisition shall occur (or, in the case of a formation of a Subsidiary with aggregate assets in excess of $50,000,000 or an acquisition of a Subsidiary for an aggregate purchase price in excess of $50,000,000, within 45 days (or such longer period as the Administrative Agent may agree to in writing) after the date of such formation or acquisition, as applicable), notify the Administrative Agent thereof and cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary (if it is a Designated Subsidiary) and with respect to any Equity Interests in or Indebtedness of such Subsidiary owned by any Loan Party."
"(vi) (A)Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged, amalgamated or consolidated with or into a Subsidiary in a transaction permitted hereunder) after the date hereof, or Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a transaction permitted hereunder; provided that (x)such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged, amalgamated or consolidated) or such assets are acquired and is not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger, amalgamation or consolidation) or such assets being acquired, (y)at the time of the execution of the definitive agreement governing such acquisition, after giving effect to the incurrence of such Indebtedness on a pro forma basis in accordance with Section1.04(b), the Company shall be in compliance with the covenants set forth in Sections6.12 and 6.13 as of the last day of the period of four consecutive fiscal quarters then most recently ended for which the financial statements have been delivered pursuant to Section5.01(a) or 5.01(b) and (z)neither the Company nor any Subsidiary (other than such Person or any special purpose merger Subsidiary with which such Person is merged, amalgamated or consolidated or the Person that so assumes such Persons Indebtedness) shall Guarantee or otherwise become liable for the payment of such Indebtedness and (B)Refinancing Indebtedness in respect of any of the foregoing;"
"(viii) Indebtedness (including letters of credit, bank guarantees and similar instruments issued for the account of the Company or any Subsidiary) in the ordinary course of business in respect of (A)workers compensation, unemployment insurance and other social security laws, health, disability or other employee benefits or property, casualty or other insurance (including self-insurance) or other similar Indebtedness with reimbursement type claims and (B)bids, tenders, government contracts, trade contracts, leases, statutory obligations, surety, stay, customs and appeal bonds, performance bonds, bid bonds, performance and completion guarantees and obligations of a similar nature;"
"(b) Notwithstanding the foregoing provisions of this Section, none of the Company or any Subsidiary will create, incur, assume or permit to exist Priority Indebtedness in an aggregate amount at any time outstanding in excess of the greater of (i)$100,000,000 and (ii)5% of Consolidated Total Assets, other than (A)Indebtedness of the Company or any Subsidiary owing to the Company or any Subsidiary and (B)Indebtedness of any Subsidiary (including any Person that becomes a Subsidiary) of the type permitted pursuant to Section6.01 (a)(v), (vii), (viii), (ix), (x), (xi) or (xii)."
"(i) Liens (A)created under the Loan Documents, (B)on cash or deposits granted in favor of the Administrative Agent, the Swingline Lender or any Issuing Bank to cash collateralize any Defaulting Lenders obligations and (C)on Collateral securing Permitted Pari Passu Refinancing Securities; provided that the Liens securing such Permitted Pari Passu Refinancing Securities are subject to a Pari Passu Intercreditor Agreement;"
"transaction in which such Borrower is the surviving entity or the surviving entity expressly assumes the obligations of the relevant Borrower in a manner reasonably acceptable to the Administrative Agent (including any such merger, amalgamation or consolidation, the purpose of which is to re-domesticate or change the form of organization of any Borrower) including, if applicable, by delivering a Borrowing Subsidiary Agreement; provided that any merger of a Loan Party into a Subsidiary that is not a Loan Party must comply with Section6.04 (other than by reason of clause (g)thereof), (ii)the Company may merge into any newly formed corporation or other business entity for the purpose of re-domesticating or changing the form of organization of any Borrower; provided that (A)the surviving or resulting entity shall be organized in a jurisdiction within the United States and shall expressly assume the obligations of the Company under the Loan Documents and (B)after giving effect to such transaction, no Event of Default shall have occurred and be continuing, (iii)any Person (other than the Company) may merge, amalgamate or consolidate with any Subsidiary (including any such merger, amalgamation or consolidation, the purpose of which is to re-domesticate or change the form of organization of any Subsidiary) in a transaction in which the surviving entity is a Subsidiary (and, if any party to such merger, amalgamation or consolidation is a Subsidiary Loan Party, (A)the Subsidiary Loan Party is the surviving entity, (B)the surviving entity expressly assumes the obligations of the relevant Subsidiary Loan Party in a manner reasonably acceptable to the Administrative Agent or (C)such merger, consolidation or amalgamation is permitted as an Investment under Section6.04 (other than by reason of clause (g)thereof), in which case, if such Subsidiary Loan Party is a Borrowing Subsidiary, such Subsidiary shall prior to or simultaneously with such merger, amalgamation or consolidation enter into a Borrowing Subsidiary Termination), (iv)any Subsidiary may merge into, amalgamate with or consolidate with any Person in a transaction permitted under Section6.05 (other than by reason of clause (f)thereof) in which, after giving effect to such transaction, the surviving entity is not a Subsidiary and, if such Subsidiary is a Borrowing Subsidiary, such Subsidiary shall prior to or simultaneously with such merger, amalgamation or consolidation enter into a Borrowing Subsidiary Termination, (v)any Person (other than the Company) may merge into any Subsidiary in a transaction which constitutes an Investment permitted by Section6.04 (other than by reason of clause (g)thereof) and (vi)any Subsidiary may liquidate or dissolve if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders."
"(b) Investments (i)existing on (or contractually committed to as of) the Effective Date in Subsidiaries and other Investments set forth on Schedule6.04 and (ii)any modification, replacement, renewal or extension of any Investment described in clause(i) above so long as no modification, renewal or extension thereof increases the amount of such Investment except as otherwise permitted by this Section6.04;"
"(c) Investments by the Company and its Subsidiaries in Equity Interests in their Subsidiaries; provided that (i)any such Equity Interests held by a Loan Party shall be pledged in accordance with the requirements of the definition of the term Collateral and Guarantee Requirement and (ii)the aggregate amount of such Investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness (and non-ordinary course Guarantees of other obligations) of Subsidiaries that are not Loan Parties (excluding all such Investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (c)above) at any time outstanding shall not exceed the sum of (A)the greater of $125,000,000 and 6% of Consolidated Total Assets as of the most recent fiscal quarter end for which financial statements have been delivered pursuant to Section5.01(a) or (b)and (B) the Restricted Payment Basket (reduced by the aggregate amount of the Restricted Payment Basket utilized after the Effective Date under this paragraph, paragraph (d)or (e) of this Section, clause (vi)of Section6.08(a) or clause (v)of Section6.08(b));"
"(w) other Investments; provided that, at the time each such Investment is purchased, made or otherwise acquired, (A)no Default shall have occurred and be continuing or would result therefrom and (B)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."
(e) Dispositions of property to the extent that (i)such property is exchanged for credit against the purchase price of similar replacement property (including any exchange covered by Section1031 of the Code or comparable provision of any foreign jurisdiction) or (ii)the proceeds of such Disposition are promptly applied to the purchase price of such replacement property or other property useful in the business of the Company or its Subsidiaries;
"(h) (i)Dispositions and/or terminations of leases, subleases, licenses or sublicenses, which (A)do not materially interfere with the business of the Company and its Subsidiaries, taken as a whole, or (B)relate to closed facilities or the discontinuation of any business unit, line of business, division or product line, (ii)the leasing, subleasing, licensing or sublicensing of property in the ordinary course of business, (iii)any expiration of any option agreement in respect of real or personal property, (iv)any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort), in each case in the ordinary course of business and (v)Dispositions, abandonments, cancellations or lapses of intellectual property rights, or of issuances or registrations, or applications for issuances or registrations, of intellectual property rights, which, in the reasonable good faith determination of the Company, are not material to the conduct of the business of the Company or any Subsidiary, or are no longer economical to maintain in light of its use;"
"(i) (A)regularly scheduled interest and principal payments and payments of fees, expenses and indemnification obligations as and when due in respect of any Junior Indebtedness, other than payments in respect of Subordinated Indebtedness prohibited by the subordination provisions thereof and (B)payments in kind of interest on any Junior Indebtedness permitted under Section6.01 and (C)payment of any applicable high-yield discount obligation catch-up payments;"
"SECTION 6.13. Senior Secured Leverage Ratio. The Company will not permit the Senior Secured Leverage Ratio as of the last day of any fiscal quarter of the Company to exceed 3.25 to 1.00; provided that, following the completion of a Material Acquisition the purchase price of which is financed in whole or in part with Indebtedness of the Company or a Subsidiary in the amount of $80,000,000 or more incurred pursuant to Incremental Commitments that, on a pro forma basis, would result in an increase in the Companys Senior Secured Leverage Ratio, if the Company shall so elect by a notice delivered to the Administrative Agent within 30 days following such completion, (a Senior Secured Leverage Increase Election), and if a Total Leverage Increase Election shall have been made in respect of such Material Acquisition, such maximum Senior Secured Leverage Ratio shall be increased to 3.50 to 1.00 at the end of and for each fiscal quarter during the resulting Total Leverage Increase Period (the period during which any"
"(e) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in any Loan Document (other than those specified in clause(a), (b) or (d)of this Article), and such failure shall continue unremedied for a period of 30 days after notice thereof from the Administrative Agent to the Company;"
"Each of the Lenders and the Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan Documents, and authorizes the Administrative Agent to take such actions and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than the United States of America, each of the Lenders and the Issuing Banks hereby grants to the Administrative Agent any required powers of attorney to execute any Security Document governed by the laws of such jurisdiction on such Lenders or Issuing Banks behalf."
"Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Secured Obligations, it being understood and agreed that all powers, rights and remedies under the Collateral Agreement and other Security Documents may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Loan Document Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Secured Parties at such sale or other disposition."
"In case of the pendency of any proceeding with respect to any Loan Party under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan or any LC Disbursement 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 any Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:"
"Notwithstanding anything herein to the contrary, neither the Arrangers nor any Person named on the cover page of this Agreement as a Syndication Agent or a Documentation Agent shall have any duties or obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder."
"The provisions of this Article are for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and, except to the extent of (a)the Borrowers rights to consent pursuant to and subject to the conditions set forth in this Article VIII, (b)the acting in concert provisions set forth in the first sentence of the eighth paragraph of this Article VIII and (c)the Lien subordination provisions set forth herein, neither the Company nor any other Loan Party shall have any rights as a third party beneficiary of any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations provided under the Loan Documents, to have agreed to the provisions of this Article."
"(ii) if to the Administrative Agent, (A)if such notice relates to a Loan or Borrowing denominated in dollars, to JPMorgan Chase Bank, N.A., Loan and Agency Services Group, 500 Stanton Christiana Road, Floor 03, Ops 2, Newark, Delaware 19713, Attention of Demetrius Dixon (Fax No. (302) 634-3301; e-mail: demetrius.dixon@chase.com), with a copy to JPMorgan Chase Bank, N.A., 383 Madison Avenue, New York, New York 10179, Attention of Matthew Cheung (Fax No. (212) 270-3279; matthew.cheung@jpmorgan.com); or (B)if such notice relates to a Loan or Borrowing denominated in Euro, Pounds Sterling or any other Designated Currency, to J.P. Morgan Europe Limited, Loans Agency, 6th Floor, 25 Bank Street, Canary Wharf, London E145JP, United Kingdom, Attention of: Loans Agency (Fax No.44 207 777 2360; e-mail: Loan_and_Agency_London@jpmorgan.com), with a copy to JPMorgan Chase Bank, N.A., 383 Madison Avenue, NewYork, NY 10179, Attention of Matthew Cheung (Fax No. (212) 270-3279; matthew.cheung@jpmorgan.com);"
"(iii) if to any Issuing Bank, to it at its address (or fax number) most recently specified by it in a notice delivered to the Administrative Agent and the Company (whether to it or in its care) (or, in the absence of any such notice, to the address (or fax number) set forth in the Administrative Questionnaire of the Lender that is serving as such Issuing Bank or is an Affiliate thereof);"
"(c) Notwithstanding anything herein to the contrary, the Administrative Agent may, without the consent of any Secured Party, consent to a departure by any Loan Party from any covenant of such Loan Party set forth in this Agreement, the Collateral Agreement or in any other Security Document to the extent such departure is consistent with the authority of the Administrative Agent set forth in the definition of the term Collateral and Guarantee Requirement."
"(d) The Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, waivers or other modifications on behalf of such Lender. Any amendment, waiver or other modification effected in accordance with this Section9.02 shall be binding upon each Person that is at the time thereof a Lender and each Person that subsequently becomes a Lender."
"SECTION 9.04. Successors and Assigns. (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 hereby (including any Affiliate of any Issuing Bank that issues any Letter of Credit), except that (i)except as a result of any merger, consolidation or amalgamation permitted under Section6.03, no Borrower 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 any attempted assignment or transfer by any 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 and assigns permitted hereby (including any Affiliate of any Issuing Bank that issues any Letter of Credit), Participants (solely to the extent expressly provided in paragraph (c)of this Section), the Arrangers, the Syndication Agent, the Documentation Agent and, to the extent expressly contemplated hereby, the sub-agents of the Administrative Agent and the Related Parties of any of the Administrative Agent, the Arrangers, the Syndication Agent, the Documentation Agent, any Issuing Bank and any Lender) any legal or equitable right, remedy or claim under or by reason of this Agreement."
"(b)(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may 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) with the prior written consent (such consent not to be unreasonably withheld) of:"
"(v) Upon receipt by the Administrative Agent of an Assignment and Assumption executed by an assigning Lender and an assignee, the assignees completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder) and the processing and recordation fee referred to in this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that the Administrative Agent shall not be required to accept such Assignment and Assumption or so record the information contained therein if the Administrative Agent reasonably believes that such Assignment and Assumption lacks any written consent required by this Section or is otherwise not in proper form, it being acknowledged that the Administrative Agent shall have no duty or obligation (and shall incur no liability) with respect to obtaining (or confirming the receipt) of any such written consent or with respect to the form of (or any defect in) such Assignment and Assumption, any such duty and obligation being solely with the assigning Lender and the assignee. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph, and following such recording, unless otherwise determined by the Administrative Agent (such determination to be made in the sole discretion of the Administrative Agent, which determination may be conditioned on the consent of the assigning Lender and the assignee), shall be effective notwithstanding any defect in the Assignment and Assumption relating thereto. Each assigning Lender and the assignee, by its execution and delivery of an Assignment and Assumption, shall be deemed to have represented to the Administrative Agent that all written consents required by this Section with respect thereto (other than the consent of the Administrative Agent) have been"
"(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 this Sectionshall 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."
"SECTION 9.10. 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, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION."
"SECTION 9.12. Confidentiality. Each of the Administrative Agent, the Lenders and the Issuing Banks agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a)to its Related Parties on a need to know basis solely in connection with the Transactions, including accountants, legal counsel and other agents and advisors, 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; provided that such Person shall be responsible for its Related Parties compliance with this Section9.12, (b)to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Affiliates (including any self- regulatory authority, such as the National Association of Insurance Commissioners) (in which case such disclosing party agrees (except with respect to any audit or examination conducted by bank accountants or any governmental bank regulatory authority exercising examination or regulatory authority), to the extent practicable and not prohibited by law, to inform the Company promptly thereof prior to disclosure), (c)to the extent required by applicable law or by any subpoena or similar legal process (in which case such disclosing party agrees (except with respect to any audit or examination conducted by bank accountants or any governmental bank regulatory authority exercising examination or regulatory authority), to the extent practicable and not prohibited by law, to inform the Company promptly thereof prior to disclosure), (d)to any other party to this Agreement, (e)in connection with the exercise of any remedies under this Agreement or any other Loan Document or any suit, 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 confidentiality undertakings substantially similar to those of this Section, to (i)any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii)any actual or prospective counterparty (or its Related Parties) to any swap or derivative transaction relating to the Company or any Subsidiary and its obligations, (g)with the consent of the Company, (h)to the extent such Information (i)becomes publicly available other than as a result of a breach of this Section or (ii)becomes available to the applicable Person on a nonconfidential basis from a source other than the Company or a Subsidiary not known to be bound by any confidentiality agreement, or (i)to data service providers, including league table providers, that serve the lending industry (limited, in the case of this clause (i), to information of the type routinely provided by arrangers of syndicated credit facilities to such providers, such as information identifying the Company, the type, tenor and amount of the credit facility established hereby and the roles and titles of the arrangers and agents named on the cover hereof, but excluding any confidential Information provided by the Company). For purposes of this Section, Information means all information received from any Borrower relating to the Company or any Subsidiary or their businesses, other"
"SECTION 9.17. Non-Public Information. (a)Each Lender acknowledges that all information, including requests for waivers and amendments, furnished by any Borrower or the Administrative Agent pursuant to or in connection with, or in the course of administering, this Agreement will be syndicate-level information, which may contain MNPI. Each Lender represents to each Borrower and the Administrative Agent that (i)it has developed compliance procedures regarding the use of MNPI and that it will handle MNPI in accordance with such procedures and applicable law, including Federal, state and foreign securities laws, and (ii)it has identified in its Administrative Questionnaire a credit contact who may receive information that may contain MNPI in accordance with its compliance procedures and applicable law, including Federal, state and foreign securities laws."
"(b) Each Borrower and each Lender acknowledges that, if information furnished by any Borrower pursuant to or in connection with this Agreement is being distributed by the Administrative Agent through the Platform, (i)the Administrative Agent may post any information that any Borrower has indicated as containing MNPI solely on that portion of the Platform designated for Private Side Lender Representatives and (ii)if any Borrower has not indicated whether any information furnished by it pursuant to or in connection with this Agreement contains MNPI, such information shall be posted solely on that portion of the Platform designated for Private Side Lender Representatives. Each Borrower, at the request of the Administrative Agent, agrees to specify whether any information furnished to the Administrative Agent pursuant to, or in connection with, the Agreement contains MNPI, and the Administrative Agent shall be entitled to rely on any such designation by the Company without liability or responsibility for the independent verification thereof. Notwithstanding the foregoing, but without limiting the provisions of the immediately preceding sentence, the Borrowers shall be under no obligation to mark any information as suitable for Public Side Lender Representatives."
"Secured Obligation that, as to such Subsidiary Loan Party, is an Excluded Swap Obligation. In the event that any payment is made pursuant to any Guarantee by, or any amount is realized from Collateral of, any Subsidiary Loan Party as to which any Secured Obligations are Excluded Swap Obligations, such payment or amount shall be applied to pay the Secured Obligations of such Loan Party as otherwise provided herein and in the other Loan Documents without giving effect to such Excluded Swap Obligations, and each reference in this Agreement or any other Loan Document to the ratable application of such amounts as among the Secured Obligations or any specified portion of the Secured Obligations that would otherwise include such Excluded Swap Obligations shall be deemed so to provide."
"1.2. Assignee. The Assignee (a)represents and warrants that (i)it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption, to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii)it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii)from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv)it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section5.01 thereof, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Lender, (v)if it is a Lender that is a U.S. Person, attached hereto is an executed original of IRS Form W-9 certifying that such Lender is exempt from U.S. Federal backup withholding Tax and (vi)if it is a Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement (including Section2.17(f) thereof), duly completed and executed by the Assignee, and (b)agrees that (i)it will, independently and without"
"reliance on the Administrative Agent, the Assignor 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 in taking or not taking action under the Loan Documents and (ii)it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender."
"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 (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by facsimile or other electronic imaging 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 laws of the State of New York."
"11 | Specify Revolving Borrowing, Swingline Borrowing, Incremental Term Borrowing of any Series or, if any new Classof Commitments is established under Section2.22 or 2.24, a Borrowing of such Class. ---|--- 12 | If no election as to the currency is specified, then such Borrowing shall be in dollars. ---|--- 13 | Must comply with Sections 2.01, 2.02(c) and 2.04(a) of the Credit Agreement. ---|--- 14 | Specify ABR Borrowing, LIBOR Borrowing or EURIBOR Borrowing (LIBOR and EURIBOR not available for Swingline Borrowings). If no election as to the Type of Borrowing is specified, then if the specified currency of such Borrowing is (a)dollars, then the requested Borrowing shall be a LIBOR Borrowing with an Interest Period of 1 month, (b)Euro, then the requested Borrowing shall be a EURIBOR Borrowing and (c)Pounds Sterling or any other Designated Currency, then the requested Borrowing shall be a LIBOR Borrowing. ---|--- 15 | Applicable to LIBOR and EURIBOR Borrowings only. Shall be subject to the definition of Interest Period and can be a period of one, two, three or six months. If no Interest Period is specified, then the Borrower shall be deemed to have selected an Interest Period of one months duration. May not end after the applicable Maturity Date. ---|--- * * *"
"The undersigned, Knowles Corporation (the Company), refers 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 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 assigned to them in the Credit Agreement."
"The Company hereby terminates the status of [] (the Terminated Borrowing Subsidiary) as a Borrowing Subsidiary under the Credit Agreement. The Company represents and warrants that no Loans made to, or Letters of Credit issued for the account of, the Terminated Borrowing Subsidiary are outstanding as of the date hereof and that all amounts payable by the Terminated Borrowing Subsidiary in respect of interest and/or fees on or in respect of Loans and Letters of Credit (and, to the extent notified by the Administrative Agent, any Issuing Bank or any Lender, any other amounts payable under the Credit Agreement) pursuant to the Credit Agreement have been paid in full on or prior to the date hereof."
"[Attached as Schedule I hereto are the consolidated financial statements required by Section5.01(b) of the Credit Agreement as of the end of and for the fiscal quarter ended []] [or] [The consolidated financial statements required by Section5.01(b) of the Credit Agreement as of the end of and for the fiscal quarter ended [ ] and the then elapsed portion of the fiscal year have been [filed with the SEC and are available on the website of the SEC at http://www.sec.gov][made available on the Companys website]]. Such financial statements present fairly, in all material respects, the consolidated financial position, results of operations and cash flows of the Company as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year in accordance with GAAP, subject to normal year-end audit adjustments and the absence of certain footnotes.]"
"existence of any condition or event that constitutes a Default during or at the end of the accounting period covered by the attached financial statements or as of the date of this Certificate, except as set forth in a separate attachment, if any, to this Certificate, specifying the details thereof and any action taken or proposed to be taken with respect thereto, or (b)any change in GAAP or in the application thereof since the date of the consolidated balance sheet most recently heretofore delivered pursuant to Section5.01(a) or 5.01(b) of the Credit Agreement, that has had, or could have, a significant effect on the calculations of the Interest Coverage Ratio, the Total Leverage Ratio or the Senior Secured Leverage Ratio, except as set forth in a separate attachment, if any, to this Certificate, specifying the nature of such change and the effect thereof on such calculations."
"17 | Items to be set forth without duplication. ---|--- 18 | Consolidated EBITDA shall be calculated so as to exclude the effect of any gain or loss that represents after-tax gains or losses attributable to any sale, transfer or other disposition of assets (including asset retirement costs or returned surplus assets of any employee benefit plan) outside the ordinary course of business by the Company or any of its consolidated Subsidiaries. All amounts added back in computing Consolidated EBITDA for any period pursuant to clauses (a)of the definition of Consolidated EBITDA in the Credit Agreement, and all amounts subtracted in computing Consolidated EBITDA pursuant to clause (b)of the definition of Consolidated EBITDA in the Credit Agreement, to the extent such amounts are, in the reasonable judgment of a Financial Officer of the Company, attributable to any Subsidiary that is not wholly owned by the Company, shall be reduced by the portion thereof that is attributable to the noncontrolling interest in such Subsidiary. For purposes of calculating Consolidated EBITDA for any period, if during such period the Company or any Subsidiary shall have consummated a Material Acquisition or a Material Disposition, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto in accordance with Section1.04(b) of the Credit Agreement. ---|--- "
"(j)costs or expenses related to (A)the Transactions (as defined in the Existing Credit Agreement and the Credit 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:21"
"(l)charges, costs or expenses or any reserve with respect thereto to the extent (A)actually reimbursed or (B)reimbursable pursuant to any insurance, indemnification or reimbursement provisions or similar agreements; provided that, in the case of clause(B),the Company reasonably expects to receive reimbursement for such charges, costs or expenses in any of the next four fiscal quarters following the accrual of such charges, costs, expenses or reserve (it being understood that to the extent not actually so reimbursed within such four fiscal quarters, such charges, costs or expenses shall be deducted in calculating Consolidated EBITDA for such fiscal quarters):"
"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 (the Lenders) and JPMorgan Chase Bank, N.A., as Administrative Agent. Capitalized terms used but not defined herein have the meanings specified in the Credit Agreement or the Collateral Agreement referred to therein, as applicable."
"4\. Stock Ownership and other Equity Interests. Attached hereto as Schedule 3 is a true and correct list of (a)all the issued and outstanding stock, partnership interests, limited liability company membership interests or other Equity Interests of each Subsidiary of the Company and the record and beneficial owners of such stock, partnership interests, membership interests or other Equity Interests and (b)each equity investment of the Company or any Subsidiary that represents 50% or more of the Equity Interests of the Person in which such investment was made, in each case specifying the issuer and certificate number of, and the number and percentage of ownership represented by, such Equity Interests."
"Pursuant to the provisions of Section2.17 of the Credit Agreement, the undersigned hereby certifies that (i)it is the sole record 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)its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any promissory note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, 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 Borrower within the meaning of Section881(c)(3)(B) of the Code and (v)none of its direct or indirect partners/members is a controlled foreign corporation related to any Borrower as described in Section881(c)(3)(C) of the Code."
"1\. Same Terms. All terms used herein that are defined in the Original Credit Agreement shall have the same meanings when used herein, unless the context hereof otherwise requires or provides. In addition, from and after the Effective Date, (i)all references in the Original Credit Agreement and, where appropriate in the context, in the other Loan Documents to the Agreement shall mean the Original Credit Agreement, as amended and waived by this Amendment, as the same may hereafter be amended and waived from time to time, and (ii)all references in the Loan Documents to the Loan Documents shall mean the Loan Documents, as amended and waived by the Modification Papers, as the same may hereafter be amended and waived from time to time. In addition, the following terms have the meanings set forth below:"
"WHEREAS, on the terms and conditions set forth herein, (a)each Refinancing 2017 First Lien Term Lender has agreed to provide Refinancing 2017 First Lien Term Loans in the amount set forth on Schedule I hereto opposite such Refinancing 2017 First Lien Term Lenders name under the heading Refinancing 2017 First Lien Term Loan Commitment (each, a Refinancing 2017 First Lien Term Loan Commitment) and (b)each Incremental 2017 First Lien Term Loan Lender has agreed to provide an Incremental 2017 First Lien Term Loan in the amount reflected for such lender on Schedule II under the heading Incremental 2017 First Lien Term Loan Commitment (each, an Incremental 2017 First Lien Term Loan Commitment); and"
"(b) The Incremental 2017 First Lien Term Loans shall have the same terms as the Closing Date Term Loans, the Amendment No.2 Incremental Term Loans and the Refinancing 2017 First Lien Term Loans, shall constitute an upsize to the Closing Date Term Loans, shall be part of a single tranche of term loans with the Closing Date Term Loans, the Amendment No.2 Incremental Term Loans and the Refinancing 2017 First Lien Term Loans, and shall otherwise be subject to the provisions, including any provisions restricting the rights, or regarding the obligations, of the Loan Parties or any provisions regarding the rights of the Term Lenders, of the Amended Credit Agreement and the other Loan Documents."
"(c) From and after the Amendment No.4 Effective Date, each Incremental 2017 First Lien Term Loan Lender shall have all of the rights and obligations of a Term Lender, and all Incremental 2017 First Lien Term Loans shall be Term Loans for all purposes of the Amended Credit Agreement and the other Loan Documents."
"(d) The Administrative Agent shall have received (i)a Committed Loan Notice with respect to each of the Incremental 2017 First Lien Term Loans and the Refinancing 2017 First Lien Term Loans, in each case meeting the requirements of Section2.02 of the Existing Credit Agreement and (ii)a prepayment notice with respect to the Incremental 2016 First Lien Term Loan Prepayment, in each case without regard to the three (3)Business Day notice requirement for the borrowing and/or prepayment of Eurocurrency Rate Loans (and/or continuation and/or conversion of interest periods in connection therewith), which has been waived pursuant to this Amendment."
"(e) The Administrative Agent shall have received, at least three (3)Business Days prior to the Amendment No.4 Effective Date, all documentation and other information required by regulatory authorities under applicable know your customer and anti-money laundering rulesand regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent at least ten (10)Business Days prior to the Amendment No.4 Effective Date."
"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 the Amended Credit Agreement and the other Loan Documents and to exercise such powers and perform such duties as are delegated to the Administrative Agent by the terms of the Amended Credit Agreement and the other Loan Documents, together with such other powers as are reasonably incidental thereto, (d)specifies as its lending office and address for notices the offices set forth on the Administrative Questionnaire provided by it to the Administrative Agent prior to the date hereof, (e)acknowledges that this Amendment is a Loan Document for all purposes of the Amended Credit Agreement and the other Loan Documents and (f)agrees that this Amendment shall serve as the notice specified in Section2.14 of the Existing Credit Agreement with respect to the Incremental 2017 First Lien Term Loan Commitments and the Loans made pursuant hereto and waives any time period for delivery of such notice set forth therein."
"Agent to treat) the Amended Credit Agreement as not qualifying as a grandfathered obligation within the meaning of Treasury Regulation Section1.1471-2(b)(2)(i). As used herein, FATCA means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Amendment (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section1471(b)of the Internal Revenue Code or any applicable intergovernmental agreement."
"Amendment No. 4 Incremental Term Commitment means, as to each Amendment No. 4 Incremental Term Lender, its obligation to make Amendment No. 4 Incremental 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 II to Amendment No.4 under the caption Incremental 2017 First Lien Term Loan Commitment. The aggregate Amendment No.4 Incremental Term Commitments of all"
"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."
"Required Lenders means, as of any date of determination, Lenders holding more than 50% of the sum of the (a)Total Outstandings (with the aggregate amount of each Lenders risk participation and funded participation in L/C Obligations, as applicable, being deemed held by such Lender for purposes of this definition), (b)aggregate unused Term Commitments and (c)aggregate unused Revolving Credit Commitments; provided that the unused Term Commitments of, unused Revolving Credit Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders."
"and its business address at Via Torino no. 114, registered with the commercial register of Pavia under no. 02515520183, (v)WT Membrane Systems Pty Ltd (ACN 166 784 694), incorporated in Victoria, Australia with its registered office at 885 Mountain Hwy, Baywater Victoria, 3153 Australia, (vi)Siemens Treated Water Outsourcing Corp., a Delaware corporation, (vii)Siemens Water Technologies Pte Ltd (Co. Reg. No.201323301N), a private limited company organized under the laws of Singapore with its registered office in 60 MacPherson Road Singapore 348615, (viii)Siemens Water Technologies Limited, a company registered in England and Wales with registered number 8608208 with its registered office at Faraday House, Sir William Siemens Square, Frimley, Camberley, Surrey, GU16 8QD, England and (ix)Siemens Water Technologies LLC, a Delaware limited liability company."
"1.13 Incremental 2016 First Lien Term Loans. ~~For the avoidance of doubt~~ Notwithstanding anything in this Agreement or in Amendment No.1 to the contrary, following the effectiveness of Amendment No.4 on the Amendment No.4 Effective Date, the provisions governing the Incremental 2016 First Lien Term Loans ~~are ~~set forth in Amendment No.1 ~~and in the event of any conflict between~~ shall be superseded in their entirety by the terms ~~of Amendment No. 1 and the terms of~~set forth in this Agreement ~~with respect to the Incremental~~"
"(a) The Term Borrowing. Subject to the terms and conditions set forth herein, each Term Lender severally agrees to make a single term loan denominated in Dollars to the Borrower on the Closing Date in an amount not to exceed such Term Lenders Term Commitment. The Term Borrowing shall consist of Term Loans made simultaneously by the Term Lenders in accordance with their respective Term Commitments. Amounts borrowed under this Section2.01(a)and subsequently repaid or prepaid may not be reborrowed. Term Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein."
"(c) Incremental 2016 First Lien Term Loans. On the Incremental First Lien Commitments Effective Date (as defined in Amendment No. 1), the Borrower obtained Incremental 2016 First Lien Term Loans (as defined in Amendment No.1) pursuant to Amendment No.1 on the terms and conditions set forth in Amendment No.1. On the Amendment No.4 Effective Date, 100% of the aggregate principal amount of the Incremental 2016 First Lien Term Loans outstanding on such date immediately prior to the effectiveness of Amendment No.4 were refinanced with 100% of the Net Cash Proceeds of the Amendment No.4 Refinancing Term Loans."
"No.2 Effective Date in an amount not to exceed such Lenders Amendment No.2 Incremental Term Commitment. Amounts borrowed under this Section2.01(d)and subsequently repaid or prepaid may not be reborrowed. Immediately upon the funding of the Amendment No.2 Incremental Term Loans and without further action from any Person, (i)such Amendment No. 2 Incremental Term Loans shall automatically constitute additional Term Loans and (ii)such Amendment No.2 Incremental Term Lender shall automatically ~~constitue~~ constitute a Term Lender, in each case, for all purposes of this Agreement and the other Loan Documents."
"(e) Amendment No.4 Borrowing and Refinancing. Subject to the terms and conditions set forth in Amendment No.4, (x)each Amendment No.4 Incremental Term Lender severally agrees to make a single term loan denominated in Dollars to the Borrower on the Amendment No.4 Effective Date in an amount not to exceed such Lenders Amendment No.4 Incremental Term Commitment and (y)each Amendment No.4 Refinancing Term Lender severally agrees to make a single term loan denominated in Dollars to the Borrower on the Amendment No.4 Effective Date in an amount not to exceed such Lenders Amendment No.4 Refinancing Term Commitment. Amounts borrowed under this Section2.01(e)and subsequently repaid or prepaid may not be reborrowed. Immediately upon the funding of the Amendment No.4 Incremental Term Loans and the Amendment No.4 Refinancing Term Loans and without further action from any Person, (i)such Amendment No.4 Incremental Term Loans and such Amendment No.4 Refinancing Term Loans shall, in each case, automatically constitute additional Term Loans for all purposes of this Agreement and the other Loan Documents and (ii)such Amendment No.4 Incremental Term Lender and such Amendment No.4 Refinancing Term Lender shall, in each case, automatically constitute a Term Lender for all purposes of this Agreement and the other Loan Documents. For the avoidance of doubt, following the effectiveness of Amendment No.4 on the Amendment No.4 Effective Date there shall not exist under this Agreement any tranche of Term Loans other than a single tranche of Term Loans consisting of the Term Loans borrowed on the Closing Date, the Amendment No. 2 Incremental Term Loans, the Amendment No.4 Incremental Term Loans and the Amendment No.4 Refinancing Term Loans."
"with a Repricing Transaction (including any mandatory assignment pursuant to Section3.07 in connection therewith) and (y)any prepayment of Term Loans (including the Term Loans made on the Closing Date, the Amendment No. 2 Incremental Term Loans, the Amendment No. 4 Incremental Term Loans and the Amendment No.4 Refinancing Term Loans) pursuant to Section 2.05(b)(iii)in connection with a Repricing Transaction or any amendment to this Agreement in connection with a Repricing Transaction (in each case including any mandatory assignment pursuant to Section3.07 in connection therewith), in each case of clause (x)and clause (y)on or prior to the date that is six months following the Amendment No. ~~2~~ 4 Effective Date shall be subject to a premium equal to the principal amount of Term Loans subject to such prepayment or the principal amount of Term Loans affected by such amendment (or mandatorily assigned in connection therewith), as applicable, multiplied by 1%. Any prepayment of all or any portion of the outstanding Term Loans ~~on or~~ after the date that is six months following the ~~Closing~~ Amendment No.4 Effective Date shall not be subject to a premium. ~~Notwithtstanding the foregoing, the provisions of this Section 2.05(d)shall be inapplicable to the Incremental 2016 First Lien Term Loans, which shall be governed by the provisions of Amendment No.1.~~"
"(c) Each notice from the Borrower pursuant to this Section2.14 shall set forth the requested amount and proposed terms of the Incremental First Lien Commitments. At the time of the sending of such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten (10)Business Days from the date of delivery of such notice to the Lenders). Incremental First Lien Term Loans (or any portion thereof) may be made, and Revolving Commitment Increases, as applicable, may be provided, by any existing Lender or by any other bank or investing entity (but in no case (i)by any Loan Party, (ii)except in compliance with the proviso of Section2.14(i)below solely with respect to Incremental First Lien Term Commitments and Incremental First Lien Term Loans, by an Affiliated Lender, (iii)by any Defaulting Lender or any of its Subsidiaries, (iv)by any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in clause (iii), or (v)by any natural person) (each, except to the extent excluded pursuant to the foregoing parenthetical, an Incremental First Lien Lender), in each case on terms permitted in this Sectionand otherwise on terms reasonably acceptable to the Administrative Agent, provided that the Administrative Agent (and, in the case of a"
"(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 Section7.03(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 Section7.03(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."
"7.11 Maximum First Lien Leverage Ratio. Without the prior written consent of the Required Revolving Lenders, permit the First Lien Leverage Ratio, as calculated on a Pro Forma Basis, as of the last day of any fiscal quarter (but only if (other than as set forth in Section 4.02(d)) on the last day of such fiscal quarter the Total Revolving Credit Outstandings (exclusive of (x)all Cash Collateralized L/C Obligations and (y)the aggregate amount available to be drawn under all Letters of Credit that have not been Cash Collateralized in an amount not exceeding 50% of the Revolving Credit Facility) is in excess of the Covenant Trigger Amount), to be greater than 5.55:1.00."
"On the date hereof, after giving effect to the transactions contemplated by the Amendment, Holdings and its Subsidiaries, when taken as a whole on a consolidated basis, (a)have property with fair value greater than the total amount of their debts and liabilities, contingent (it being understood that the amount of contingent liabilities at any time shall be computed as the amount that, in 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), subordinated or otherwise, (b)have assets with present fair salable value not less than the amount that will be required to pay their liability on their debts as they become absolute and matured, (c)will be able to pay their debts and liabilities, subordinated, contingent or otherwise, as they become absolute and matured and (d)are not engaged in business or a transaction, and are not about to engage in business or a transaction, for which they have unreasonably small capital."
"The provisions of the Credit Agreement referred to below are hereby amended in accordance with this Article II. Except as expressly so amended, the parties hereto expressly acknowledge and agree that all other terms and provisions of the Credit Agreement and each other Loan Document shall continue in full force and effect in accordance with its terms."
"Section3.Assignments and Acceptances. In lieu of executing and delivering an Assignment and Acceptance, each existing Lender whose Pro Rata Share of the Commitments is decreasing in connection herewith (each an Assignor and, collectively, the Assignors) and each existing Lender and each New Lender whose Pro Rata Share of the Commitments is increasing in connection herewith (each an Assignee and, collectively, the Assignees) hereby agree to, and Borrower hereby accepts, the following:"
"Loan Documents means this Agreement, the Notes, the Letter of Credit Documents, the Guaranty, the Security Instruments, the Fee Letters, the Intercreditor Agreement, and each other agreement, instrument, or document executed by the Borrower, any Guarantor, or any of the Borrowers or a Guarantors Subsidiaries or any of their officers at any time in connection with this Agreement. For the avoidance of doubt, Loan Documents does not include Hedge Contracts."
"Intercreditor Agreement means that certain Intercreditor Agreement dated as of September29, 2017 among the Parent, the Borrower, each Guarantor, the Administrative Agent as First Lien Administrative Agent and the Second Lien Administrative Agent, as the same may be amended, restated or otherwise modified from time to time in accordance with the terms thereof."
"The Borrowing Base shall be determined in accordance with the standards set forth in Section2.02(e) and is subject to periodic redetermination pursuant to Sections 2.02(b) and 2.02(c), and mandatory reductions pursuant to Section2.02(d); provided that notwithstanding anything to the contrary in this Agreement, in no event shall the Borrowing Base exceed $600,000,000 unless agreed to by all of the Lenders and the Intercreditor Agreement has been, or will substantially contemporaneously will be, amended to increase the First Lien Cap (as such term is defined therein) and to make such other amendments, if any, as the parties to the Intercreditor Agreement shall agree."
"(p)Notices Under Other Loan Agreements. Promptly after the furnishing thereof, copies of any material written statement, report or notice furnished to any lender or agent or trustee by any Loan Party pursuant to the terms of any Second Lien Loan Document or any other indenture, loan or credit or other similar agreement, with respect to Indebtedness in excess of $5,000,000 (other than this Agreement) and not otherwise required to be furnished to the Lenders pursuant to any other provision of this Section5.06 or not otherwise publicly filed;"
"Notwithstanding the foregoing but subject to Section6 of the Third Amendment, (x)the Administrative Agent in its sole discretion may agree to a later date for the Loan Parties to comply with this Section5.08 so long as (i)such later date is no later than 30 days after the otherwise required date and (ii)in order to be in compliance with this Section5.08, the Loan Parties must not have to grant an Acceptable Security Interest in more than 5% (by value) of the Proven Reserves and the Oil and Gas Properties related thereto of the Loan Parties and no more than 5% (by value) of the Loan Parties other Oil and Gas Properties, and (y)in any event, if the Borrowing Base is to be redetermined on the date of an acquisition (other than the Borrowing Base redetermination effected under the Third Amendment), the requirements of this Section5.08(a) shall be satisfied on the date of such acquisition."
"(v)for the 12-month period commencing with the fourth anniversary of the date such hedging trade or transaction is created, (x) 75% of the reasonably anticipated production of natural gas, (y) 75% of the reasonably anticipated production of oil and (z) 75% of the reasonably anticipated production of natural gas liquids and condensate, in each case, from the Proven Reserves as set forth on the most recent Engineering Report, and"
"(a)after giving effect hereto, the representations and warranties contained in ArticleIV of the Credit Agreement and the representations and warranties contained in the Security Instruments, the Guaranty, and each of the other Loan Documents are true and correct in all material respects (unless already qualified by materiality or Material Adverse Change in the text thereof, in which case, such representations and warranties shall be true and correct in all respects) on and as of the date hereof, as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier date, in which case it shall have been true and correct in all material respects (unless already qualified by materiality or Material Adverse Change in the text thereof, in which case, such representations and warranties shall be true and correct in all respects) as of such earlier date;"
"Guarantor continues to unconditionally and irrevocably guarantee the full and punctual payment, when due, whether at stated maturity or earlier by acceleration or otherwise, all of the Guaranteed Obligations (as defined in the Guaranty), as such Guaranteed Obligations may have been amended by this Agreement, and its execution and delivery of this Agreement does not indicate or establish an approval or consent requirement by such Guarantor under the Guaranty, in connection with the execution and delivery of amendments, consents or waivers to the Credit Agreement or any of the other Loan Documents."
"Excluded Property shall have the meaning set forth in the Security Agreement. Notwithstanding anything in any Loan Document to the contrary, it is understood and agreed that 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) shall be deemed to be Excluded Property for purposes of the Loan Documents."
"Affiliate of any Person means any Person that controls, is controlled by, or is under common control with such Person. As used herein, control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities or other interests, by contract or otherwise."
"Taxes mean all taxes of any kind, charges, fees, customs, levies, duties, imposts, required deposits or other assessments, including all net income, capital gains, gross income, gross receipt, property, franchise, sales, use, excise, ad valorem, value added, transfer, gains, profits, license, net worth, asset, transaction, and other taxes, imposed upon any Person by any Law or Governmental Body, together with any interest and any penalties, or additions to tax, with respect to such taxes."
"2.1. Purchase and Sale of Assets. Subject to the terms and conditions of this Agreement, at the Closing, D-Vasive agrees to sell, convey and assign to Buyer, and Buyer agrees to purchase from D-Vasive, free and clear from all Encumbrances (other than Permitted Encumbrances), all of D-Vasives right, title and interest in, to and under the assets of D-Vasive used or held for use in the Business at Closing, including those assets specified below (which are hereinafter collectively referred to as the Assets), but specifically excluding the Excluded Assets (defined below):"
"(f) all rights, IP Claims and causes of action against third parties resulting from or relating to the operation of the Business and the Assets prior to the Closing Date, including without limitation, any rights, claims and causes of actions arising under warranties from vendors and other third parties and the proceeds of insurance."
"2.4. Purchase Price. Subject to the terms and conditions set forth in Section 2.5, in consideration for the sale, transfer, assignment, conveyance and delivery by D-Vasive to Buyer of the Assets and Sellers agreement to retain and satisfy the Excluded Liabilities, Parent shall (i) pay to Sellers Three Hundred Thousand U.S. Dollars ($300,000), less Registered IP Fees due and unpaid by D-Vasive at Closing unless otherwise agreed upon by the Parties (the Closing Cash), (ii) issue to Sellers of Sellers designees(s), and deliver to Escrow Agent four million and seven hundred and sixty thousand (4,760,000) unregistered shares of Common Stock (the Escrow Shares) to be held in escrow in accordance with the Escrow Agreement and subject to adjustment, in accordance with the Escrow Agreement; and (iii) issue and delivery to Sellers or Sellers designees(s) nineteen million and forty thousand (19,040,000) unregistered shares of Common Stock (the Closing Shares together with Escrow Shares as Purchase Price Shares) The Closing Cash, the Escrow Cash and Closing Shares are collectively referred to as the Purchase Price. The Purchase Price Shares shall be allocated to Sellers according to Annex A."
"3.1. Closing. Unless this Agreement is earlier terminated in accordance with Section 3.4, the closing of the transactions contemplated by this Agreement (the Closing) shall take place such date when each of the conditions set forth in this Article III have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), or at such other time as the Parties may agree (the Closing Date). The Closing shall take place remotely by the electronic exchange of documents and signatures, or at such location as the Parties hereto agree."
"(i) The representations and warranties of Buyer in this Agreement shall be true and correct in all material respects (except for such representations and warranties that are qualified by their terms by a reference to materiality, which representations and warranties as so qualified shall be true and correct in all respects) on and as of the Agreement Date and on and as of the Closing Date as though such representations and warranties were made on and as of such date (except for representations and warranties which address matters only as to a specified date, which representations and warranties shall be true and correct with respect to such specified date). Buyer shall have performed and complied in all material respects with all covenants, obligations and conditions of this Agreement required to be performed and complied with by it at or prior to the Closing."
"(c) Additional Conditions to Obligations of the Buyer. The obligations of the Buyer to consummate the transactions contemplated hereby shall be subject to the satisfaction at or prior to the Closing of each of the following conditions (it being understood that each such condition is solely for the benefit of the Buyer and may be waived by the Buyer in writing in its sole discretion without notice, liability or obligation to any Person):"
"ix. copies of the following, in each case certified as of the Closing Date by the Secretary of D-Vasive: (1) resolutions of D-Vasives board and shareholders authorizing the execution, delivery and performance of this Agreement and the other agreements that D-Vasive is required to execute and deliver pursuant to the terms of this Agreement; and (2) the signature and incumbency of the Persons authorized to execute and deliver this Agreement and the other agreements and certificates that D-Vasive is required to execute and deliver pursuant to the terms of this Agreement; and"
"(e) by Seller, if Buyer shall have breached any representation, warranty, covenant or agreement contained herein and such breach shall not have been cured within five business days after receipt by Buyer of written notice of such breach (provided, however, that no such cure period shall be available or applicable to any such breach which by its nature cannot be cured) and if not cured within the timeframe above and at or prior to the Closing, such breach would result in the failure of any of the conditions set forth in Section 3.2(b) to be satisfied."
"(d) except as set forth on Schedule 4.3(d) hereto, require the consent, authorization, order or approval of, filing or registration with, or waiver of any right of first refusal or first offer from, any Governmental Body or any Third Party, that has not been obtained, except as would not individually or in the aggregate be materially adverse to Sellers (any such consents, approvals, orders, authorizations, registrations, declarations and filings listed on Schedule 4.3(d) being referred to herein collectively as the D-Vasive Consents)."
"(a) Except as set forth on Schedule 4.6, there are no Actions pending or, to Sellers Knowledge, threatened, against D-Vasive or any of its officers, managers, employees or members in their capacity as such, with respect to the Business, the Assets or the Purchased Contracts. D-Vasive is not subject to any order (consent or other), judgment, decree, injunction or stipulation of or with any court or other Governmental Body that names D-Vasive and imposes a material ongoing obligation with respect to the operation of the Business and the Assets, which would have a Material Adverse Effect."
"(d) Third Party IP and Inbound Licenses. Schedule 4.12(d) contains a complete and accurate list of all Intellectual Property licensed to D-Vasive (other than non-customized, executable code, internal use software licenses for software that is not incorporated into, or used directly in the development, manufacturing, or distribution of, D-Vasives products or services and that is generally available on standard terms for less than $2,000), and the corresponding Contracts in which such Intellectual Property is licensed to D-Vasive."
"(i) Each U.S. patent application and U.S. patent owned by D-Vasive was filed within one year of a printed publication, public use, or offer for sale of each invention described in the U.S. patent application or U.S. patent. Each foreign patent application and foreign patent owned by D-Vasive was filed or claims priority to a patent application filed prior to each invention described in the foreign patent application or foreign patent being made available to the public. No trademark or trade name owned, used, or applied for by D-Vasive conflicts or interferes with any trademark or trade name owned, used, or applied for by any other Person. D-Vasive has no Knowledge with respect to and is not aware of any other basis for a claim that any of the D-Vasive Intellectual Property is invalid or unenforceable."
"(o) Effects of This Transaction. Neither the execution or delivery of this Agreement nor the performance of this Agreement and the consummation of the transactions contemplated hereby will, with or without notice or lapse of time, result in, or give any other Person the right or option to cause or declare, (i) a loss of, or Encumbrance or restriction on, any D-Vasive Intellectual Property or any license to Intellectual Property held by D-Vasive; (ii) a breach of any license agreement listed or required to be listed in Schedule 4.12(d); (iii) the release or delivery of any D-Vasive Intellectual Property to any other Person; or (iv) the grant, assignment, or transfer to any other Person of any license or other right or interest under, to, or in any of the D-Vasive Intellectual Property."
"(p) No Infringement of Third Party IP Rights. To Sellers Knowledge, D-Vasive has never infringed, misappropriated, or otherwise violated the Intellectual Property Rights of any other Person, which infringement or misappropriation would reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, to Sellers Knowledge no product, information, or service ever manufactured, produced, distributed, published, used, provided, or sold by or on behalf of D-Vasive, and no Intellectual Property ever owned, used, or developed by D-Vasive, has infringed, misappropriated, or otherwise violated the Intellectual Property Rights of any other Person, which infringement or misappropriation would reasonably be expected to have a Material Adverse Effect."
"(q) Pending, Threatened, or Possible IP Infringement Claims. There are no pending or to Sellers Knowledge threatened infringement, misappropriation, or similar claims or legal proceedings against D-Vasive or to Sellers knowledge against any other Person who would be entitled to indemnification by D-Vasive for such claim or legal proceeding. D-Vasive has never received any written notice of any actual, alleged, possible, potential, or suspected infringement or misappropriation of any other Persons Intellectual Property Rights by D-Vasive or by any product or service developed, manufactured, distributed, provided, or sold by or on behalf of D-Vasive."
"(b) To the knowledge of the Sellers, at all times since inception, D-Vasive has complied in all material respects with any Law applicable to D-Vasive relating to the security of Personal Information to which D-Vasive or Third Parties acting on D-Vasives behalf or otherwise having authorized access to the D-Vasives records, have access or otherwise collect or handle. To the knowledge of the Sellers, D-Vasives information security practices conform, and at all times have conformed, in all material respects with (i) any information security statements made by D-Vasive and (ii) all of the contractual commitments of D-Vasive, including, but not limited to, any contractual commitments to analytics providers, data providers, publishers, advertisers and advertising networks, exchanges and advertising networks, through which D-Vasive Offerings are offered. D-Vasive has made no statements to the general public regarding the information security practices of D-Vasive. No Actions have been asserted or, to the knowledge of the Sellers, are threatened against D-Vasive by any Person with respect to the security of Personal Information. To the knowledge of the Sellers, there has been no unauthorized access to or unauthorized disclosure or use of Personal Information owned or licensed by D-Vasive or in D-Vasives possession or control by or to any Third Party, including any Governmental Entity."
"5.1. Organization. Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada. Parent is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada. Buyer and Parent have all requisite corporate power and authority to own, lease or license and operate their business and assets as currently operated."
"(d) except as set forth on Schedule 5.3(d) hereto, require the consent, authorization, order or approval of, filing or registration with, or waiver of any right of first refusal or first offer from, any Governmental Body or any Third Party, that has not been obtained, except as would not individually or in the aggregate be materially adverse to Buyer or Parent (any such consents, approvals, orders, authorizations, registrations, declarations and filings listed on Schedule 5.3(d) being referred to herein collectively as the Buyers Consents)."
"6.4. Noncompetition. Except for any work done for and on behalf of Wyoming Tech, or any customers or affiliates of Wyoming Tech, for a period of eighteen months (18) after the Closing Date, D-Vasive and Professor Eric N. Johnson shall not, and for a period of six months (6) after the Closing Date, Henrik B. Christophersen, R. Wayne Pickell and D-Vasive shall not, directly or indirectly, invest in, own, manage, operate, finance, control, advise, render services to or guarantee the obligations of any Person engaged in or planning to become engaged in the commercial use or commercial development of the Assets, or any enhancements thereon, as intended to be used by the Buyer, Parent or any of Parents subsidiaries for tethered UAVs. For the avoidance of doubt, the restrictions set forth in the Section 6.4 shall not apply to the commercial use or commercial development of Contributing IP."
"6.5. Cooperation. After the Closing, and continuing for one (1) year from the Closing Date, to the extent it remains in existence, Sellers will cooperate with Buyer in its efforts to continue and maintain for the benefit of Buyer those business relationships of Sellers existing prior to the Closing and relating to the Business to be operated by Buyer after the Closing, including relationships with lessors, employees, regulatory authorities, licensors, customers, suppliers and others, which reasonably requested cooperation shall include, without limitation, assisting the Buyer from time to time with technical and engineering matter associated with updating and maintaining the applications forming the core part of the Business. Sellers will refer to Buyer all inquiries relating to such Business. Neither the Sellers nor the members of the Sellers shall take any action that would tend to diminish the value of the Assets after the Closing or that would interfere with the Business of Buyer to be engaged in after the Closing."
"7.7. Limitations. Except in the case of Losses arising from a Sellers fraud or willful and intentional breach, the indemnification provided hereunder by the Sellers shall be limited to the Purchase Price. Furthermore, each Indemnified Party entitled to indemnification hereunder shall take all reasonable steps to mitigate all losses, costs, expenses and damages after becoming aware of any event which could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder."
"8.1. Notices. Except as otherwise provided herein or in a Collateral Agreement, all notices and other communications hereunder and under the Collateral Agreements shall be in writing and shall be deemed to have been duly given upon receipt if (i) mailed by certified or registered mail, return receipt requested, (ii) sent by a nationally recognized overnight delivery service (receipt requested), fee prepaid, (iii) sent via facsimile with receipt confirmed, or (iv) delivered personally, addressed as follows or to such other address or addresses of which the respective party shall have notified the other."
"8.3. Entire Agreement. The agreements of the Parties, which is comprised of this Agreement, the Schedules and Exhibits hereto and the documents referred to herein, including the Collateral Agreements, sets forth the entire agreement and understanding between the Parties and supersedes any prior agreement or understanding, written or oral, relating to the subject matter of this Agreement and the Collateral Agreements."
"8.6. Waiver. The rights and remedies of the Parties to this Agreement and the Collateral Agreements are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement or the documents referred to in this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by Law, (a) no claim or right arising out of this Agreement or the Collateral Agreements can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given and will not operate as a waiver of, or estoppel with respect to, any subsequent or other failure or noncompliance; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement or the Collateral Agreements."
"Whereas, it is in the best interests of the Company and its subsidiaries to provide the Executive with the compensation and benefits as provided herein in order to retain the services of the Executive and to permit the Executive to focus on the interests of the Company, its subsidiaries and its stockholders."
"(ii) Annual Bonus. In addition to the Annual Base Salary, the Executive shall be eligible to earn, for each calendar year ending during the Employment Period, an annual bonus (an Annual Bonus) on terms and conditions, including performance goals, as set forth from time to time in the Companys Executive, Management and Sales Incentive Plan or such other short-term written bonus plan in effect during the Employment Period (collectively, the Bonus Plan). The Executives annual target bonus (the Target Bonus) shall be sixty percent (60 %) (the Target Percentage) of the Executives Annual Base Salary and may be increased (but not decreased) at the discretion of the Committee or the Board. Provided that the Executive is employed by the Company at the end of the applicable calendar year, the Executives Annual Bonus shall be fully vested upon the close of the calendar year to which it relates, and unless deferred by the written agreement of the Company and the Executive in accordance with Section 409A (as hereafter defined), shall be paid promptly after the close of such year but in any event on or before March 15 of the calendar year following the calendar year for which the Annual Bonus is earned."
"(iv) Incentive, Pension, Savings and Retirement Plans. During the Employment Period, the Executive shall be entitled to participate in all other compensation and incentive plans, practices, policies and programs, and all savings and retirement plans, practices, policies and programs, in each case on terms and conditions no less favorable than the terms and conditions generally applicable to the highest level of Companys United States-based executive employees."
"(v) Welfare Benefit Plans. During the Employment Period, the Executive and the Executives spouse and eligible dependents, as the case may be, shall participate in and shall receive all benefits under welfare benefit plans, practices, policies and programs provided by the Company and its affiliates on terms and conditions no less favorable than the terms and conditions generally applicable to the highest level of the Companys executive employees."
"(i) other than by reason of a physical or mental incapacity, any continued and willful failure of the Executive at any time to attempt in good faith to perform the Executives duties with the Company, including a continued and willful failure by the Executive to attempt in good faith to meet reasonable, material performance expectations that are not measured by Company economic performance, which is not cured by the Executive within sixty (60) days after receiving notice from the Company identifying such deficiencies; or"
"(d) Termination by Executive with or without Good Reason. The Executive may terminate the Employment Period and his employment with or without Good Reason. Termination with Good Reason shall be treated for purposes of this Agreement as a termination by the Company without Cause. For purposes of this Agreement, Good Reason shall mean, in the absence of a written consent of the Executive:"
"(i) Except as further set forth herein, the Executive shall notify the Company in writing of the existence of any circumstances constituting Good Reason within one hundred twenty (120) days after learning of any such circumstances. The Company shall then have an additional thirty (30) days to investigate and provide a written determination setting forth the results of such investigation and any applicable remedy. If the circumstances constituting Good Reason have not been fully cured by the Company within such thirty (30) day period, the Executive shall have an additional sixty (60) days to exercise the right to terminate for Good Reason."
"(iii) In the case of the Companys relocation of (or announced intention to relocate) Executives principal place of employment under Paragraph 4(d)(v), the circumstances giving rise to Executives right to terminate for Good Reason shall be deemed to have arisen, for purposes of Executives notice obligation, on the earliest date Executive has notice of the Companys intention to relocate Executives principal place of employment. Within thirty (30) days after receiving such notice, Executive shall notify the Company in writing of his intention to terminate his or her employment for Good Reason under Paragraph 4(d)(v) as of the effective date of such relocation. Executive may withdraw his notice of intention to terminate his employment under this paragraph, and the Company may revoke its relocation or intention to relocate Executives principal place of employment, in which case Paragraph 4(d)(v) shall not apply"
"(ii) If the Executives employment is terminated as a Non-Cause Termination, within six (6) months before a Change in Control, the Executive shall be entitled to receive the same payments and benefits as he would have received in accordance with Paragraph 5(f)(i) above had the Executives employment with the Company terminated immediately following the occurrence of the Change in Control."
"(i) If any Payments (as defined in Paragraph 5(h)(ii) to be made to or for the benefit of the Executive under this Agreement or under any plan or arrangement maintained by the Company or its affiliated companies are subject to the excise tax (the Excise Tax) under section 4999 of the Internal Revenue Code of 1986, as amended (the Code), then such Payments shall be reduced by the smallest amount necessary in order for no portion of the Executives total Payments to be subject to the Excise Tax."
(a) This Agreement is personal to the Executive and without the prior written consent of the Company 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 Executive and the Executives legal representatives.
"12. Section 409A Compliance. The parties intend that any severance or other compensation payable to the Executive under this Agreement be paid or provided in compliance with Section 409A of the Code and all regulations, guidance, and other interpretative authority issued thereunder (Section 409A) such that there will be no adverse tax consequences, interest, or penalties for the Executive under Section 409A as a result of the payments and benefits so paid or provided to him. The parties agree to modify this Agreement, or the timing (but not the amount) of the payment of the severance or other compensation, or both, to the extent necessary to comply with Section 409A. In addition, notwithstanding anything to the contrary contained in any other provision of this Agreement, the payments and benefits to be provided to the Executive under this Agreement shall be subject to the provisions set forth below."
"(b) In the case of any amounts that are payable to the Executive under this Agreement, or under any other nonqualified deferred compensation plan (within the meaning of Section 409A) maintained by the Company or any of its affiliated companies, in the form in the form of a series of installment payments, as defined in Treas. Reg. 1.409A-2(b)(2)(iii), (A) the Executives right to receive such payments shall be treated as a right to receive a series of separate payments under Treas. Reg. 1.409A-2(b)(2)(iii), and (B) to the extent any such plan does not already so provide, it is hereby amended to so provide, with respect to amounts payable to the Executive thereunder."
"(d) All expenses eligible for reimbursement hereunder shall be paid to the Executive promptly, but in any event by no later than December 31 of the calendar year following the calendar year in which such expenses were incurred. The expenses incurred by the Executive in any calendar year that are eligible for reimbursement under this Agreement shall not affect the expenses incurred by the Executive in any other calendar year that are eligible for reimbursement hereunder. The Executives right to receive any reimbursement hereunder shall not be subject to liquidation or exchange for any other benefit."
(e) The Executives or the Companys failure to insist upon strict compliance with any provision of this Agreement or the failure to assert any right the Executive or the Company may have hereunder shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.
"(f) Definitions set forth in this Agreement and any terms of this Agreement which conflict with the provisions of any other policy, plan, contract, or other arrangement which applies to the Executive shall supersede and replace the conflicting provisions of such other policy, plan, contract or arrangement to the extent necessary to resolve the conflict."
"necessary corporate action, (ii) the officer signing this Agreement on behalf of the Company is duly authorized to do so, (iii) the execution, delivery and performance of this Agreement does not violate any applicable law, regulation, order, judgment or decree or any agreement, plan or corporate governance document to which the Company is a party or by which it is bound and (iv) upon execution and delivery of this Agreement by the Executive and the Company, it shall be a valid and binding obligation of the Company enforceable against it in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors rights generally."
"Listed below are the statutes and legal theories from which the Executive has released and discharged the Releasees and under which the Executive will not bring any Claim. In the event that the law prohibits a release or waiver of Claims under any such statute or theory, the Executive hereby waives the right to seek or accept damages in a proceeding under the statute or theory and/or hereby acknowledges that the Executive has no valid Claim under such statute or theory. The Claims released are any alleged violation by the Company of:"
"6. Voluntary Agreement. The Executives decision to enter into this Release is based solely on the mutual considerations described above and is wholly his free act and deed. Before signing this Release, the Executive has had the opportunity for up to twenty-one (21) days to carefully consider the terms and ramifications of this Release and the opportunity to consult with his advisors, legal or otherwise, which the Company has encouraged the Executive to do."
"a. The Executive acknowledges that the information, observations and data, including trade secrets, obtained by the Executive while employed or retained by the Company and its controlled affiliates concerning their business and affairs (collectively, Confidential Information) are the property of those entities. Therefore, the Executive agrees that, except as required by law, court order, an arbitrator, a mediator or by other legal process, including, but not limited to, depositions, interrogatories, court testimony, arbitration, and the like, and except in connection with any litigation, arbitration or mediation involving the Employment Agreement (including the Exhibits thereto), including the enforcement of the Employment Agreement (including the Exhibits thereto), the Executive shall not at any time disclose to any unauthorized person or use for his own purposes any Confidential Information without the prior written consent of the Companys Board of Directors (which may delegate to an authorized officer authority to give such consent), unless and to the extent that: (i) the Confidential Information becomes generally known to and available for use by the public or generally known in the industry other than as a result of the Executives acts or omissions, (ii) the Executive discloses or uses such information in the performance of his duties as an employee and an officer of the Company (including services to its controlled affiliates) in the ordinary course of business, or (iii) the Executive discloses such information to third parties with whom the Company or its affiliates have entered into a non-disclosure agreement and such disclosure is made in the ordinary course performance of the Executives duties and responsibilities to the Company and its affiliates. The Executive shall deliver to the Company promptly following the termination of his employment, or at any other time the Company may reasonably request, all memoranda, notes, plans, records, reports, computer tapes, printouts and software and other documents and data (and copies thereof) embodying the Confidential Information or Work Product (as defined below) which the Executive may then possess or control, provided that the Executive may retain (i) papers and other materials of a personal nature, including, but not limited to, photographs, correspondence, personal diaries, calendars and rolodexes, personal files and phone books, (ii) information showing his compensation or relating to reimbursement of expenses, (iii) information that the Executive reasonably believes may be needed for tax purposes and (iv) copies of plans, programs and agreements relating to his or her employment, or termination thereof, with the Company. Notwithstanding the foregoing or anything in this Agreement to the contrary, Confidential Information or Work Product shall not include: any information in the Executives possession or known to the Executive prior to employment with the Company, including but not limited to information that is located on the Executives rolodex (whether paper or electronic), any information that is generally known in the industry or in the public domain, or any information that becomes generally known in the industry or in the public domain through no wrongful act on the Executives part."
"The Executive acknowledges that all discoveries, concepts, ideas, inventions, innovations, improvements, developments, methods, designs, analyses, drawings, reports, patent applications, copyrightable work and mask work (whether or not including any confidential information) and all registrations or applications related thereto, all other proprietary information and all similar or related information (whether or not patentable) which (i) relate to the Companys or any of its controlled affiliates actual or anticipated business, research and development or existing or future products or services and (ii) are conceived, developed or made by the Executive (whether individually or jointly with others) while employed by the Company or its affiliates or their predecessors in interest (collectively, Work Product), belong to the Company or such affiliate, as the case may be. The Executive shall disclose Work Product promptly to the Company or the applicable affiliate in the manner reasonably required under procedures established by those entities and, at the expense of the Company or applicable affiliate, as the case may be, perform all actions reasonably requested on behalf of any such entity (whether during or after any period of employment or engagement) to establish and confirm such ownership (including, without limitation, assignments, consents, powers of attorney and other instruments). The Employee acknowledges and agrees that the Companys or applicable affiliates ownership of Work Product includes all future rights arising from the Work Product, which rights do not yet exist, as well as new uses, media, means and forms of exploitation throughout the universe exploiting current or future technology yet to be developed."
"a. Non-competition. The Executive acknowledges that, during the course of the Executives employment or similar engagement with the Company and its controlled affiliates (including their respective predecessors in interest), the Executive has or will become familiar with the trade secrets of, and other Confidential Information concerning, those entities and that the Executives services have been, and are reasonably expected to be, of special, unique and extraordinary value to the Company and its affiliates. As a result, the Executive agrees that, during the Noncompete Period, the Executive shall not directly or indirectly own any interest in, manage, control, participate in, be employed by, consult with, render services for, or in any manner engage in any Competing Business within any geographical area in which the Company or any of its controlled affiliates engage or have active plans at the Date of Termination to engage in such businesses. The Executive acknowledges and agrees that this restriction is without specific geographic limitation inasmuch as the Company and its affiliates conduct business on a nationwide and international basis, that its sales and marketing prospects are for continued expansion both nationally and internationally, that access to the Companys Confidential Information would provide any national or international competitor with an unfair competitive advantage, and that, therefore, the restrictions set forth in this section are reasonable and properly required for the adequate protection of the legitimate interests of the Company. Nothing herein shall prohibit the Executive from owning beneficially not more than 2% of any class of outstanding equity securities or other comparable interests of any issuer that is publicly traded, so long as the Executive has no active participation in the business of such issuer. For purposes hereof, the term Competing Business means any business that is engaged in the production or sale of phosphates or other products that compete with the products produced, distributed or sold by the Company or its controlled affiliates (or are in the process of being actively developed by such entities) as of the Date of Termination. This restriction shall not prevent the Executive from working for a subsidiary, division, venture or other business or functional service unit (collectively a Unit) of a Competing Business so long as (i) such Unit is not itself a Competing Business, (ii) the Executive does not manage or participate in business activities or projects of any Unit that is a Competing Business, and (iii) the Executive otherwise strictly complies with the restrictive covenants contained in this Exhibit."
"b. Because the Executives services are unique (resulting in the Companys need for the restrictions in this schedule) and because the Executive has access to Confidential Information, Work Product and other proprietary resources representing valuable assets of the Company, the parties agree that the Company and its affiliates might suffer irreparable harm from a breach or threatened breach by the Executive of the restrictions set forth in this Exhibit and that money damages would not be an adequate remedy for any such non-compliant conduct. In the event of a breach or threatened breach of the restrictive covenants in this Exhibit, the Company (including its affected affiliates and their respective successors or assigns) in addition to other rights and remedies existing in their favor, shall be entitled to seek specific performance and/or injunctive or other equitable relief from a court of competent jurisdiction in order to enforce, or prevent any violations of, the provisions in this Exhibit (without posting a bond or other security, any requirement of which is waived by the Executive). In the event of any breach by the Executive of the restrictions set forth in this Exhibit, the Noncompete Period shall be tolled until such breach has been cured. If, at the time of enforcement, a court holds that restrictions contained in this Exhibit are unreasonable under circumstances then existing, the parties agree that the maximum period, scope or geographical area reasonable under such circumstances (or as otherwise allowed by governing law) are to be substituted for the stated period, scope or area provided in this Exhibit, and the restrictions are to be deemed reformed to that extent and shall be enforceable as so reformed to the fullest extent permitted by law to provide protection to the Company."
"(d)Cause means the occurrence of any of the following, as determined in good faith by the Board: (i)alcohol abuse or use of controlled drugs (other than in accordance with a physicians prescription) by Executive; (ii)illegal conduct or gross misconduct of Executive which is materially and demonstrably injurious to the Company or its Affiliates including, without limitation, fraud, embezzlement, theft or proven dishonesty; (iii)Executives conviction of a misdemeanor involving moral turpitude or a felony; (iv)Executives entry of a guilty or nolo contendere plea to a misdemeanor involving moral turpitude or a felony, (v) Executives material breach of any agreement with, or duty owed to, the Company or its Affiliates, or (vi)Executives failure, refusal or inability to perform, in any material respect, Executives duties to the Company or its Affiliates, which failure continues for more than fifteen (15)days after written notice thereof from the Company."
"(g)Confidential Information means all information respecting the business and activities of the Company, or any Affiliate, including, without limitation, the terms and provisions of this Agreement, information relating to vendor relations, inventory procurement and management, inventory distribution, marketing and sales, store operations, the clients, customers, suppliers, employees, consultants, computer or other files, projects, products, computer disks or other media, computer hardware or computer software programs, marketing plans, financial information, methodologies, know-how, processes, practices, approaches, projections, forecasts, formats, systems, data gathering methods and/or strategies of the Company or any Affiliate. Notwithstanding the immediately preceding sentence, Confidential Information shall not include any information that is, or becomes, generally available to the public (unless such availability occurs as a result of Executives breach of any portion of Section7(a) of this Agreement."
"(h)Disability means Executives termination of employment with the Company as a result of Executives incapacity due to reasonably documented physical or mental illness that is reasonably expected to prevent Executive from performing Executives duties for the Company on a full-time basis for more than six consecutive months; provided however, that no such incapacity will be deemed to be a Disability unless Executive would also be deemed to be Disabled under Code Section409A."
"(i)Good Reason means the occurrence of any of the following: (i)the assignment to Executive of any duties inconsistent with Executives position, authority, duties or responsibilities, or any other action by the Company which results in a material diminution in such position, authority, duties or responsibilities; (ii)a reduction by the Company in Executives annual salary, provided that if the salaries of substantially all of the Companys senior executive officers (including the Companys President and CEO) are contemporaneously and proportionately reduced, a reduction in Executives salary will not constitute Good Reason hereunder; (iii)the failure by the Company, without Executives consent, to pay to him any portion of his current compensation, except pursuant to a compensation deferral elected by Executive, other than an isolated and inadvertent failure which is remedied by the Company promptly after receipt thereof given by Executive; (iv)the relocation of the Companys principal executive offices to a location more than 35 miles from the location of such offices on the Effective Date, or the Companys requiring Executive to be based anywhere other than the Companys principal executive offices, except for required travel on the Companys business; or (v)the failure of the Company to obtain a satisfactory agreement from any successor to assume and agree to perform this Agreement."
"(b)Ownership of Inventions. Each Invention made, conceived or first actually reduced to practice by Executive, whether alone or jointly with others, during the term of this Agreement and each Invention made, conceived or first actually reduced to practice by Executive, within one year after the termination of this Agreement, which relates in any way to work performed for the Company or its Affiliates during the term of this Agreement, shall be promptly disclosed in writing to the Board. Such report shall be sufficiently complete in technical detail and appropriately illustrated by sketch or diagram to convey to one skilled in the art of which the invention pertains, a clear understanding of the nature, purpose, operations, and, to the extent known, the physical, chemical, biological or other characteristics of the Invention. Executive agrees to execute an assignment to the Company or its nominee of Executives entire right, title and interest in and to any Invention, without compensation beyond that provided in this Agreement. Executive further agrees, upon the request of the Company and at its expense, that Executive will execute any other instrument and document necessary or desirable in applying for and obtaining patents in the United States and in any foreign country with respect to any Invention. Executive further agrees, whether or not Executive is then an employee of the Company, to cooperate to the extent and in the manner reasonably requested by the Company in the prosecution or defense of any claim involving a patent covering any Invention or any litigation or other claim or proceeding involving any Invention covered by this Agreement, but all expenses thereof shall be paid by the Company."
"(d)Restrictive Non-Competition Covenant. Executive agrees that during the term of this Agreement and for the Restricted Non-Competition Period, Executive will not, directly or indirectly, own, manage, operate, control, be employed by, participate in, lend money, advise or furnish services or information of any kind (including consulting services) to, be compensated in any manner by, or be connected in any way with the management, ownership, operation or control of any of the entities list on Exhibit A hereto. Executive understands and acknowledges that the type of retail business conducted by the Company is national in scope. Executive further acknowledges that these restrictions are reasonable and necessary to protect the legitimate interests of the Company and its Affiliates and that the duration and geographic scope of these restrictions are reasonable given the nature of this Agreement and the position Executive will hold within the Company. Executive further acknowledges that these restrictions are included herein in order to induce the Company to employ Executive pursuant to this Agreement and in connection with the increased compensation and benefits provided hereunder and that the Company would not have entered into this Agreement, increased Executives compensation and other benefits or otherwise employed Executive in the absence of these restrictions."
"2.Covenant Not to Solicit Customers. During the term of this Agreement and for the Restricted Non-Solicitation Period, Executive shall not (except on the Companys behalf), directly or indirectly, on Executives own behalf or on behalf of any other person, firm, partnership, corporation or other entity, contact, solicit, divert, induce, call on, take away, do business or otherwise harm the Companys relationship, or attempt to contact, solicit, divert, induce, call on, take away, do business or otherwise harm the Companys relationship, with any past, present or prospective customer of the Company or any of its Affiliates (each, a Customer). Following the term of this Agreement, a past or prospective Customer shall be limited to such Customer measured within the two (2)year period prior to the date of termination hereunder. "
"(g)Compliance with Code Section280G. If any payment or distribution by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement or the lapse or termination of any restriction on or the vesting or exercisability of any payment or benefit (each a Payment), would be subject to the excise tax imposed by Section4999 of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law (such tax or taxes are hereafter collectively referred to as the Excise Tax), then the aggregate amount of Payments payable to Executive shall be reduced to the aggregate amount of Payments that may be made to Executive without incurring an excise tax (the Safe-Harbor Amount) in accordance with the immediately following sentence; provided that such reduction shall only be imposed if the aggregate after-tax value of the Payments retained by Executive (after giving effect to such reduction) is equal to or greater than the aggregate after-tax value (after giving effect to the Excise Tax) of the Payments to Executive without any such reduction. Any such reduction shall be made in the following order: (i)first, any future cash payments (if any) shall be reduced (if necessary, to zero); (ii)second, any current cash payments shall be reduced (if necessary, to zero); (iii) third, all non-cash payments (other than equity or equity derivative related payments) shall be reduced (if necessary, to zero); and (iv)fourth, all equity or equity derivative payments shall be reduced."
"9.Injunctive Relief. Executive understands and agrees that any breach by Executive of the Restrictive Covenants will cause continuing and irreparable injury to the Company for which monetary damages would not be an adequate remedy. Executive shall not, in any action or proceeding to enforce any of the provisions of this Agreement, assert the claim or defense that such an adequate remedy at law exists. In the event of such breach by Executive, the Company shall have the right to enforce the Restrictive Covenants by seeking injunctive or other relief in any court and this Agreement shall not in any way limit remedies of law or in equity otherwise available to the Company. "
"13.Applicable Law; Venue. This Agreement shall be construed in accordance with the laws of the State of Tennessee, without regard to the principles of conflicts of law, even if Employee executed this Agreement outside Tennessee or Davidson County, Tennessee, and even if some or all of Executives services are to be rendered outside Tennessee. All legal disputes between the parties shall have a venue in the courts of Davidson County, Tennessee. "
"SECTION 7. Rescission Right. Executive expressly acknowledges and recites that (a) Executive has read and understands this Release in its entirety, (b)Executive has entered into this Release knowingly and voluntarily, without any duress or coercion; (c)Executive has been advised orally and is hereby advised in writing to consult with an attorney with respect to this Release before signing it; (d)Executive was provided twenty-one (21)calendar days after receipt of the Release to consider its terms before signing it; and (e)Executive is provided seven (7) calendar days from the date of signing to terminate and revoke this Release in which case this Release shall be unenforceable, null and void. Executive may revoke this Release during those seven (7)days by providing written notice of revocation to the Company, care of its Vice President- Human Resources."
"1.2 Duties. During the Term, the Executive shall serve the Company as its President and Chief Executive Officer and shall have the powers, authorities, duties, and obligations of management usually vested in the office of the President and Chief Executive Officer of a company of a similar size and similar nature as the Company, and such other powers, authorities, duties, and obligations commensurate with such position as the Companys Board of Directors (the Board) may assign from time to time, all subject to the lawful directives of the Board and the corporate policies of the Company as they are in effect from time to time throughout the Term (including, without limitation, the Companys business conduct and ethics policies, as in effect from time to time). During the Term, the Executive shall report to the Board. Upon or as soon as practical following Executives appointment as President and Chief Executive Officer,"
"2. Term. The Term shall be a period of two (2) years commencing on the Effective Date and ending at the close of business on the 2nd anniversary of the Effective Date; provided, however, that the Term shall be extended on the same terms for successive one (1) year periods, unless either the Company or the Executive notifies the other party in writing not later than March 1st immediately prior to the anniversary of the Effective Date, beginning on March 1, 2018 and each March 1st thereafter (Notice of Non-Renewal). Notwithstanding the foregoing, the Term is subject to earlier termination as provided below in this Agreement."
"Compensation. ---|--- 3.1 Base Salary. During the Term, the Company shall pay the Executive a base salary (the Base Salary), which shall be paid in accordance with the Companys regular payroll practices in effect from time to time, but not less frequently than monthly. The Executives Base Salary shall be at an annualized rate of Six Hundred Twenty Five Thousand and 00/100 Dollars ($625,000.00) and shall be subject to an annual review by the Board."
"4.2 Reimbursement of Business Expenses. The Executive is authorized to incur reasonable expenses in carrying out the Executives duties for the Company under this Agreement and shall be entitled to reimbursement for all reasonable business expenses that the Executive incurs during the Term in connection with carrying out the Executives duties for the Company, subject to the Companys expense reimbursement policies and any pre-approval policies in effect from time to time. Manner of travel shall be according to Company policy."
"(iii) Notwithstanding anything to the contrary in the governing award agreement, the Board shall take such necessary steps to provide that any performance shares, stock options and restricted stock units will continue to vest according to their terms during the twelve (12) month period following the Severance Date. For the avoidance of doubt, unvested options shall continue to vest as if Executive were still employed during this twelve (12) month period, and vested options shall remain exercisable until the end of this twelve (12) month period. ---|--- |"
"(b) As used herein, Affiliate of the Company means a Person that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Company. As used in this definition, the term control, including the correlative terms controlling, controlled by and under common control with, means the possession, directly or indirectly, of ---|--- 8"
"(e) As used herein, Good Reason shall mean (i) a material diminution of the Executives duties, responsibilities, authority, title, position, compensation, or bonus opportunity as set forth in this Agreement; (ii) a material breach by the Company of any material provision of this Agreement; or (iii) relocation of the Executives place of employment, against the Executives wishes, more than fifty (50) miles from the location specified in Section 17; provided however that, with respect to items (i) and (ii) above, the Executive must provide the Company with written notice within ninety (90) days of the initial existence of the alleged Good Reason event or condition in accordance with Section 17 specifying with particularity the conduct that he contends constitutes Good Reason, and must provide the Company a reasonable period (not less than 30 days) in which to respond and/or cure such alleged grounds. ---|--- |"
"(h) As used herein, a Separation from Service occurs when the Executive dies, retires, or otherwise has a termination of employment with the Company that constitutes a separation from service within the meaning of Treasury Regulation Section 1.409A-1(h)(1). ---|--- 5.6 Notice of Termination. Any termination of the Executives employment under this Agreement shall be communicated by written notice of termination from the terminating party to the other party. This notice of termination must be delivered in accordance with Section 17 and must indicate the specific provision(s) of this Agreement relied upon in effecting the termination."
"6.4 Non-Disruption of Other Business Relationships. During the Term and for a period of twelve (12) months after the Severance Date, the Executive will not directly or indirectly through any other Person influence or attempt to influence customers, vendors, suppliers, licensors, lessors, joint venturers, associates, consultants, agents, or partners of the Company or any Affiliate of the Company to divert their business away from the Company or such Affiliate, and the Executive will not otherwise interfere with, disrupt or attempt to disrupt the business or professional relationships, contractual or otherwise, between the Company or any Affiliate of the Company, on the one hand, and any of its or their customers, suppliers, vendors, lessors, licensors, joint venturers, government regulators, associates, officers, employees, consultants, managers, partners, members or investors, on the other hand. In addition, Executive agrees that he shall also be bound by the restrictions and requirements in the Form Agreements."
"7. Withholding Taxes. Notwithstanding anything else herein to the contrary, the Company may withhold (or cause there to be withheld, as the case may be) from any amounts otherwise due or payable under or pursuant to this Agreement such federal, state and local income, employment, or other taxes as may be required to be withheld pursuant to any applicable law or regulation."
"8. Successors and Assigns. This Agreement is personal to the Executive and without the prior written consent of the Company 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 binding upon the Company and its successors and assigns and to the benefit of and be binding upon the Executives estate and/or personal representatives. As used in this Agreement, Company shall mean the Company as hereinbefore defined and any assignee or successor to all or substantially all of the Companys assets, as applicable, which assumes this Agreement by operation of law or otherwise."
"11.1 THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE STATE OF NEW YORK WILL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH JURISDICTIONS CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY."
"11.4 The parties agree that any legal proceeding to determine whether an issue should be arbitrated pursuant to section 11.2 of this Agreement, or any legal proceeding pursuant to sections 6.7 or 16 of this Agreement, shall be venued in Supreme Court, Albany County, New York or the federal courts of the Northern District of New York, and the parties consent to the jurisdiction of those courts. Any arbitration pursuant to section 11.2 shall be held in Albany, New York."
"13. Entire Agreement. This Agreement, together with each of the other agreements and exhibits referenced herein, embodies the entire agreement of the parties hereto respecting the matters within its scope. This Agreement supersedes all prior and contemporaneous agreements of the parties hereto that directly or indirectly bears upon the subject matter hereof, including, without limitation, any term sheet or offer letter prepared in connection herewith. Any prior negotiations, correspondence, agreements, proposals, or understandings relating to the subject matter hereof shall be deemed to have been merged into this Agreement, and to the extent inconsistent herewith, such negotiations, correspondence, agreements, proposals, or understandings shall be deemed to be of no force or effect. There are no representations, warranties, or agreements, whether express or implied, or oral or written, with respect to the subject matter hereof, except as expressly set forth herein. Notwithstanding the foregoing integration provisions, the Executive acknowledges having received and read the Companys Corporate Governance Principles, Code of Business Conduct and Ethics and the Compliance "
"16. Remedies. Each of the parties to this Agreement and any such person or entity granted rights hereunder whether or not such person or entity is a signatory hereto shall be entitled to enforce its rights under this Agreement specifically to recover damages and costs for any breach of any provision of this Agreement and to exercise all other rights existing in its favor. The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that each party may in its sole discretion apply to any court of law or equity of competent jurisdiction for specific performance, injunctive relief and/or other appropriate equitable relief (without posting any bond or deposit) in order to enforce or prevent any violations of the provisions of this Agreement. Each party shall be responsible for paying its own attorneys fees, costs, and other expenses pertaining to any such legal proceeding and enforcement regardless of whether an award or finding or any judgment or verdict thereon is entered against either party, provided however that the court shall have the authority to award reasonable attorneys fees, costs, and expenses to the party that substantially prevails."
"19. Legal Counsel. Each party recognizes that this is a legally binding contract and acknowledges and agrees that they have had the opportunity to consult with legal counsel of their choice. In any construction to be made of this Agreement, the parties agree the Agreement shall not be construed against either party on the basis of that party being the drafter of such language. The Executive agrees and acknowledges that he has read and understands this Agreement, is entering into it freely and voluntarily, and has been advised to seek counsel prior to entering into this Agreement and has had ample opportunity to do so. The Company shall reimburse the Executive for legal expenses he incurs with respect to the negotiation of this Agreement and related documents in an amount not to exceed fifteen thousand dollars ($15,000.00)."
"4.4 Employee Benefits. Executive shall be entitled to participate in and be provided with health insurance and all other benefit plans and programs offered to and or made available to the Companys employees. In addition, Executive shall be entitled to paid holidays in accordance with the Companys regular policy and twenty days of vacation in each calendar year and reasonable absences for illness. Any vacation time not taken during any calendar year of employment shall not be carried into any subsequent calendar year, and the Company shall not be obligated to pay Executive for any vacation time available to but not used by Executive within the prescribed period."
"(a) During the Restriction Period, Executive shall not, directly or indirectly, solicit, induce or influence, or attempt to induce or influence, any Customer to terminate a relationship which has been formed or that Executive knows is being formed with the Company or any of its subsidiaries, or to reduce the extent of, discourage the development of, or otherwise harm its relationship with the Company or any of its subsidiaries, including, without limitation, to commence or increase its relationship with any Competitor."
"(b) During the Restriction Period, Executive shall not, other than during the term of this Agreement consistent with his duties and obligations under Section 2 hereof, directly or indirectly, recruit, solicit, induce or influence, any Personnel known by Executive to be employed by the Company or any of its subsidiaries to discontinue, reduce the extent of, discourage the development of, or otherwise harm their relationship or commitment to the Company or its subsidiaries, including, without limitation, by employing, seeking to employ or inducing or influencing a Competitor to employ or seek to employ any Personnel of the Company or any of its subsidiaries, or inducing an employee of the Company or any of its subsidiaries to leave employment by the Company or its subsidiary, as the case may be. Any general solicitation to the public that is not directed at the Company and/or any of its subsidiaries shall not constitute a breach of this paragraph, and the restrictions set forth herein shall not apply to any person (i) who initiates contact with Executive or Executives then current employer in response to a general solicitation to the public, or (ii) who initiates contact with Executive or Executives then current employer in response to any general search conducted by a placement firm which does not expressly target such Personnel."
"11.1 Governing Law. This Agreement, its interpretation, performance and enforcement, and the rights and remedies of the parties hereto, shall be governed and construed by the laws of the State of Nevada applicable to contracts to be performed wholly within Nevada, without regard to principles of conflicts of laws and without the aid of any canon, custom or rule of law requiring construction against the drafter."
"11.8 Amendment or Termination. No agreement shall be effective to change, modify, waive, release, amend or terminate this Agreement, in whole or in part, unless such agreement is in writing, refers expressly to this Agreement and is signed by the party against whom enforcement of the change, modification, waiver, release, amendment or termination is sought."
"(a) The Company agrees that if the Executive is made a party, or is threatened to be made a party, to any action, suit or proceeding, whether civil, criminal, administrative or investigative (Proceeding), by reason of the fact that he is or was a director, officer or employee of the Company or any of its affiliates or is or was serving at the request of the Company as a director, officer, member, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether or not the basis of such Proceeding is the Executives alleged action in an official capacity while serving as a director, officer, member, employee or agent, the Executive shall be indemnified and held harmless by the Company to the fullest extent legally permitted or authorized by the Companys certificate of incorporation or bylaws or resolutions of the Companys Board of Directors or, if greater, by the laws of the State of Nevada, against all cost, expense, liability and loss (including, without limitation, attorneys fees, judgments, fines, excise taxes or other liabilities or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by the Executive in connection therewith, and such indemnification shall continue as to the Executive even if he has ceased to be a director, member, employee or agent of the Company or other entity and shall inure to the benefit of the Executives heirs, executors and administrators."
"(b) Notwithstanding anything in this Agreement to the contrary, to the extent that any amount or benefit that would constitute non-exempt deferred compensation for purposes of Section 409A of the Code (Non-Exempt Deferred Compensation) would otherwise be payable or distributable hereunder, or a different form of payment of such Non-Exempt Deferred Compensation would be effected, by reason of Executives termination of employment, such Non-Exempt Deferred Compensation will not be payable or distributable to Executive, and/or such different form of payment will not be effected, by reason of such circumstance unless the circumstances giving rise to such termination of employment meet any description or definition of separation from service in Section 409A of the Code and applicable regulations (without giving effect to any elective provisions that may be available under such definition). This provision does not affect the dollar amount or prohibit the vesting of any Non-Exempt Deferred Compensation upon a termination of employment. If this provision prevents the payment or distribution of any Non-Exempt Deferred Compensation, or the application of a different form of payment, such payment or distribution shall be made at the time and in the form that would have applied absent the non-409A-conforming event."
"| 1.| Position. The Executive shall be employed as the Executive Vice President and CCO of the Bank and shall perform such duties as may be assigned to the Executive from time to time by the Board of Directors of the Bank or as set forth in the by-laws of the Bank, including serving on the Bank Board of Directors committees as appointed from time to time by the Board of Directors, and coordinating with Bank personnel and third parties to the extent necessary to further the profitability and business of the Bank. The Executive further agrees to devote his full time and attention to the business of the Bank and will not accept any other employment without the prior written consent of the Bank; provided that the Executive shall have the right to participate in charitable and community activities and organizations, as long as such activities do not adversely affect the performance by the Executive of his duties and obligations to the Bank. ---|---|--- "
| (b)| Incentive/Bonus Payments: The Executive shall be entitled to participate in cash and/or equity incentive arrangements as may be approved by the Board of Directors of the Bank and pursuant to such terms as shall be authorized by the Board of Directors of the Bank in its discretion. ---|---|--- 
"| (a)| A Change in Control shall mean a change in control event as defined in Treasury Regulation Section 1.409A-3(i)(5) promulgated under Section 409A of the Internal Revenue Code of 1986, as amended (the Code), including a change in effective control of the Atlantic Coast Financial Corporation (the Company), a change in the ownership of the Company, and a change in the ownership of a substantial portion of the assets of the Company, as such terms are defined in Treasury Regulation Section 1.409A-3(i)(5). ---|---|--- "
"| 12.| Entire Agreement; Amendment. This Agreement sets forth the entire understanding of the parties hereto with respect to its subject matter and supersedes all prior agreements, negotiations and understandings. The amendments or termination of this Agreement may be made only in writing and executed by the Bank and the Executive. ---|---|--- "
"| (b)| If the Executive is removed from office and/or permanently prohibited from participating in the conduct of the Banks affairs by an order issued under Section 8(e)(4) or Section 8(g)(1) of the FDIA, all obligations of the Bank under this Agreement shall terminate as of the effective date of the order, but vested rights of the Executive and the Bank as of the date of termination shall not be affected. ---|---|--- "
"| (d)| Notwithstanding any other provision of this Agreement to the contrary, any amounts paid or payable under the FDIA to the Executive pursuant to this Agreement, or otherwise, are subject to and conditioned upon their compliance with Sections 18(k) and 32(a) of the FDIA and Part 359 of the FDICs rules and regulations, and any regulations promulgated under the FDIA. ---|---|--- "
"| 18.| Payments Subject to Clawback. Notwithstanding any other provisions in this Agreement to the contrary, any incentive-based or other compensation paid to the Executive pursuant to this Agreement or any other agreement or arrangement with the Bank which is subject to recovery under any law, government regulation or stock exchange listing requirement will be subject to such deductions and clawback as may be required to be made pursuant to such law, government regulation or stock exchange listing requirement (or any policy adopted by the Bank pursuant to any such law, government regulation or stock exchange listing requirement). ---|---|--- "
"EXECUTIVE: |  |  ---|---|---  |  |  |   |  |  |  /s/ Phillip S. Buddenbohm |  |  PHILLIP S. BUDDENBOHM |  |   |  |  |   |  |  |  ATLANTIC COAST BANK: |  |   |  |  |   |  |  |  By: | /s/ John J. Dolan |  |   | JOHN J. DOLAN, CHAIRMAN |  |  "
"| a.| Base Salary. The Company shall pay to the Executive an annual base salary (the Base Salary) at the rate of $375,000 per year. The Base Salary shall be reviewed no less frequently than annually and may be increased at the discretion of the Board and the Compensation Committee (the Compensation Committee) of the Board of Directors of Parent (the APEI Board). If the Executives Base Salary is increased, the increased amount shall be the Base Salary for the remainder of the employment term hereunder, except that the Company may reduce the Executives Base Salary at any time as part of a general salary reduction applied to all employees of the Company with annual salaries in excess of $150,000 (the Senior Executive Group) in which case the Executives reduced Base Salary shall be the Base Salary for the remainder of the employment term hereunder. Any such reduction in the Executives Base Salary shall be no more than the lesser of the median of the percentage salary reductions applied to the Senior Executive Group or twenty percent (20%). The Base Salary shall be payable biweekly or in such other installments as shall be consistent with the Companys payroll procedures. ---|---|--- "
6.Expenses. The Company shall reimburse the Executive for all reasonable expenses incurred by the Executive (in accordance with the policies and procedures in effect for senior executives of the Company) in connection with the Executives services under this Agreement. The Executive shall account to the Company for expenses in accordance with policies and procedures established by the Company.
"| b.| Reasonable Restrictions. The Executive acknowledges that the restrictions contained in Section 7(a) hereof are reasonable and necessary, in view of the nature of the Companys or Parent business, in order to protect the legitimate interests of the Company or Parent, and that any violation thereof would result in irreparable injury to the Company or Parent. Therefore, the Executive agrees that in the event of a breach or threatened breach by the Executive of the provisions of Section 7(a) hereof, the Company or Parent shall be entitled to obtain from any court of competent jurisdiction, preliminary or permanent injunctive relief restraining the Executive from disclosing or using any confidential information. Nothing herein shall be construed as prohibiting the Company or Parent from pursuing any other remedies available to it for breach or threatened breach, including, without limitation, recovery of damages from the Executive. ---|---|--- "
"| c.| Non-Solicitation. The Executive covenants and agrees that the Executive will not, during the Executives employment and for a period of one (1) year thereafter solicit, induce, entice, or encourage or attempt to solicit, induce, entice, or encourage any employee of the Company or Parent or any of the Company, the Parent, or any of their corporate controlled affiliates to render services for any other person, firm, entity, or corporation or to terminate her employment with the Company, the Parent, or any of their corporate controlled affiliates. ---|---|--- "
"| iii.| after a Change of Control (as defined in Section 11), the Executive does not continue as the President of American Public University System (or the most senior resulting entity succeeding to the business of the Company), or any other more senior office of the Company she holds at the time of the Change of Control; or ---|---|--- "
"| d.| Except where payments are required to be made under Section10(e), if the Company terminates the Executives employment other than for Cause or Disability or the Executive terminates the Executives employment for Good Reason as provided in Section 9(c) hereof, the Company shall pay the Executive the following amounts and shall have no further obligations to the Executive, provided, that, in the case of (ii) through (iv), on or before the sixtieth day following the Date of Termination, the Executive executes a release of claims substantially in the form attached hereto as Appendix A and all revocation periods applicable to such release have expired without the release being revoked: ---|---|--- "
"| iv.| to the extent not theretofore paid or provided, for twelve (12) months after the Date of Termination, 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 plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (these other amounts and benefits shall be hereinafter referred to as the Other Benefits). ---|---|--- "
"| ii.| an amount equal to the sum of (A) two (2) times the Executives Base Salary and (B) two (2) times the Annual Bonus (to the extent the Company and Executive performance were satisfying the performance targets, adjusted for the short period), in a lump sum in cash within sixty (60)days of the Change of Control Date of Termination, provided, that if Executives Change of Control Date of Termination occurs within sixty (60) days prior to the end of a calendar year, payments will be paid on the first payroll date in the year after the Change of Control Date of Termination; ---|---|--- "
"| v.| in the event that it is determined that any payment, benefit, or distribution described in this Section 10(e) or in Section 11 made by the Company, by any of its affiliates, by any person who acquires ownership or effective control or ownership of a substantial portion of the Companys assets (within the meaning of Section280G of the Code) or by any affiliate of such person, whether paid or payable or distributed or distributable pursuant to the terms of this Section10(e), Section 11 or otherwise (the Total Payments), would be subject to the excise tax imposed by Section4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are collectively referred to as the Excise Tax), then the payments due under this Agreement shall be reduced so that the Total Payments will not result in the imposition of such Excise Tax.The payment reduction contemplated by the preceding sentence shall be implemented by determining the Parachute Payment Ratio (as defined below) for each parachute payment within the meaning of Section280G of the Code, and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio.For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments with amounts having later payment dates being reduced first.For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment Ratio.For purposes hereof, the term Parachute Payment Ratio shall mean a fraction the numerator of which is the value of the applicable parachute payment for purposes of Section280G of the Code and the denominator of which is the intrinsic value of such parachute payment. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A)the entire amount of the Total Payments shall be treated as parachute payments within the meaning of Code Section280G(b)(2) and as subject to the Excise Tax, unless and to the extent, in the written opinion of the Companys independent accountants and reasonably acceptable to Executive, such payments (in whole or in part) are not subject to the Excise Tax; and (B)the value of any noncash benefits or any deferred payment or benefit (constituting a part of the Total Payments) shall be determined by the Companys independent auditors in accordance with the principles of Code Sections 280G(d)(3) and (4).Notwithstanding the foregoing, if (Y)the Total Payments exceed three (3)times the Executives base amount as defined within Section280G and (Z)the Executive would receive at least $50,000 more on a net after-tax basis if the Total Payments were not reduced pursuant to this section (after payment of the Excise Tax), then the Company will not reduce the Total Payments and Executive shall be responsible for the Excise Tax related thereto. For purposes of determining the net after-tax benefit, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of the federal income taxation applicable to individuals (without taking into account surtaxes or loss or reduction of deductions) for the calendar year in which the Date of Termination occurs and state and local income taxes at the highest marginal rates of taxation in the state and locality of the Executives residence on the Date of Termination. ---|---|--- "
"14.Survival. It is the express intention and agreement of the parties hereto that the provisions of Sections 7 and 8 hereof shall survive the termination of employment of the Executive and the expiration of this Agreement.It is the express intention and agreement of the parties hereto that the provisions of Section 10(d) shall survive the expiration of this Agreement for a period of eighteen (18) months.In addition, all obligations of the Company to make payments hereunder shall survive any termination of this Agreement on the terms and conditions set forth herein."
"17.Amendment; Waiver. This Agreement shall not be amended, altered or modified except by an instrument in writing duly executed by the parties hereto. Neither the waiver by either of the parties hereto of a breach of or a default under any of the provisions of this Agreement, nor the failure of either of the parties, on one (1) or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder, shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any provisions, rights or privileges hereunder."
"1.Separation and Payment. The Executive performed her duties in accordance with the Employment Agreement through [_______]. The Executives Date of Termination (as such term is defined in Section 9(e) of the Employment Agreement) is [_______]. The Executive shall be entitled to the compensation and benefits set forth in Section 10 of the Employment Agreement, subject to compliance with the terms of the Employment Agreement and this Release. Other than the payments referred to in Section 10 of the Employment Agreement, the Executive has been paid all compensation due and owing to her under this Release and under any employment or other contract the Executive has or may have had with the Company (including but not limited to the Employment Agreement) or from any other source of entitlement, including all wages, salary, bonuses, incentive payments, profit-sharing payments, leave, severance pay or other benefits."
"13.Governing Law.This Release, for all purposes, shall be construed in accordance with the laws of the State of West Virginia without regard to conflicts of law principles. Subject toparagraph 14 below,any action or proceeding by either of the Parties to enforce this Release shall be brought only in a state or federal court located in the State of West Virginia, and the Parties hereby irrevocably submit to the exclusive jurisdiction of such courts and waive the defense of inconvenient forum to the maintenance of any such action or proceeding in such venue."
"14.Arbitration. Any controversy, dispute or claim arising out of or relating to this Release, including the obligations to make payments pursuant to the Employment Agreement, any modification or extension hereof, or any breach hereof (including the question whether any particular matter is arbitrable hereunder) shall be settled exclusively by arbitration, in the District of Columbia in accordance with the rules of the American Arbitration Association then in force (the Rules). Such arbitration shall be effected by arbitrator(s) appointed by the American Arbitration Association in accordance with the Rules. The Parties hereto agree to abide by all awards and decisions rendered in an arbitration proceeding in accordance with the foregoing, and all such awards and decisions may be filed by the prevailing Party with any court having jurisdiction over the person or property of the other Party as a basis for judgment and the issuance of execution thereon. The fees of the arbitrator(s) and related expenses of arbitration shall be apportioned among the Parties as determined by the arbitrator(s). Unless otherwise agreed by the Parties to the arbitration, all hearings shall be held, and all submissions shall be made by the Parties, within thirty (30) days of the date of the selection of the last arbitrator, and the decisions of the arbitrator(s) shall be made within thirty (30) days of the later of the date of the closing of the hearings or the date of the final submissions by the Parties. The Parties consent to the jurisdiction of the Courts of the District of Columbia and of the United States District Court for the District of Columbia, for all purposes in connection with the arbitration. The Parties consent that any process or notice of motion or other application to either of said courts, and any paper in connection with arbitration, may be served by certified mail, return receipt requested, or by personal service, or in such other manner as may be permissible under the rules of the applicable court or arbitration tribunal, provided that a reasonable time for appearance is allowed."
"(a)Immediately prior to the consummation of a Change in Control (as defined below), the vesting of all unvested shares subject to outstanding equity awards with time-based vesting issued to Executive by Company shall be accelerated in full and, if applicable, such equity awards shall become exercisable or shall be settled in full immediately prior to such Change in Control provided that either (i) Executives employment with Company has not terminated prior to such Change in Control or (ii) the Company has terminated Executives employment within 90 days prior to the Companys entry into a definitive agreement to consummate such Change of Control. For the purposes of this Agreement, Change in Control shall mean (i) the acquisition by any person, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 50% or more of either the then outstanding equity interests in Company or the combined voting power of Companys then outstanding voting securities; or (ii) the consummation of a reorganization, merger or consolidation of Company or the sale of all or substantially all of the assets of Company, in each case with respect to which persons who held equity interests in Company immediately prior to such reorganization, merger, consolidation or sale do not immediately thereafter own, directly or indirectly, 50% or more of the combined voting power of the then-outstanding securities of the surviving or resulting corporation or other entity; provided, however, that any such transaction consummated in connection with, or for the purpose of facilitating, an initial public offering shall not constitute a Change in Control hereunder; provided further, however, that a Change in Control shall not include a transaction undertaken for the principal purpose of restructuring the capital of Company, including, but not limited to, reincorporating Company in a different jurisdiction, converting Company to a limited liability company or creating a holding company (provided that such restructuring does not have the effects on control described in subparagraphs 3.3(i) and (ii).Notwithstanding the foregoing, a Change in Control shall not occur for purposes of this Agreement unless such Change in Control constitutes a change in control event under Section 409A of the Code and the regulations thereunder."
"4.At-Will Employment.Executives employment with Company is at-will and not for any specified period and may be terminated at any time, with or without Cause or Good Reason or advance notice, by either Executive or Company, although subject to the provisions of Sections 5 through 7 below.No representative of Company, other than the Companys Board of Directors, has the authority to alter the at-will employment relationship.Any change to the at-will employment relationship must be by specific, written agreement signed by Executive and the Companys Board of Directors. Nothing in this Agreement is intended to or should be construed to contradict, modify or alter this at- will relationship."
"WHEREAS, this Agreement shall become effective upon and subject to the occurrence of the Effective Date (as defined in the Plan), provided that Executive continues to be employed by the Company immediately prior to the Effective Date, and at which time the Original Employment Agreement shall be superseded by this Agreement and of no further force or effect; and"
"(b) Performance of Duties. Throughout Executives employment with the Company, Executive shall faithfully and diligently perform Executives duties in conformity with the lawful directions of the Company and serve the Company to the best of Executives ability. Except as consented to by the Board of Directors of the Company, Executive shall devote Executives full business time and best efforts to the business and affairs of the Company. In Executives capacity as the Chief Executive Officer of the Company, Executive shall have such duties and responsibilities as Executive may be assigned by the Board of Directors or Chief Executive Officer not inconsistent with Executives position as Chief Executive Officer. Executive will perform Executives duties primarily from the Companys offices in New York City, New York, subject to reasonable travel requirements. Notwithstanding anything in this Section 2(b) or Section 6(a) to the contrary, Executive shall be permitted to continue with his appointment as a faculty member of Mount Sinai School of Medicine, provided that such duties do not interfere with his duties as Chief Executive Officer of the Company and subject in all cases to the ongoing approval of the Board of Directors of the Company."
"(e) Indemnification. The Company shall indemnify Executive, to the fullest extent permitted by its certificate of incorporation or by-laws, for any and all liabilities to which Executive may be subject as a result of, in connection with or arising out of Executives employment by the Company hereunder, as well as the costs and expenses (including reasonable attorneys fees) of any legal action brought or threatened to be brought against Executive or the Company as a result of, in connection with or arising out of such employment or board service (such costs and expenses being advanced by the Company in accordance with the procedures set forth in the Companys by- laws). Executive shall be entitled to the full protection of any insurance policies which the Company may elect to maintain generally for the benefit of its officers."
"(f) No Other Compensation or Benefits; Payment. The compensation and benefits specified in this Section 3 and in Section 5 of this Agreement shall be in lieu of any and all other compensation and benefits. Payment of all compensation and benefits to Executive specified in this Section 3 and in Section 5 of this Agreement (i) shall be made in accordance with the relevant Company policies in effect from time to time to the extent the same are consistently applied, including normal payroll practices, and (ii) shall be subject to all legally required and customary withholdings."
"(d) Termination by the Company Without Cause. The Company may terminate Executives employment hereunder at any time for any reason or no reason by giving Executive thirty (30) days prior written notice of the termination. Following any such notice, the Company may reduce or remove any and all of Executives duties, positions and titles with the Company."
"(b) Mitigation; Offset. Executive shall not be required to mitigate damages or the amount of any payment provided to Executive under Section 5 of this Agreement by seeking other employment or otherwise, nor shall the amount of any payments provided to Executive under Section 5 be reduced by any compensation earned by Executive as the result of employment by another employer after the termination of Executives employment or otherwise."
"(j) Non-waiver. Neither any course of dealing nor any failure or neglect of either party hereto in any instance to exercise any right, power or privilege hereunder or under law shall constitute a waiver of any other right, power or privilege or of the same right, power or privilege in any other instance. All waivers by either party hereto must be contained in a written instrument signed by the party to be charged and, in the case of the Company, by its duly authorized officer."
"(i) The intent of the parties is that payments and benefits under this Agreement comply with, or be exempt from, Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance promulgated thereunder (collectively Section 409A of the Code) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith."
"(b) Excluded from this Agreement are any claims which by law cannot be waived in a private agreement between an employer and employee. Moreover, this General Release does not prohibit you from filing a charge with the Equal Employment Opportunity Commission (the EEOC) or equivalent state agency in your state or participating in an EEOC or state agency investigation. You do agree to waive your right to monetary or other recovery should any claim be pursued with the EEOC, state agency, or any other federal, state or local administrative agency your behalf arising out of or related to your employment with and/or separation from the Company."
"3\. Duties and Rights. Executive shall be employed as Chief Financial Officer of the Company. In such capacity, Executive's duties shall include those customary for such a position with a public company including but not limited to oversight of corporate finance, accounting and financial reporting functions, assisting the Company with its fundraising and corporate development initiatives, supervising the Companys finance and accounting staff. Executive shall report to the Chief Executive Officer, Andy Heyward. During the term of this Agreement, Executive shall devote all of her business time and efforts to the affairs of the Company and its Subsidiaries. Executive shall use her best efforts to perform all such services diligently and to the best of her ability and will at all times use her best efforts to enhance the business of the Company."
"4.2. Bonus Compensation. During the term hereof, the Executive shall be eligible to receive a bonus (the ""Discretionary Bonus"") for each fiscal year, prorated for any period of service less than one year, as provided herein. The amount and timing of the Discretionary Bonus, if any, shall be determined by the Company, in its sole discretion, based on the Executive's performance (including but not limited to Executives performance against revenue and profit targets) and that of the Company and its Affiliates and such other criteria as the Compensation Committee may consider in its sole discretion. The Discretionary Bonus shall be paid by the Company to the Executive quarterly promptly after determination that the relevant targets have been met, it being understood that the attainment of any financial targets associated with any bonus shall not be determined until following the completion of the Companys quarterly audit and public announcement of such results and shall be paid promptly following the Companys announcement of earnings. Whenever any Discretionary Bonus payable to the Executive is stated in this Agreement to be prorated for any period of service less than a full year, such Discretionary Bonus shall be prorated by multiplying (x) the amount of the Discretionary Bonus otherwise payable for the applicable fiscal year in accordance with this Section 4.2 by (y) a fraction, the denominator of which shall be 365 and the numerator of which shall be the number of days during the applicable fiscal year for which the Executive was employed by the Company. Any compensation paid to the Executive as Discretionary Bonus shall be in addition to the Base Salary, as well as participation in any other incentive, stock option, stock purchase, profit sharing, deferred compensation, bonus compensation or severance plan, program or arrangement which the Company or any of its Affiliates may adopt or continue from time to time for which the Executive is eligible, each as in accordance with any subscription agreement, stock option plan, and stock option agreement identified, from time to time."
"4.5 Relocation. It is a material term of this agreement that Executive relocate from the Park City, Utah to the Los Angeles, California area and that Executives services will be rendered from Companys executive offices, currently in Beverly Hills, California. Company and Executive will mutually agree upon a schedule for relocation which shall in all events be accomplished no later than June 15, 2016. Company will pay for directly or reimburse Executive for the reasonable out of pockets costs of such relocation subject to mutual approval. Company will also reimburse Executive for one three- day/two night trip to Los Angeles prior to such relocation for the purpose of house-housing and similar pre-relocation matters as well as reasonable living expenses incurred once relocated to Los Angeles and prior to moving into permanent accommodations, if necessary, up to a maximum of fifteen (15) calendar days."
"5.2.3. Except as provided in Section 5.2.2, while the Executive is receiving Disability Payments, the Executive shall not be entitled to receive any Base Salary under Section 4.1 or Discretionary Bonus payments under Section 4.2, but the Executive shall continue to participate in benefit plans of the Company in accordance with Section 4.4 and the terms of such plans, until the termination of her employment. During the two month period from the date of eligibility for Disability Payments or termination of employment under this Section 5.2, the Company shall continue to contribute to the cost of the Executive's participation in one of the group medical plans of the Company, in the same percentage as the Company was contributing at the time of termination of the Executive's employment, provided that the Executive is entitled to continue such participation under applicable law and plan terms."
"5.3. By the Company for Cause. The Company may terminate the Executives employment hereunder for Cause at any time upon notice to the Executive setting forth in reasonable detail the nature of such Cause. The following events or conditions shall constitute ""Cause"" for termination: (i) the willful and continued failure of the Executive to perform substantially her duties and responsibilities for the Company (other than any such failure resulting from Executives death or Disability) after a written demand by the President for substantial performance is delivered to the Executive by the Company, which specifically identifies the manner in which the President believes that the Executive has not substantially performed her duties and responsibilities, which willful and continued failure is not cured by the Executive within thirty (30) days of her receipt of such written demand; (ii) the material breach by the Executive of any material provision of this Agreement, if such breach results in a material adverse effect on the Company or its Subsidiaries and if the breach is not cured by the Executive within thirty (30) days of her receipt of such written demand therefore (for the avoidance of doubt, the violation of Section 8.1, 8.3 and 8.5 of this Agreement shall be considered an immediate material breach of a material provision of this Agreement and not subject to the foregoing notice or cure provisions); (iii) the commission of fraud, embezzlement or theft by the Executive; (iv) the conviction of the Executive of, or plea by the Executive of nolo contendre to, any felony or any other crime involving dishonesty or moral turpitude."
"6.2. Termination of Benefits. Except for medical insurance coverage continued pursuant to Sections 5.2 hereof, the continuation of any benefits pursuant to Section 5.4 hereof and any right of continuation of health coverage at the Executive's cost to the extent provided by Sections 601 through 608 of ERISA, benefits shall terminate pursuant to the terms of the applicable benefit plans based on the date of termination of the Executive's employment without regard to any continuation of Base Salary or other payments to the Executive following termination of her employment."
"8.5. Agreement Not to Solicit Employees or Other Service Providers. The Executive agrees that during her employment hereunder and for a period of twelve (12) months following the Date of Termination, she will not, directly or indirectly, (a) recruit, solicit, or otherwise seek to induce any employees of the Company or its Subsidiaries to terminate their employment or violate any agreement with or duty to the Company or its Subsidiaries, or (b) recruit, solicit, or otherwise seek to induce any individual providing services to the Company or its Subsidiaries as an independent contractor, consultant, or through any other relationship to terminate or diminish their relationships with the Company or its Subsidiaries."
"11.1. ""Affiliate"" shall mean, with respect to any specified Person, (a) any other Person which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person (for the purposes of this definition, ""control"" (including, with correlative meanings, the terms ""controlling,"" ""controlled by"" and ""under common control with""), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise) and (b) with respect to any natural Person, any member of the immediate family of such natural Person."
"Each installment payable hereunder shall constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b), including Treasury Regulation Section 1.409A-2(b)(2)(iii). Each payment that is made within the terms of the short-term deferral rule set forth in Treasury Regulation Section 1.409A-1(b)(4) is intended to meet the short-term deferral rule. Each other payment is intended to be a payment upon an involuntary termination from service and payable pursuant to Treasury Regulation Section 1.409A-1(b)(9)(iii), et. seq., to the maximum extent permitted by that regulation, with any amount that is not exempt from Code Section 409A being subject to Code Section 409A."
"14.1. Assignment. Neither the Company nor the Executive may make any assignment of this Agreement or any interest herein, by operation of law or otherwise, without the prior written consent of the other; provided, however, that the Company may assign its rights and obligations under this Agreement without the consent of the Executive (a) in the event that the Company shall hereafter affect a reorganization, consolidate with, or merge into, one of its Affiliates or any other Person or transfer all or substantially all of its properties or assets to one of its Affiliates or any other Person, in which event such Affiliate or Person shall be deemed the ""Company"" for all purposes of this Agreement, or (b) to any senior lender to the Company or any Subsidiary thereof as collateral security. This Agreement shall inure to the benefit of and be binding upon the Company and the Executive, and their respective successors, executors, administrators, heirs and permitted assigns."
"14.4. Notices. Any and all notices, requests, demands and other communications provided for by this Agreement shall be in writing and shall be effective when delivered in person or deposited in the United States mail, postage prepaid, registered or certified, and addressed (a) in the case of the Executive, to her last address on record with the Company, or (b) in the case of the Company, at its principal place of business and to the attention of the Board; or to such other address as either party may specify by notice to the other actually received."
"Section2. | Term of Employment. ---|--- 2.1 Term.The term of the Executives employment under this Agreement (the Employment Period) shall commence on the effective date of the Agreement first entered above (the Effective Date) and shall continue until the earliest of (a) the voluntary termination of Executives employment by the Executive other than for Good Reason (as defined in Section 4.2), (b) the termination of the Executives employment by the Executive for Good Reason, (c) the termination of the Executives employment by Fulton for any reason other than Cause (as defined in Section 4.3), (d) the termination of the Executives employment by Fulton for Cause, (e) termination of the Executives employment with Fulton due to the Disability (as defined in Section 4.4), (f) the termination of Executives employment with Fulton due to the Executives retirement upon attaining age 65, or (g) the death of the Executive."
"3.3 Vacation and Leave.Executive shall be entitled to annual paid vacation, leave of absence and leave for illness or temporary disability in conformity with Fultons regular policies and practices, and any leave on account of illness or temporary disability shall not constitute a breach by the Executive of Executives agreements hereunder."
"(a) Following Executives total disability (Disability, as defined below) or death during the term of this Agreement, the employment of the Executive will terminate automatically, in which event Fulton shall not thereafter be obligated to make any further payments hereunder other than amounts (including salary, expense reimbursement, etc.) accrued under this Agreement as of the date of such termination in accordance with generally accepted accounting principles or as otherwise specifically provided herein. For purposes hereof, Disability shall mean that the Executive, by reason of a medically determinable physical or medical impairment that can be expected to result in death or expected to last for a continuous period of at least twelve months, (i) is unable to engage in any substantial gainful activity or (ii) has received income replacement benefits for a period of at least three months under an accident or health plan of Fulton."
"(i) In the event of a termination of this Agreement as a result of the Executives death, the Executives dependents, beneficiaries and estate, as the case may be, will receive such survivors income and other benefits as they may be entitled under the terms of the benefit programs, plans, and arrangements described in Section 3.2 which provide benefits upon the death of the Executive."
"(ii) In the event of a termination of this Agreement as a result of the Executives Disability, (A) Fulton shall pay the Executive an amount equal to at least six months Base Salary at the rate and as required by Section 3.1 and in effect immediately prior to the date of Disability, (B) thereafter, for as long as Executive continues to be disabled, Fulton shall continue to pay an amount equal to at least 60% of Base Salary in effect immediately prior to the date of Disability until the earlier of Executives death or December31 of the calendar year in which Executive attains age 65 and (C) to the extent not duplicative of the foregoing, Executive shall receive those benefits customarily provided by Fulton to disabled former employees, which benefits shall include, but shall not be limited to, life, medical, health, accident insurance and a survivors income benefit."
"(ii) an amount equal to that portion, if any, of Fultons contribution to the Executives 401 (k), profit sharing, deferred compensation or other similar individual account plan which is not vested as of the date of termination of Executives employment (the Date of Termination) (the Unvested Company Contribution), plus an amount which, when added to the Unvested Company Contribution, would be sufficient after Federal, state and local income taxes (based on the tax returns filed by the Executive most recently prior to the Date of Termination) to enable the Executive to net an amount equal to the Unvested Company Contribution; and"
"(d) The Executive is to receive no payments under Section 6.2(a) and no benefits under Section 6.2(b) if the Executives employment is terminated by Fulton during a Change in Control Period for Cause. If Executive dies or becomes Disabled during the Change in Control Period, the Executive and Executives dependents, beneficiaries and estate shall receive any benefits payable to them under Section 4.5."
"(c) Release Payments. In the event that Executive is required to execute a release to receive any payments from Fulton that constitute nonqualified deferred compensation under Section 409A, payment of such amounts shall not be made or commence until the sixtieth (60th) day following such termination of employment. Any payments that are suspended during the sixty (60) day period shall be paid on the date the first regular payroll is made immediately following the end of such period."
"Notwithstanding anything contained in this Agreement to the contrary, to the extent that any amounts payable under this Agreement or otherwise (the Total Payments) would be subject to Section 4999 of the Code, then the Total Payments shall be reduced (but not below zero) so that the maximum amount of the Total Payments (after reduction) shall be one dollar ($1.00) less than the amount which would cause the Total Payments to be subject to the excise tax imposed by Section 4999 of the Code but no such reduction shall apply unless the actual amount of Total Payments to be received by the Employee after such reduction is greater than the amount the Employee would receive if no such reduction were made to the Total Payments and the Employee were subject to the tax imposed by Section 4999 of the Code. If applicable, the Company shall reduce or eliminate the Total Payments that are included in parachute payments under Section 280G of the Code in the following order and manner, in each case, in reverse chronological order within each category beginning with the Total Payments that are to be paid the furthest in time from consummation of the transaction that is subject to Section 280G of the Code, and in proportion to the extent to which each type of payment within each category constitutes a parachute payment: (1) by reducing or eliminating the payment of any cash severance under Section 9 of this Agreement; (2) by not accelerating the payment of any restricted stock, restricted stock units, performance shares, performance share units, or stock options; (3) by not accelerating the vesting of any restricted stock, restricted stock units, performance shares, performance share units, or stock options; and (4) by reducing or eliminating any other payments or benefits that constitutes a parachute payment under Section 280G of the Code. The provisions of this paragraph shall take precedence over the provisions of any other plan, arrangement or agreement governing the Employees rights and entitlements to any benefits or compensation under this Agreement or otherwise. Any determination that Total Payments to the Employee must be reduced or eliminated in accordance with this paragraph and the assumptions to be utilized in arriving at such determination, shall be made by the Companys Board of Directors in the exercise of its reasonable, good faith discretion based upon the advice of such professional advisors it may deem appropriate in the circumstances."
"6. Other Employment. Place shall devote all of his time, attention, knowledge, and skills solely to the business and interests of Company, and Company shall be entitled to all of the benefits or other issues arising from or incident to all work, services and advice of Place. Place shall not, during the term of this Employment Agreement be interested directly or indirectly, in any manner, as a partner, officer, director, shareholder, advisor, or in any other capacity in any other business similar to the Company's business or any allied trade."
11\. Assignment. The rights and obligations of the Company under this Employment Agreement shall inure to the benefit of and be binding upon the successors and assigns of the Company. This Employment Agreement is a personal service contract. Neither this Employment Agreement nor the rights and obligations of Place hereunder may be transferred or assigned by Place (including by will or operation of law) without the prior written consent of the Company.
"(c) Termination by Company for Cause. The Company may terminate the Executives employment hereunder for Cause. For purposes of this Agreement, Cause shall mean: (i)conduct by the Executive constituting a material act of misconduct in connection with the performance of his or her duties, including, without limitation, misappropriation of funds or property of the Company or any of its subsidiaries or affiliates other than the occasional, customary and de minimis use of Company property for personal purposes; (ii)the commission by the Executive of any felony or a misdemeanor involving moral turpitude, deceit, dishonesty or fraud, or any conduct by the Executive that would reasonably be expected to result in material injury or reputational harm to the Company or any of its subsidiaries and affiliates if he or she were retained in his or her position; (iii)continued non-performance by the Executive of his or her duties hereunder (other than by reason of the Executives physical or mental illness, incapacity or disability) which has continued for more than 30 days following written notice of such non- performance from the Board; (iv)a breach by the Executive of any of the provisions of the Restrictive Covenants Agreement or Section7 of this Agreement; (v)a material violation by the Executive of the Companys written policies; or (vi)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 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."
(d) Termination Without Cause. The Company may terminate the Executives employment hereunder at any time without Cause. Any termination by the Company of the Executives employment under this Agreement which does not constitute a termination for Cause under Section3(c) and does not result from the death or disability of the Executive under Section3(a) or (b)shall be deemed a termination without Cause.
"(iv) The amounts payable under this Section5(a) shall be paid or commence to be paid within 60 days after the Date of Termination; provided, however, that if the 60-day period begins in one calendar year and ends in a second calendar year, such payment shall be paid or commence to be paid in the second calendar year by the last day of such 60-day period."
"(e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section409A of the Code but do not satisfy an exemption from, or the conditions of, such Section."
"(b) Litigation and Regulatory Cooperation. During and after the Executives employment, the Executive shall cooperate fully with the Company in the defense or prosecution of any claims or actions now in existence or which may be brought in the future against or on behalf of the Company which relate to events or occurrences that transpired while the Executive was employed by the Company. The Executives full cooperation in connection with such claims or actions shall include, but not be limited to, being available to meet in Massachusetts (or, after his or her employment terminates, in Massachusetts or within the federal district in which he or she resides) 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 also shall cooperate fully 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(b) and, after his or her employment with the Company terminates, the Executive may be entitled for reasonable compensation for his or her time. For the avoidance of doubt, nothing in this Agreement shall be interpreted or applied to prohibit the Executive from making any good faith report to any governmental agency or other governmental entity concerning any act or omission that the Executive reasonably believes constitutes a possible violation of federal or state law or making other disclosures that are protected under the anti-retaliation or whistleblower provisions of applicable federal or state law or regulation."
"8\. Consent to Jurisdiction. The parties hereby consent to the jurisdiction of the state and federal courts in the Commonwealth of Massachusetts. Accordingly, with respect to any such court action, the Executive (a)submits to the personal jurisdiction of such courts; (b)consents to service of process; and (c)waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction or service of process."
"15\. 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, with copies to the Chief Executive Officer and the Chief Legal Officer; provided that if the Executive providing notice is either the Chief Executive Officer or the Chief Legal Officer, he or she is not required to provide notice to himself or herself."
"Section 1 of the Agreement hereby is amended to extend the Employment Period to and including July 23, 2019 (the Expiration Date), unless the Agreement is otherwise terminated pursuant to Section 4 thereof; provided however, that on the Expiration Date and each annual anniversary of such date thereafter, the Agreement shall automatically be extended for one additional year unless either the Company or Executive shall have terminated this automatic extension provision by written notice to the other party at least 60 days prior to the automatic extension date. Subject to the terms of the Agreement, Executive's employment remains at will, which means that either Executive or the Company may terminate this relationship with or without Cause or notice. ---|--- "
"(a) General. The Executive shall serve as ""Chief Financial Officer,"" reporting to the Company's Chief Executive Officer (""CEO"") and the non-executive Chairman (the ""Chairman"") of the Company's Board of Directors (the ""Board""). The Executive shall have such duties and responsibilities, commensurate with the Executive's position, as may be reasonably assigned to the Executive from time to time by the CEO, the Chairman or the Board. The Executive's principal place of employment shall be 315 Manitoba Avenue, Suite 200, Wayzata, Minnesota."
"(c) Dodd-Frank Act, Sarbanes-Oxley and Other Applicable Law Requirements. The Executive agrees (i) to abide by any compensation recovery, recoupment, anti- hedging, or other policy applicable to executives of the Company and its affiliates that is hereafter adopted by the Board or a duly authorized committee thereof to comply with applicable law as required by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the ""Dodd-Frank Act""), the Sarbanes-Oxley Act of 2002 (""Sarbanes-Oxley""), or other applicable law; and (ii) that the terms and conditions of this Agreement shall be deemed automatically and unilaterally amended to the minimum extent required as may be necessary from time to time to ensure compliance by the Executive and this Agreement with such policies, the Dodd-Frank Act, Sarbanes-Oxley, or other applicable law."
"(a) Base Salary. The Company shall pay to the Executive an annual salary (the ""Base Salary"") at a rate of no less than $515,000 per year, payable in substantially equal installments at such intervals as may be determined by the Company in accordance with the Company's then current ordinary payroll practices as established from time to time. The Base Salary shall be reviewed in good faith by the Compensation Committee of the Board (the ""Compensation Committee""), based upon the Executive's performance, not less often than annually."
"(c) Performance Share Grant. On the Effective Date, and as an inducement for the Executive to enter into this Agreement, the Executive shall be granted a target number of Shares equal to 341,530 Shares (the ""Performance-Based Restricted Stock Grant""). The Executive will be eligible to earn between zero percent (0%) and one-hundred and fifty percent (150%) of the Performance-Based Restricted Stock Grant in accordance with the terms of the Plan and subject to certain performance-based vesting criteria and other conditions as set forth in Exhibit A."
"(f) Expenses. The Company shall reimburse the Executive for reasonable travel, legal and other business-related expenses incurred by the Executive in the fulfillment of his duties hereunder upon presentation of written documentation thereof, in accordance with the applicable expense reimbursement policies and procedures of the Company as in effect from time to time."
"(d) No Continued Benefits Following Termination. Unless otherwise specifically provided in this Agreement or otherwise required by law, all compensation, equity plans, and benefits payable to the Executive under this Agreement shall terminate on the date of termination of the Executive's employment with the Company under the terms of this Agreement."
"6. Section 409A of the Code. This Agreement is intended to either avoid the application of, or comply with, Section 409A of the Code. To that end this Agreement shall at all times be interpreted in a manner that is consistent with Section 409A of the Code. Notwithstanding any other provision in this Agreement to the contrary, the Company shall have the right, in its sole discretion, to adopt such amendments to this Agreement or take such other actions (including amendments and actions with retroactive effect) as it determines is necessary or appropriate for this Agreement to comply with Section 409A of the Code. Further:"
"(c) The Executive acknowledges that the Company is a public company registered under the Securities Exchange Act of 1934, as amended (the ""Exchange Act"") and that this Agreement may be subject to the filing requirements of the Exchange Act. The Executive acknowledges and agrees that the applicable insider trading rules and limitations on disclosure of non-public information set forth in the Exchange Act and rules and regulations promulgated by the Securities and Exchange Commission (the ""SEC"") shall apply to this Agreement and the Executive's employment with the Company. The Executive (on behalf of himself as well as his executors, heirs, administrators and assigns) absolutely and unconditionally agrees to indemnify and hold harmless the Company and all of its past, present and future affiliates, executors, heirs, administrators, shareholders, employees, officers, directors, attorneys, accountants, agents, representatives, predecessors, successors and assigns from any and all claims, debts, demands, accounts, judgments, causes of action, equitable relief, damages, costs, charges, complaints, obligations, controversies, actions, suits, proceedings, expenses, responsibilities and liabilities of every kind and character whatsoever (including, but not limited to, reasonable attorneys' fees and costs) in the event of the Executive's conviction of any violation of the Exchange Act, any rules promulgated by the SEC and any other applicable federal or state laws, rules, regulations or orders."
"8. Non-Competition and Non-Solicitation of Customers, Clients and Employees. The Executive agrees that during the Term and the Restricted Period, the Executive will not directly or indirectly, as an employee, officer, director, shareholder, proprietor, agent, partner, recruiter, consultant, independent contractor or in any other individual or representative capacity engage in any of the Restricted Activities in any area within which the Company conducts or is pursuing Company Business, unless such has been previously been approved in writing by the Board after the Executive has provided the Board with full written disclosure of the relevant facts."
"(iii) which are beneficially owned, directly or indirectly, by any other Person with which such Person or any of such Person's Affiliates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting (except pursuant to a revocable proxy as described in clause (ii) above) or disposing of any voting securities of the Company."
"(i) any Person (other than (A) the Company, (B) a trustee or other fiduciary holding securities under any employee benefit plan of the Company, (C) an underwriter temporarily holding securities pursuant to an offering of such securities or (D) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock in the Company (""Excluded Persons"")) is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company after the Effective Date, pursuant to express authorization by the Board that refers to this exception) representing fifty percent (50%) or more of either the then outstanding shares of common stock of the Company or the combined Voting Power of the Company's then outstanding voting securities; or"
"(i) Financial information of any kind pertaining to the Company, including, without limitation, information about the profit margins, profitability, pricing, income and expenses of the Company or any of its products or lines of business and also including, without limitation, any and all information and records relating to the Company's contracts or transactions with, or charges, prices or sales to, its customers, including invoices, proposals, confirmations, bills of ladings, statements, accounting records, bids, payment records or any other information or documents regarding amounts charged to or paid by customers, for any products or services which form any part of the Company Business;"
"(i) a material diminution of the Executive's authority or duties (including, without limitation, (1) the continuous assignment to the Executive of any duties materially inconsistent with the Executive's position with the Company, or (2) a material diminution in the nature or status of the Executive's responsibilities) without the Executive's prior written consent;"
"(a) Defense of Claims. The Executive agrees that, during and following the Term, upon request from the Company, the Executive will cooperate with the Company in the defense of any claims or actions that may be made by or against the Company that affect the Executive's prior areas of responsibility, except if the Executive's reasonable interests are adverse to the Company in such claim or action. The Company agrees to promptly reimburse the Executive for all of the Executive's reasonable legal fees, travel and other direct expenses incurred, or to be reasonably incurred  and, if the Executive is no longer employed with the Company, to compensate the Executive (at a pro rata hourly rate calculated based on the Executive's salary at the time of the Executive's separation) for the Executive's time  to comply with the Executive's obligations under this Section 10(a)."
"(b) Non-Disparagement. The Executive agrees that at no time during or after the termination of the Executive's employment shall the Executive make, or cause or assist any other person to make, any statement or other communication to any third party which impugns or attacks, or is otherwise critical of, the reputation, business or character of the Company or its affiliates or any of its respective directors, officers or employees. Similarly, the Company agrees that at no time following the termination of the Executive's employment shall the Board or the Company's executive officers (as defined in Section 16 of the Securities Exchange Act of 1934, as amended) make, cause or assist any other person to make, any statement or other communication to any third party which impugns or attacks, or is otherwise critical of, the reputation, performance or character of the Executive. However, the foregoing shall not apply to: (i) any person's statements as a witness in a legal proceeding (as may be ordered by any regulatory agency or court or as otherwise required by law), or (ii) as may be necessary for either party to prosecute any claims relating to the enforcement of this Agreement."
"(h) Reformation of Time, Geographical, and Occupational Limitations. In the event that any provision in this Agreement is held to be unenforceable by a court of competent jurisdiction because it exceeds the maximum time, geographical, or occupational limitations permitted by applicable law, then such provision(s) shall be and hereby are reformed to the maximum time, geographical, and occupational limitations as may be permitted by applicable law."
"(j) No Assignment. Neither this Agreement nor any of the Executive's rights and duties hereunder, shall be assignable or delegable by the Executive. Any purported assignment or delegation by the Executive in violation of the foregoing shall be null and void ab initio and of no force and effect. This Agreement may be assigned by the Company to a person or entity which is an affiliate or a successor in interest to substantially all of the business operations of the Company. Upon such assignment, the rights and obligations of the Company hereunder shall become the rights and obligations of such affiliate or successor person or entity."
"(4) In the event a Peer Group Company, (i) files for bankruptcy, reorganization, or liquidation under any chapter of the U.S. Bankruptcy Code; (ii) is the subject of an involuntary bankruptcy proceeding that is not dismissed within 30 days; (iii) is the subject of a stockholder approved plan of liquidation or dissolution; or (iv) ceases to conduct substantial business operations, in each case, the company will remain a Peer Group Company and the TSR for the Performance Period will be negative one hundred percent (-100%)."
"For purposes hereof, a ""Stand-In Peer"" shall be a dummy entity for purposes of calculating the Company's Relative Total Shareholder Return for a Performance Period during which one or more actual companies cease to be Peer Group Companies pursuant to the foregoing paragraphs 5(a) or 5(c). For the period in question, a Stand-In Peer's TSR shall be deemed to be equal to the average TSR of all remaining Peer Group Companies (excluding the Stand-In Peers)."
"1. SEPARATION DATE, FINAL PAY& SEVERENCE. Your last day of employment with Jaguar was March18, 2016 (the Separation Date). You will not accrue additional paid time off after the Separation Date. By executing this Agreement, you acknowledge you have been paid all of your earned salary, accrued and unused vacation pay through the effective date of your separation. You also acknowledge that all of your business expenses have been reimbursed through the date of your separation. In addition Jaguar will pay you three (3)months of your current base salary (less withholdings and your medical premium contribution defined below) on the Effective Date (defined in Section10) of this Agreement (the Severance Payments). The Severance Payments will be paid to you monthly on the 1st of each calendar month for the 3 calendar months following the Effective Date of this Agreement."
"As additional consideration, following the Effective Date of this Agreement, if you elect to remain with family medical coverage on Jaguars PPO plan with monthly premiums of $3250 Jaguar will contribute $1500 per month towards your family coverage until the EARLIER OF (1)September1, 2016 (with coverage ending September30, 2016) OR (2)the date you become eligible for medical coverage under a new employer plan. You will contribute $1750 towards your monthly family medical premium. Your $1750 medical premium contribution will be deducted from each of the 3 Severance Payments for the months of May, Juneand July2016\. For August2016 you will need to remit by check your medical premium contribution of $1750 on or before July25, 2016. For September2016 you will need to remit by check your medical premium contribution of $1750 on or before August25, 2016. You agree to let Jaguar know immediately if you become eligible for medical coverage under a new employer. Dental, vision, supplemental disability and life insurance and FSA are not available."
"(A)Vested Stock Options. As of the Separation Date you will have a total of 57,912 vested stock options (51,231 at a strike price of $2.54 and 6,681 at a strike price of $7.00). Jaguar will allow you ninety days (90 days) from the date this Agreement becomes effective to exercise vested stock options."
"The Employment Agreement, dated November 20, 2014, as amended by that certain First Amendment to Employment Agreement, dated April 27, 2015 (collectively, the Employment Agreement), by and between Quest Solution, Inc., a Delaware corporation (the Company), and Scot Ross, an individual (the Executive) is hereby amended, effective as of May 2, 2016 (the Effective Date), as set forth herein."
"This EMPLOYMENT AGREEMENT (""the Agreement"") is made and entered into as of April 4, 2016 (the ""Effective Date"") by and between WESTFIELD FINANCIAL, INC., a business corporation organized and existing under the laws of the Commonwealth of Massachusetts and having an office at 141 Elm Street, Westfield, Massachusetts 01085 (the ""Company"") and WILLIAM J. WAGNER (the ""Executive"")."
"WHEREAS, concurrently with the execution of this Agreement, the Company and Chicopee Bancorp, Inc. (the ""Seller"") are entering into an Agreement and Plan of Merger (the Merger Agreement), and all capitalized terms not defined herein shall have the meaning set forth in the Merger Agreement and any reference to Bank herein shall mean Westfield Bank;"
"(a) The terms and conditions of this Agreement shall be and remain in effect during the period of employment established under this section 2 (""Employment Period""). The Employment Period shall be for a term of three (3) years beginning on the Closing Date and ending on the third anniversary date of the Closing Date. Any reference in this Agreement to the term ""Remaining Unexpired Employment Period"" as of any date shall mean the period beginning on such date and ending on the day of the third (3rd) anniversary of the Closing Date. If the Closing does not occur for any reason, then this Agreement shall be null and void ab initio and of no further force or effect."
"During the Employment Period, the Executive shall be treated as an employee of the Company and shall be entitled to participate in and receive benefits under any and all qualified or non-qualified retirement, pension, savings, profit- sharing or stock bonus plans, any and all group life, health (including hospitalization, medical and major medical), dental, accident and long term disability insurance plans, and any other employee benefit and compensation plans (including, but not limited to, any incentive compensation plans or programs, stock option and appreciation rights plans and restricted stock plans) as may from time to time be maintained by, or cover employees of, the Company in accordance with the terms and conditions of such employee benefit plans and programs and compensation plans and programs and consistent with the Company's customary practices. In addition, during the Employment Period the Executive shall be provided with the use of a Company-owned automobile, payment of a country club membership to Springfield Country Club at the same level as was in effect on the Effective Date and payment of supplemental life insurance premiums (such premiums not to exceed $6,000 per year). The Company shall provide car insurance, maintenance and gas with respect to such automobile and Executive shall comply with reasonable reporting and expense limitations as may be established by the Company from time to time. The Company shall include on Executives Form W-2 any amount of income attributable to Executives personal use of such automobile"
"(E) a change in the Executive's principal place of employment to a place that is not the principal executive office of the Bank, or a relocation of the Bank's principal executive office to a location that is both more than twenty-five (25) miles away from the Executive's principal residence and more than twenty-five (25) miles away from the location of the Bank's principal executive office on the date of this Agreement; or"
"(iv) a lump sum payment in an amount equal to the estimated present value of the salary 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 ""Salary Severance Payment""). The Salary Severance Payment shall be computed using the following formula: ![](formula.jpg)"
"(vi) a lump sum payment in an amount equal to the estimated present value of the long-term incentive bonuses that the Executive would have earned if he had continued working for the Company and the Bank during the Remaining Unexpired Employment Period (the ""Incentive Severance Payment""). The Incentive Severance Payment shall be computed using the following formula:"
"(vii) a lump sum payment in an amount equal to the excess (if any) of (A) the present value of the aggregate benefits to which he would be entitled under any and all tax-qualified and non-tax-qualified defined benefit plans maintained by, or covering employees of, the Company or the Bank (the ""Pension Plans"") if he had continued working for the Company and the. Bank during the Remaining Unexpired Employment Period; over (B) the present value of the benefits to which the Executive and his spouse and/or designated beneficiaries are actually entitled under such plans (the ""Pension Severance Payment""). The Pension Severance Payment shall be computed according to the following formula:"
"For the purpose of computing this payment, the Executive shall be deemed fully vested in all options and appreciation rights under any stock option or appreciation rights plan or program maintained by, or covering employees of, the Company or the Bank, even if he is not vested under such plan or program; and"
"(c) The Executive, the Company and the Bank acknowledge that each of the payments and benefits promised to the Executive under this Agreement must either comply with the requirements of Section 409A and the regulations thereunder or qualify for an exception from compliance. To that end, the Executive, the Company and the Bank agree that the termination benefits described in Section 9(b) are intended to be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(4) as short-term deferrals."
"(b) The Company may terminate the Executive's employment upon a determination, by vote of a majority of the members of the Boards of Directors of the Company, acting in reliance on the written advice of a medical professional acceptable to them, that the Executive is suffering from a physical or mental impairment which, at the date of the determination, has prevented the Executive from performing his assigned duties on a substantially full-time basis for a period of at least ninety (90) days during the period of one (1) year ending with the date of the determination or is likely to result in death or prevent the Executive from performing his assigned duties on a substantially full-time basis for a period of at least ninety (90) days during the period of one (1) year beginning with the date of the determination. In such event:"
"(A) at least 51% of the equity ownership interests of the entity resulting from such transaction are beneficially owned (within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended ""Exchange Act"") in substantially the same relative proportions by persons who, immediately prior to such transaction, beneficially owned (within the meaning of Rule 13d-3 promulgated under the Exchange Act) at least 51% of the outstanding equity ownership interests in the Company; and"
"(B) at least 51% of the securities entitled to vote generally in the election of directors of the entity resulting from such transaction are beneficially owned (within the meaning of Rule 13d-3 promulgated under the Exchange Act) in substantially the same relative proportions by persons who, immediately prior to such transaction, beneficially owned (within the meaning of Rule 13d-3 promulgated under the Exchange Act) at least 51% of the securities entitled to vote generally in the election of directors of the Company;"
"(ii) the acquisition of all or substantially all of the assets of the Company or beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 25% or more of the outstanding securities of the Company entitled to vote generally in the election of directors by any person or by any persons acting in concert, or approval by the stockholders of the Company of any transaction which would result in such an acquisition;"
"(c) solicit, provide any information, advice or recommendation or take any other action intended, or that a reasonable person acting in like circumstances would expect, to have the effect of causing any customer of the Company, the Bank or any of their respective subsidiaries to terminate an existing business or commercial relationship with any of them."
"In the event a payment is made to an employee upon an involuntary termination of employment, as deemed pursuant to this Agreement, such payment will not be subject to Section 409A provided that such payment does not exceed two (2) times the lesser of (i) the sum of the Executive's annualized compensation based on the taxable year immediately preceding the year in which termination of employment occurs or (ii) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which the Executive terminates service (the ""Safe Harbor Amount""). However, if such payment exceeds the Safe Harbor Amount, only the amount in excess of the Safe Harbor Amount will be subject to Section 409A. In addition, if such Executive is considered a key employee, such payment in excess of the Safe Harbor Amount will have its timing delayed and will be subject to the six (6)-month wait-period imposed by Section 409A as provided in Section 31 of this Agreement. The Executive, the Company and the Bank agree that the termination benefits described in this Section 32 are intended to be exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(9)(iii) as the safe harbor for separation pay due to involuntary separation from service."
"Notwithstanding anything in this Agreement to the contrary, if any payments or benefits provided for in this Agreement, together with any other payments which the Executive has the right to receive from the Company, the Bank, Seller, Chicopee Savings Bank, or any corporation which is a member of an affiliated group (as defined in Code Section 1504(a), without regard to Code Section 1504(b)) of which Company, the Bank, Seller, or Chicopee Savings Bank is a member, would constitute an excess parachute payment (as defined in Code Section 280G(b)(2)), payments pursuant to this Agreement shall be reduced to the extent necessary to ensure that no portion of such payments will be subject to the excise tax imposed by Code Section 4999. Any determination required under this section 33 shall be made by the Company and its tax advisors, whose determination shall be conclusive and binding upon the Executive."
"CONFIDENTIAL TERMS. Employee and the Company agree that each will keep the contents of this Release of Claims (including its existence and the terms and provisions hereof) and the negotiations leading to it completely confidential, that neither will hereafter publish or disclose any information concerning such matters to anyone, and that each shall take every reasonable precaution to prevent the direct or indirect disclosure of such information to third parties, provided that the foregoing provisions shall not be construed to prevent Employee from disclosing such matters to his accountant or to prevent the Company from disclosing such matters to its accountants, and provided further that Employee may also make such disclosures as are finally compelled by law provided Employee gives the Company immediate notice of such legal process in order that the Company shall have the opportunity to object to the disclosure of such information."
"INJUNCTIVE RELIEF. Employee acknowledges and recognizes that a violation of this Release of Claims and its covenants will cause irreparable damage to the Company and the Company will have no adequate remedy at law for such violation. Accordingly, Employee agrees that the Company will be entitled, as a matter of right, to an injunction from any court of competent jurisdiction restraining any further violation of this Release of Claims or the terms and conditions provided herein. This right to injunctive relief will be cumulative and in addition to whatever remedies the parties may otherwise have at law."
Governing Law. This Amendment is made and shall be construed and performed under the laws of the remaining provisions will nevertheless continue to be valid and enforceable. State of North Carolina without regard to its choice or conflict of law principles and the parties agree to North Carolina as the exclusive venue for any disputes arising hereunder.
"The arbitration shall be conducted by a single neutral arbitrator in accordance with the then-current Employment Arbitration and Mediation Procedures of the American Arbitration Association (AAA), which can be viewed at http://www.adr.org/employment. The Company will provide Executive with a copy of these rules upon request. The arbitration shall take place in the county of the state in which Executive is or was last employed by the Company, with the understanding the such location is currently Austin, Texas. The Company will pay the arbitrators fee and will bear all administrative charges by AAA. All parties shall be entitled to engage in reasonable pre- hearing discovery to obtain information to prosecute or defend the asserted claims. Any disputes between the parties regarding the nature or scope of discovery shall be decided by the arbitrator. The arbitrator shall hear and issue a reasoned written ruling upon any dispositive motions brought by either party, including but not limited to, motions for summary judgment or summary adjudication of issues."
(d) No Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver of such partys rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
"6. This Agreement is fully assignable and transferable by Company, but any purported assignment or transfer by me is void. I also understand that any breach of this Agreement will cause irreparable harm to Company for which damages would not be an adequate remedy, and, therefore, Company will be entitled to injunctive relief with respect thereto in addition to any other remedies and without any requirement to post bond."
"April 26, 2016 |  | /s/ Danny Zheng |  ---|---|---|---  |  | Danny Zheng |  Accepted and Agreed to: |  |  |   |  |  |  IMATION CORP. |  |  |   |  |  |  /s/ Robert B. Fernander |  |  |  By: Robert B. Fernander |  |  |  Title: Interim Chief Executive Officer |  |  |  "
"1. Term. Subject to the terms and provisions of this Agreement, this Agreement shall be effective upon the closing of the OptiNose,Inc. initial public offering of its common stock, and shall continue until Executives employment with the Company is terminated by the Company or by Executive. At all times, Executives employment with the Company is at-will, which means that Executives employment with the Company may be terminated at any time by the Company with or without Cause or by Executive with or without Good Reason (as each such term is defined below)."
"4. Incentive Compensation. Executive shall participate in short-term and long-term incentive programs, including equity compensation programs, established by the Company for its senior level executives generally, at levels determined by the Board or the Compensation Committee. Executives incentive compensation shall be subject to the terms of the applicable plans and shall be determined based on Executives individual performance and the Companys performance as determined by the Board or the Compensation Committee. Any annual incentive compensation earned by Executive shall be paid on or after January1, but not later than March15 of the fiscal year following the fiscal year for which the annual incentive compensation is earned."
"(b) Equity Incentive Compensation. Executive shall be eligible to receive annual equity awards based on the Companys and Executives actual performance, as determined by the Board or the Compensation Committee. Each such equity award granted to Executive hereunder shall be subject to the terms and conditions of the incentive plan pursuant to which it is granted and such other terms and conditions as are established by the Board or Compensation Committee and set forth in an award agreement evidencing the grant of such equity award."
"(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"
"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."
"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."
"(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"
"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."
"11. Arbitration; Attorneys Fees. Executive agrees that all disputes and controversies arising under or in connection with this Agreement, other than seeking injunctive or other equitable relief under Section8(j), will be settled by arbitration conducted before one (1)arbitrator mutually agreed to by the Company and Executive, sitting in Philadelphia, Pennsylvania or such other location agreed to by Executive 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 Executive 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 Philadelphia Office of the American Arbitration Association."
"(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."
"3. Effective Date; Revocation. Executive acknowledges and represents that he has been given [twenty-one (21)][forty-five (45)] days during which to review and consider the provisions of this Agreement and, specifically, the General Release set forth in Section1 above. Executive further acknowledges and represents that he has been advised by the Company that he has the right to revoke this Agreement for a period of seven (7)days after signing it. Executive acknowledges and agrees that, if he wishes to revoke this Agreement, he must do so in a writing, signed by him and received by the Company no later than 5:00 p.m.Eastern Time on the seventh (7th) day of the revocation period. If no such revocation occurs, the General Release and this Agreement shall become effective on the eighth (8th) day following his execution of this Agreement and shall be final and binding on Executive."
"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."
"WHEREAS, the Board of Directors of Cedar Fair Management (the Board), has determined that it is in the best interests of all stakeholders to effectuate an orderly and seamless transition from the outgoing President and Chief Executive Officer of Cedar Fair Management, Executive, to the newly appointed President and Chief Executive Officer of Cedar Fair Management, Richard A. Zimmerman (RAZ)."
"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)."
"2\. Duties. During the Employment Period, Executive shall perform services in a capacity and in a manner consistent with Executives position for the Company. Executive shall have the title of Executive Chairman commencing as of the Effective Date and, shall have such duties, authorities and responsibilities as are consistent with such position, and that the Board may designate from time to time while the Executive serves as Executive Chairman. While Executive is Executive Chairman, Executive will report directly to the Board and shall devote, on average, twenty-five percent (25%)of his business time and attention and best efforts to fulfill his"
"responsibilities as Executive Chairman; provided, that this Section2 shall not be interpreted as prohibiting Executive from (i)managing Executives personal investments (so long as such investment activities are of a passive nature), (ii)engaging in charitable or civic activities, (iii)participating on boards of directors or similar bodies of non-profit organizations, or (iv)subject to approval by the Board in its sole discretion, participating on boards of directors or similar bodies of for-profit organizations, in each case, so long as such activities in the aggregate do not (a)materially interfere with the performance of Executives duties and responsibilities hereunder, (b)create a fiduciary conflict, or (c)with respect to (ii), (iii), (iv)and (v)only, detrimentally affect the Companys reputation as reasonably determined by the Company in good faith. If requested, Executive shall also serve as an executive officer and/or member of the board of directors of any entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, Cedar Fair, L.P. (an Affiliate) without additional compensation including, and being subject to his election by Unitholders, serving as a member of the Board during the Employment Period."
"(b) Long-Term Equity Incentive Compensation. Any equity award shall be subject to the terms and conditions set forth in the Company Omnibus Plan and an applicable award agreement entered into thereunder, which shall not be inconsistent with the Plan or this Agreement (except to the extent the Plan may be modified by the Board), and to approval of such grant by the Board; provided that upon the occurrence of a change in control (as defined in the Company Omnibus Plan) (referred to herein as Change in Control), Executive shall become fully and immediately vested in any equity award granted to Executive pursuant to the Company Omnibus Plan, in each case, then held by the Executive as of the date of such Change in Control provided further that any equity awards conditioned upon performance criteria, goals or objectives that so vest fully and immediately upon a Change in Control shall be payable at the target level specified in the Company Omnibus Plan or an applicable award agreement or as specified in connection with the grant, where applicable."
"(c) any Annual Cash Incentive award earned with respect to a calendar year ending on or prior to the date of such termination of employment but unpaid as of such date, shall be payable at the same time such payment would be made if Executive continued to be employed by the Company;"
"to such bonus relating to the potential application of negative discretion in respect of such bonus shall be deemed satisfied in full and (ii)is not intended to be qualified performance-based compensation (within the meaning of Section162(m) of the Code), any qualitative performance criteria applicable to such bonus shall be deemed satisfied in full;"
"provided, however, that no event described in clause (i)or (ii), shall constitute Good Reason unless (A)Executive has given the Company written notice of the termination, setting forth the conduct of the Company that is alleged to constitute Good Reason, within sixty (60)days of the first date on which Executive has knowledge of such conduct, and (B)Executive has provided the Company at least thirty (30)days following the date on which such notice is provided to cure such conduct and the Company has failed to do so. Failing such cure, a termination of employment by Executive for Good Reason shall be effective on the day following the expiration of such cure period."
"(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."
"(b) For purposes hereof, the term Confidential Information means all information developed or used by the Company relating to the Business (as herein defined), operations, employees, customers, suppliers and distributors of the Company, including, but not limited to, customer lists, purchase orders, financial data, pricing information and price lists, business plans and market strategies and arrangements and any strategic plan, all books, records, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing materials and records, personnel records, quality control records and procedures included in or relating to the Business or any of the assets of the Company and all trademarks, copyrights and patents, and applications therefore, all trade secrets, inventions, processes, procedures, research records, market surveys and marketing know-how and other technical papers. The term Confidential Information also includes any other information heretofore or hereafter acquired by the Company and deemed by it to be confidential. For purposes of this Agreement, the term Business shall mean: (i)the business of amusement and water parks; (ii)leisure theme parks; (iii)any other business engaged in or being developed (including production of materials used in the Companys businesses) by the Company, or being considered by the Company, at the time of Executives termination, in each case, to the extent such business is primarily related to the business of amusement and water parks or leisure theme parks; and (iv)any joint venture, partnership or agency arrangements relating to the businesses described in (b)(i) through (iii)above; provided that, in determining when an entity is in a Business, the Board will not act unreasonably in making such determination."
"(b) Executive agrees that, at all times from after the Effective Date, Executive will not, either personally or by his agent or by letters, circulars or advertisements, and whether for himself or on behalf of any other person, company, firm, or other entity, except in his capacity as an executive of the Company:"
"8.5 Resignation as an Officer and Director. Upon any termination of Executives employment, Executive shall be deemed to have resigned, to the extent applicable as an officer of the Company a member of the board of directors or similar body of any of Cedar Fair, L.P.s Affiliates, and as a fiduciary of any Company benefit plan. On or immediately following the date of any termination of Executives employment, Executive shall confirm the foregoing by submitting to the Company in writing a confirmation of Executives resignation(s)."
"8.8 Tolling. In the event of any violation of the provisions of this Section8, Executive acknowledges and agrees that the post-termination restrictions contained in this Section8 shall be extended by a period of time equal to the period of such violation, it being the intention of the parties hereto that the running of the applicable post-termination restriction period shall be tolled during any period of such violation."
"shall be entitled to cease making any severance payments being made hereunder, and in the event of a final, nonappealable determination by a federal or state court of competent jurisdiction that a breach of any provision of Section8 above has occurred, if such breach of Section8 above satisfies the Forfeiture Criteria and occurs while Executive is receiving severance payments in accordance with Section6 above (regardless whether the Company discovers such breach during such period of severance payment or anytime thereafter), the Company shall be entitled to recover any severance payments made to Executive."
"9.2 Scope. Executive has carefully considered the nature and extent of the restrictions upon Executive and the rights and remedies conferred upon the Company under Section8 and Section9.1, and hereby acknowledges and agrees that the same are reasonable and necessary in time and territory, are intended to eliminate competition which otherwise would be unfair to the Company, do not stifle the inherent skill and experience of Executive, would not operate as a bar to Executives sole means of support, are fully required to protect the business interests of the Company, and do not confer a benefit upon the Company disproportionate to the detriment to Executive."
"10\. Severable Provisions. The provisions of this Agreement are severable and the invalidity of any one or more provisions shall not affect the validity of any other provision. In the event that a court of competent jurisdiction shall determine that any provision of this Agreement or the application thereof is unenforceable in whole or in part because of the duration or scope thereof, the parties hereto agree that said court in making such determination shall have the power to reduce the duration and scope of such provision to the extent necessary to make it enforceable, and that the Agreement in its reduced form shall be valid and enforceable to the full extent permitted by law."
"(iii) in addition to any other rights the Company may have pursuant to the terms of this Agreement or otherwise, the Company shall be entitled to offset any compensation or benefits, if any, which the Company may be obligated, pursuant to Section6.3 of this Agreement, to pay or provide to Executive following such termination of employment by the compensation, consultants and/or other fees (excluding any such fees received by Executive in connection with his participation on the board of directors of any Person in which Executive is a member of such Persons board of directors as of immediately prior to his termination of employment with the Company) being paid to Executive during the same period; provided, that any such offset shall, in each case, be applied to the next dollars due to Executive from the Company during the applicable period and provided further that such offset is permitted under Code Section409A and other applicable law."
"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."
"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."
"tort claims under federal, state, or local law, whether created by statute or the common law. By agreeing to submit any and all claims to arbitration (except as set forth in Section12.8(h) below), Executive and Cedar Fair expressly waive any right that they may have to resolve any disputes, claims, or controversies through any other means, including a jury trial or bench trial."
"(e) The arbitrator may award attorneys fees and costs to the extent authorized by statute. The arbitration panel shall issue a written award listing the issues submitted by the parties, together with a succinct explanation of the manner in which the panel resolved the issues. The costs of the arbitration panel shall be borne by the parties in accordance with the Employment Arbitration Rules of the AAA."
"| | ---|---|--- Cedar Fair, L.P. | By: |  | /s/ Brian Witherow Name: |  | Brian Witherow Title: |  | Chief Financial Officer Cedar Fair Management, Inc. | By: |  | /s/ Eric Affeldt Name: |  | Eric Affeldt Title: |  | Chairman of Board of Directors Magnum Management Corp. | By: |  | /s/ Brian Witherow Name: |  | Brian Witherow Title: |  | Chief Financial Officer EXECUTIVE /s/ Matthew A. Ouimet Matthew A. Ouimet | Date: |  | 10/4/17 [Signature Page]"
"a. In consideration of Employees right to receive the severance payments and benefits set forth in Sections 6.1(a), (b), (c), (d), (f)and (h)and the last sentence of Section6.2 of the Employment Agreement, the Employee, on behalf of himself and his heirs, executors, administrators, trustees, legal representatives, successors and assigns (hereinafter collectively referred to for purposes of this Section1 as Employee), hereby agrees to irrevocably and unconditionally waive, release and forever discharge the Company and its past, present and future affiliates and related entities, parent and subsidiary corporations, divisions, shareholders, predecessors, current, former and future officers, directors, employees, trustees, fiduciaries, administrators, executives, agents, representatives, successors and assigns (collectively, the Company Released Parties) from any and all waivable claims, charges, demands, sums of money, actions, rights, promises, agreements, causes of action, obligations and liabilities of any kind or nature whatsoever, at law or in equity, whether known or unknown, existing or contingent, suspected or unsuspected, apparent or concealed, foreign or domestic (hereinafter collectively referred to as claims) which he has now or in the future may claim to have against any or all of the Company Released Parties based upon or arising out of any facts, acts, conduct, omissions, transactions, occurrences, contracts, claims, events, causes, matters or things of any conceivable kind or character existing or occurring or claimed to exist or to have occurred prior to the date of the Employees execution of this Agreement. Such claims include, without limitation, claims arising under the Age Discrimination in Employment Act, 29 U.S.C.  621 et seq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e et seq.; the Americans with Disabilities Act of 1990, 42 U.S.C.  12101 et seq.; the Family and Medical Leave Act of 1993, 29 U.S.C.  2601 et seq.; the Employee Retirement Income Security Act of 1974, 29 U.S.C.  1001 et seq.; the Equal Pay Act of 1963, 29 U.S.C.  206(d); Section806 of the Corporate and Criminal Fraud Accountability Act of 2002, 18 U.S.C.  1681 et seq.; the Fair Credit Reporting Act, 15 U.S.C. 1681 et seq.; any other federal, state or local statutory laws relating to employment, discrimination in employment, termination of employment, wages, benefits or otherwise; or any other federal, state or local constitution, statute, rule, or regulation, including, but not limited to, any ordinance addressing fair employment practices; any claims for employment or reemployment by the Company Released Parties; any common law claims, including but not limited to actions in tort, defamation and breach of contract; any claim or damage arising out of Employees employment with or separation from the Company Released Parties (including a claim for retaliation) under any common law theory or any federal, state or local statute or ordinance not expressly referenced above; and any and all claims for counsel fees, costs and interest."
"b. Consent to Jurisdiction. Any action by the parties hereto related to this Agreement may be instituted in any state or federal court having proper subject matter jurisdiction located within the State of Ohio, or in any other court in which jurisdiction is otherwise proper. Accordingly, the Company and the Employee irrevocably and unconditionally (a)submit to the jurisdiction of any such court and (b)waive (i)any objection to the laying of venue of any such action brought in such court and (ii)any claim that any such action brought in any such court has been brought in an inconvenient forum."
"| | ---|---|--- Cedar Fair, L.P. | | ---|---|--- | By: |  |  Name: |  | Title: |  | | | ---|---|--- Cedar Fair Management, Inc. | | ---|---|--- | By: |  |  Name: |  | Title: |  | | | ---|---|--- Magnum Management Corp. | | ---|---|--- | By: |  |  Name: |  | Title: |  |  --- EMPLOYEE "
"| | ---|---|--- Broker: |  | Colliers International | Building: |  | Landlords building which is the building containing the Premises and which building is on the Property and known One Newton Executive Park. | Business Day: |  | All days except Saturdays, Sundays and days defined as legal holidays. | Land: |  | The parcel(s) of land on which the Building and other buildings (if any) owned by the Landlord are situated. | Lease Year: |  | A twelve (12) month period beginning on the Term Commencement Date or an anniversary thereof. * * *"
" | 2.3 | Reservations. All the perimeter walls of the Premises except the inner surfaces thereof, any balconies, terraces or roofs adjacent to the Premises, and any spaces in or adjacent to the Premises used for serving other portions of the Building or other portions of the Property exclusively or in common with the Premises, including without limitation (where applicable) shafts, stacks, pipes, conduits, wires and appurtenant fixtures, fan rooms, ducts, electric or other utilities, sinks or other Building or Property facilities, and the use thereof, as well as the right of access through the Premises for the purpose of operation, maintenance, decoration and repair, are expressly reserved to Landlord. ---|---|--- "
"The Premises shall be maintained in a sanitary condition, and kept free of rodents and vermin. Tenant shall suitably store all trash and rubbish in the Premises, the Building or elsewhere on the Property in locations designated by Landlord from time to time. The language of this Section prohibiting the preparation or serving of food for consumption on or about the Premises notwithstanding, but subject to the other terms and conditions of the Lease and subject to the other terms and conditions of this Section entitled Prohibited Uses., (including, without limitation, the prohibition against intoxicating liquors and alcoholic beverages), (i)Tenants"
" | 6.3 | Taxes. Real Estate Taxes shall mean all taxes, assessments and betterments, levied, assessed or imposed by any governmental authority upon the Property or any portion thereof, or arising from, or imposed on, the ownership or operation of the Property or any portion thereof, or the ownership of the tenants interest under any ground lease (if any) and any payment in addition to or in lieu of any of the same required now or in the future. ---|---|--- If for any period of time during the Term, Tenant has paid a Tax and Operating Expense Escalation (as such escalation is defined in the following Section) and Landlord shall receive any refund of any Real Estate Taxes pertaining to such period of time, Landlord shall recalculate such Tax and Operating Expense Escalation after deducting such refund (less Landlords expenses incurred in obtaining such refund) from the Operating Expenses. If the recalculated Tax and Operating Expense Escalation is less than the Tax and Operating Expense Escalation calculated prior to such refund, Landlord shall credit such difference toward future Tax and Operating Expense Escalations or refund it to the Tenant at the Landlords discretion. Landlord shall have no obligation to seek any such refund and Tenant shall have no right to seek or to control any abatement, dispute, or other proceeding with any governmental agencies or entities with respect to the real estate taxes as described in this Section."
"(c) Depreciation and amortization, except as provided in this Section6.4, Operating Expenses., and except on materials, tools, supplies and vendor- type equipment purchased by Landlord to enable Landlord to supply services Landlord might otherwise contract for with a third party where such depreciation and amortization would otherwise have been included in the charge for such third parties services, all as determined in accordance with generally accepted accounting principles, consistently applied; or"
" | 6.6 | Late Payment Charge. If any installment of Rent or Additional Rent or any other sum due from Tenant shall not be received by Landlord on the date such installment or sum is due, Landlord reserves the right to assess, and Tenant then shall pay, a late payment charge equal to two and one half percent (2.5%)of the total amount that is in arrears and a further late payment charge equal to two and one half percent (2.5%)of the amount then outstanding may be assessed for each additional thirty (30)day period (or any fraction thereof) that such amount remains unpaid. Acceptance of such late payment charge by Landlord shall in no event constitute a waiver of Tenants default with respect to such overdue amount, nor prevent Landlord from exercising any of Landlords other rights and remedies granted by this Lease. ---|---|--- "
" | 7.3 | Heat and Air Conditioning. Landlord shall furnish to and distribute in the Premises heat and air conditioning as normal seasonal changes may require on Business Days from 8:00 a.m. to 6:00 p.m. when reasonably required for the comfortable occupancy of the Premises by Tenant. Tenant agrees to lower and close the blinds or drapes when necessary because of the suns position whenever the air conditioning system is in operation, and to cooperate fully with Landlord with regard to, and to abide by all the regulations and requirements which Landlord may prescribe for the proper functioning and protection of, the heating and air conditioning system. The air conditioning system shall be capable of providing 80 degrees Fahrenheit dry bulb and 50% relative humidity with outside conditions of 95 degrees Fahrenheit dry bulb and 75 degrees Fahrenheit wet bulb, provided Tenant acknowledges that the air conditioning system servicing the Building is designed to provide cooling based upon an occupancy of not more than one person per one hundred (100)square feet of floor area, and upon a combined lighting and standard electrical load not to exceed 4.0 watts per square foot. In the event Tenant exceeds such condition or introduces into the Premises equipment which overloads such system, or in any other way causes such system not to adequately perform its proper functions, supplementary systems may at Landlords option be provided by Landlord at Tenants expense. ---|---|--- "
"Interruption or Curtailment of Services. Landlord reserves the right to interrupt, curtail, stop or suspend the furnishing of services and the operation of any Building or Property system, when necessary by reason of accident or emergency, or of repairs, alterations, replacements or improvements in the reasonable judgment of Landlord desirable or necessary to be made, or of difficulty or inability in securing supplies or labor, or of strikes, or of any other cause beyond the reasonable control of Landlord, whether such other cause be similar or dissimilar to those herein above specifically mentioned, until said cause has been removed. Landlord shall have no responsibility or liability for any such interruption, curtailment, stoppage, or suspension of service or system, except that Landlord shall exercise reasonable diligence to eliminate the cause of same. Landlord agrees to provide reasonable notice prior to interrupting, curtailing, stopping or suspending the furnishing of services and the operation of any Building systems for the purpose of making elective alterations, replacements or improvements. Except when made necessary by an act or omission of Tenant, or Tenants employees, agents, contractors or ---|---|--- "
" | 8.4 | Fixtures, Equipment and Improvements  Removal by Tenant. All fixtures, equipment, improvements and appurtenances attached to or built into the Premises (or the Building or elsewhere on the Property with respect to Tenants tenancy) prior to or during the Term, or any extension thereof, whether by Landlord, at its expense or at the expense of Tenant, or by Tenant shall be and remain part of the Premises and shall not be removed by Tenant at the end of the Term unless Landlord, in its sole discretion, shall request Tenant to remove any of such fixtures, equipment, improvements and appurtenances in which event Tenant shall remove such at Tenants expense. Where not built into the Premises, and if furnished and installed by and at the sole expense of Tenant, all removable furniture, trade fixtures and business equipment shall not be deemed to be included in such fixtures, equipment, improvements and appurtenances and may be, and upon the request of Landlord shall be, removed by Tenant, at Tenants expense, upon the condition that such removal shall not materially damage the Premises, the Building, the Property or any portion thereof and that the cost of repairing any damages to the Premises, the Building, the Property or any portion thereof (as the case may be) arising from such removal shall be paid by Tenant, provided, however, that any of such items toward which Landlord shall have granted any allowance or credit to Tenant shall be deemed not to have been furnished and installed in the Premises by or at the sole expense of Tenant. ---|---|--- "
" | 9.4 | Tenants Compliance. Tenant covenants and agrees that during said term and for such further time as Tenant shall hold the Premises or any part thereof, Tenant will comply with all requirements of the Insurance Services Offices of Massachusetts and/or the Factory Mutual Engineering Association (or any similar bodies succeeding to their respective powers) and any local Board of Fire Underwriters; will not make or allow any use or occupation of the Premises, the Building or any other portion of the Property that may make any insurance on the Building or any other portion of the Property, or the contents thereof, void or voidable; and that in the event that Tenant does or permits anything to be done in the Premises, the Building or elsewhere on the Property (including, without limiting the generality of the foregoing, anything which in any way affects the sprinkler system) which: (a)is classified as a common hazard or special hazard by said Insurance Services Offices of Massachusetts (or its successor); (b)causes an aftercharge or (c)otherwise increases insurance rates and premium charges over those which would apply but for the doing of such thing, including, but without limiting the generality thereof, increases resulting from the refusal of the Factory Mutual Engineering Association (or any similar body succeeding to its business) to continue coverage of the Building, the Property or any portion thereof; then the Tenant will promptly pay to Landlord on demand all increased premium charges caused by the same for any and all of the following insurance: ---|---|--- insurance on the Building, the Property or any portion thereof against damage by fire, with extended coverage, demolition, sprinkler leakage and vandalism and malicious mischief endorsements; Landlords rental insurance; use and occupancy insurance carried by any tenant of any portion of the Building or the Property; insurance on the contents of Landlord and all other tenants of the Building, the Property or any portion thereof against damage by fire (with extended coverage, sprinkler leakage and vandalism and malicious mischief endorsements) or water."
"Indemnification. To the fullest extent permitted by law (and not limited by the amounts of any insurance coverage required of Tenant under this Lease), the Tenant agrees to defend, indemnify and hold harmless the Landlord (which term shall include, without limitation any of the officers, trustees, directors, partners, beneficiaries, joint venturers, members, stockholders or other principals or representatives, disclosed or undisclosed, of Landlord or any managing agent) and such other entities or individuals as the Landlord may, from time to time, direct as additional ---|---|--- "
"(c) the financial worth of the proposed assignee or subtenant is satisfactory to Landlord provided that Landlord shall not deny consent based on the financial worth of the proposed assignee or subtenant provided that such party has a net worth equal to or greater than the greater of (x)the net worth of Tenant upon the date of this Lease or (y)the net worth of Tenant immediately prior to the transfer (as determined in accordance with generally accepted accounting principles), and"
"For purposes of this Article, the term Notice of Permitted Transfer shall be deemed to mean a notice to Landlord at least 10 Business Days in advance of any assignment or subleasing to an Affiliate (subject to any legal restrictions governing the timing of such notice and provided further that if the terms of Tenants agreement with the proposed Affiliate prohibit pre- closing disclosure of the terms of the assignment or subleasing, then Tenant promptly shall so notify Landlord in writing that Tenant has confidential information relating to a proposed assignment or subleasing, and so long as Landlord provides to Tenant a letter in commercially reasonable form and content confirming that Landlord shall maintain the confidentiality of the Notice of Permitted Transfer, Tenant shall nonetheless be required to provide the Notice of Permitted Transfer 10 Business Days in advance of the assignment or subleasing), which notice shall contain (1)the name and address of the Affiliate to which the Lease will be assigned or the entire Premises (or any portion thereof) will be sublet, (2)a description satisfactory to Landlord of the relationship between the Affiliate and Tenant, (3)evidence of the Affiliates financial condition in the form of a current balance sheet and income and expense statements (all prepared in accordance with generally accepted accounting principles and certified as true, accurate and complete by an authorized officer of the Affiliate), (4)the effective date of the Permitted Transfer, (5)a copy of either (a)an assignment and assumption agreement wherein the assignee assumes all of Tenants obligations under the Lease or (b)a sublease agreement wherein the subtenant acknowledges that the sublease is subject and subordinate to this Lease, (6)a copy of the Assumption Document (if not included as part of 5a or 5b above) and (7)a copy of the guaranty (or the guarantees, as the case may be) if applicable."
"In connection with any request by Tenant for such consent, Tenant shall submit to Landlord, in writing, a statement containing the name of the proposed assignee, subtenant or other third party, such information as to its financial responsibility and standing as Landlord may require, all of the terms and provisions upon which the proposed transaction is to take place and such other information as Landlord may require. In addition, along with Tenants written request for consent, Tenant shall deliver to Landlord a non-refundable assignment/sublease review fee of $1,500 which shall be applied against assignment/sublease costs (if any) which are to be reimbursed by Tenant to Landlord as provided below in this Article 10.0, ASSIGNMENT, MORTGAGING, SUBLETTING, ETC.."
"and ending on a date specified by Landlord, which date shall be on or after the proposed expiration date of the term of the proposed subletting, as set forth in such statement, and in the event such notice is given (i)the Eliminated Space shall be eliminated from the Premises during the Elimination Period; (ii)Tenant shall surrender the Eliminated Space to Landlord on or prior to the Elimination Date in the same manner as if said Date were the date originally fixed in this Lease for the end of the Term of this Lease; (iii)if the Eliminated Space shall constitute less than an entire floor, Landlord, at Landlords expense, shall have the right to make any alterations and installations in the Premises required, in Landlords judgment, reasonably exercised, to make the Eliminated Space a self-contained rental unit with access through corridors to the elevators and core toilets serving the Eliminated Space, and if the Premises shall contain any core toilets or any corridors (including any corridors proposed to be constructed by Landlord pursuant to this subdivision (iii)providing access from the Eliminated Space to the core area), Landlord and any tenant or other occupant of the Eliminated Space shall have the right to use such toilets and corridors in common with Tenant and any other permitted occupants of the Premises, and the right to install signs and directional indicators in or about such corridors indicating the name and location of such tenant or other occupant; (iv)during the Elimination Period, the Annual Base Rent shall be reduced in the proportion which the area of the Eliminated Space bears to the total area of the Premises immediately prior to the Elimination Date (including an equitable portion of the area of any corridors referred to in subdivision (iii)of this sentence as part of the area of the Eliminated Space for the purpose of computing such reduction), and any prepaid Rent for any period after the Elimination Date allocable to the Eliminated Space shall be refunded by Landlord to Tenant; (v)there shall be an equitable apportionment of any Additional Rent payable pursuant to the Article contained herein entitled RENT for the relevant fiscal and calendar years in which said Elimination Date shall occur; and (vi)if the Elimination Period shall end prior to the date fixed in this Lease for the end of the Term of this Lease, the Eliminated Space, in its then existing condition, shall be deemed restored to and once again a part of the Premises subject to the provisions of this Lease as if said elimination had not occurred during the period (referred to as the Restoration Period) commencing on the date next following the expiration of the Elimination Period and ending on the date originally fixed in this Lease for the end of the Term of this Lease, except in the event that Landlord is unable to give Tenant possession of the Eliminated Space at the expiration of the Elimination Period by reason of the holding over or retention of possession of any tenant or other occupant, in which event (x)the Restoration Period shall not commence, and the Eliminated Space shall not be deemed restored to or a part of the Premises, until the date upon which Landlord shall give Tenant possession of such Space free of occupancies, (y)neither the date fixed in this Lease for the end of the Term of the Lease, nor the validity of this Lease shall be affected, and (z)Tenant waives any right to recover any damages which may result from the failure of Landlord to deliver possession of the Eliminated Space at the end of the Elimination Period. At the request of Landlord, Tenant shall execute and deliver an instrument or instruments, in form satisfactory to Landlord, setting forth any modifications to this Lease contemplated in or resulting from the operation of the foregoing provisions of this Article; however, neither Landlords failure to request any such instrument nor Tenants failure to execute or deliver any such instrument shall vitiate the effect of the foregoing provisions of this Article. The failure by Landlord to exercise its option under this Article with respect to any assignment or subletting shall not be deemed a waiver of such option with respect to any extension of such sublease or any subsequent assignment or subletting."
" | assignee of any Mortgage, and during the period of twelve months next preceding the Term Expiration Date to any person contemplating the leasing of the Premises or any part thereof. If during the last month of the Term, Tenant shall have removed substantially all of Tenants property from the Premises, Landlord may immediately enter and alter, renovate and redecorate the Premises, without elimination or abatement of Rent, or incurring liability to Tenant for any compensation, and such acts shall have no effect upon this Lease. If Tenant shall not be personally present to open and permit any entry into the Premises at any time when for any reason an entry therein shall be necessary or permissible, Landlord or Landlords agents must nevertheless be able to gain such entry by contacting a responsible representative of Tenant, whose name, address and telephone number shall be furnished by Tenant. Landlord shall exercise its rights of access to the Premises permitted under any of the terms and provisions of this Lease in such manner as to minimize, to the extent practicable, interference with Tenants use and occupation of the Premises. If an excavation shall be made or authorized by the Landlord to be made upon the Property, Tenant shall afford, to the person causing or authorized to cause such excavation, license to enter upon the Premises for the purpose of doing such work as said person shall deem necessary to preserve the Building, the Property or any portion thereof from injury or damage and to support the same by proper foundations without any claim for damage or indemnity against Landlord, or diminution or abatement of Rent. ---|--- "
"(b) If, as a result of fire or other casualty, the whole or a substantial portion of the Building or the Property is rendered untenantable, Landlord, within ninety (90)days from the date of such fire or casualty, may terminate this Lease by notice to Tenant, specifying a date not less than twenty (20)nor more than forty (40)days after the giving of such notice on which the Term of this Lease shall terminate. If Landlord does not so elect to terminate this Lease, then Landlord shall proceed with diligence to repair the damage to the Premises and all facilities serving the same, if any, which shall have occurred, and the Annual Base Rent shall meanwhile proportionately abate, all as provided in Paragraph (a)of this Article. However, if such damage is not repaired and the Premises restored to substantially the same condition as they were prior to such damage within six (6)months from the date of such damage, Tenant within thirty (30)days from the expiration of such six (6)month period or from the expiration of any extension thereof by reason of unavoidable delays as hereinafter provided, may terminate this Lease by notice to Landlord, specifying a date not more than sixty (60)days after the giving of such notice on which the Term of this Lease shall terminate. The period within which the required repairs may be accomplished shall be extended by the number of days, not to exceed one hundred eighty (180)days, lost as a result of unavoidable delays, which term shall be defined to include all delays referred to in the Article contained herein entitled INABILITY TO PERFORMEXCULPATORY CLAUSE."
"Except for any award specifically reimbursing Tenant for moving or relocation expenses and except for any award specifically made to Tenant for interruption of Tenants business, there are expressly reserved to Landlord all rights to compensation and damages created, accrued or accruing by reason of any such taking, appropriation or condemnation. In implementation and in confirmation of which Tenant does hereby acknowledge that Landlord shall be entitled to receive and retain all such compensation and damages, grants to Landlord all and whatever rights (if any) Tenant may have to such compensation and damages, and agrees to execute and deliver all and whatever further instruments of assignment as Landlord may from time to time request. In the event of any taking of the Premises or any part thereof for temporary use, (i)this Lease shall be and remain unaffected thereby, and (ii)Tenant shall be entitled to receive for itself any award made for such use, provided, that if any taking is for a period extending beyond the Term of this Lease, such award shall be apportioned between Landlord and Tenant as of the Term Expiration Date."
" | 15.2 | DamagesTermination. In the event of a Default Termination, Tenant shall be liable to Landlord and shall pay to Landlord (i)monthly in advance all Rent accruing from the date of a Default Termination through the date scheduled for the Term of this Lease to expire had the Default Termination not occurred plus (ii)all other unpaid Rent and other Tenant obligations accruing prior to the Default Termination, which amounts shall be paid immediately upon Default Termination; provided that at Landlords election, exercisable by Landlord at the time of a Default Termination or at any time thereafter (Landlords Acceleration Election), in addition to all other unpaid Rent and other Tenant obligations accruing prior to Landlords Acceleration Election (including, without limitation the amounts set forth in (i)and (ii)above in this paragraph), Tenant shall pay to Landlord as liquidated damages (and not as a penalty) the aggregate amount of Rent accruing or which would accrue during the period starting with the exercise of Landlords Acceleration Election and ending with the date scheduled for the expiration of the Term of this Lease had the Default Termination not occurred on an accelerated basis. ---|---|--- In the event of a Default Termination, Landlord may lease the Premises, all or any portion thereof, at any time and from time to time to such other parties and on such terms as Landlord, in Landlords sole discretion, may determine. Such re-letting shall not release Tenant from any liability whatsoever except that, if and only to the extent required by applicable law, Landlord shall apply monies collected from any such re-letting to Tenants obligations after first deducting Landlords expenses incurred to obtain possession of the Premises, remove property belonging to Tenant or persons claiming by through or under Tenant from the Premises (including, without limitation, any warehouse or storage charges), all expenses of every sort incurred by Landlord in conjunction with re-letting the Premises (including, without limitation, brokerage fees, legal and other professional fees and construction and construction management costs) and all administrative and managerial expenses associated with any of the forgoing, which such expenses may include, without limitation, hourly fees for personnel and an allocation for overhead and profit; provided that in no event shall Tenant be entitled to receive any excess of such net rents over the sums payable by Tenant to Landlord hereunder and provided further that, in any suit for the collection of damages pursuant to this subparagraph, Tenant shall in no event be entitled to a credit for any net rents from a re-letting except to the extent that such net rents are actually received by Landlord."
"Landlord and Tenant each waive their respective rights to a jury trial of any monetary or nonmonetary claim or cause of action based upon or arising out of this Lease, including, without limitation, contract claims, tort claims, breach of duty claims and all other common law or statutory claims. Each party recognizes and agrees that the foregoing mutual waiver constitutes a material inducement for it to enter into this Lease. Each party represents and warrants that it has reviewed this waiver with its respective legal counsel and knowingly and voluntarily waives its jury trial rights following such consultation."
" | 15.4 | Landlords Remedies Not Exclusive. The specified remedies to which Landlord may resort hereunder are cumulative and are not intended to be exclusive of any remedies or means of redress to which Landlord may at any time be lawfully entitled, and Landlord may invoke any remedy (including without limitation the remedy of specific performance) allowed at law or in equity as if specific remedies were not herein provided for. ---|---|--- "
"17.0 | SUBORDINATION ---|--- This Lease is subject and subordinate in all respects to any future ground lease, to all mortgages and other matters of record and to mortgages which may hereafter be placed on or affect this Lease, the Building, the Property or any portion thereof or Landlords interest or estate therein, and to each advance made or hereafter to be made under any such mortgages, and to all renewals, modifications, consolidations, replacements and extensions thereof and substitutions therefor. This Article shall be self-operative and no further instrument of subordination shall be required. In confirmation of such subordination, Tenant shall execute and deliver promptly any certificate acknowledging or confirming such subordination that Landlord or any mortgagee or their respective successor in interest may request."
"Waiver by Landlord. The failure of Landlord to seek redress for violation, or to insist upon the strict performance, of any covenant or condition of this Lease, or any of the Rules and Regulations promulgated hereunder, shall not prevent a subsequent act, which would have originally constituted a violation, from having all the force and effect of an original violation. The receipt by Landlord of Rent with knowledge of the breach of any covenant of this Lease shall not be deemed a waiver of such breach. The failure of Landlord to enforce any of such Rules and Regulations against Tenant or any other tenant, licensee or occupant in the Building or elsewhere on the Property shall not be deemed a waiver of any such Rules and Regulations. ---|---|--- "
"24.0 | HOLDOVER ---|--- If the Tenant remains in the Premises, the Building or elsewhere on the Property beyond the expiration or earlier termination of the Term of this Lease (the Holdover Period) such holding over shall not be deemed to create any tenancy, but the Tenant shall (a)be a tenant-at-sufferance only, (b)during the first 30 days of the Holdover Period pay Rent to Landlord at the times and manner determined by Landlord at a daily rate in an amount equal to 1.75 times the daily rate of the Rent and other sums payable under this Lease as of the last day of the Term of this Lease, (c)after the first 30 days of the Holdover Period, pay Rent to Landlord at the times and manner determined by"
" | 27.7 | Assignment of Lease and/or Rents. With reference to any assignment by Landlord of its interest in this Lease and/or the Rent payable hereunder, conditional in nature or otherwise, which assignment is made to or held by a bank, trust company, insurance company or other institutional lender holding a Mortgage on the Building, the Property or any portion thereof, Landlord and Tenant agree; ---|---|--- (a) that the execution thereof by Landlord and acceptance thereof by such Mortgagee shall never be deemed an assumption by such Mortgagee of any of the obligations of the Landlord hereunder, unless such Mortgagee shall, by written notice sent to the Tenant, specifically otherwise elect; and"
" | 27.9 | Early Termination. Provided Tenant is not and has not at any time been in default under the Lease beyond any applicable notice and cure period and no condition exists which with the passage of time or the giving of notice would result in a default under the Lease, at any time prior to the Early Termination Date (as defined in this Section27.9), Tenant may terminate this Lease effective May31, 2015 (the Early Termination Date) by delivering to Landlord on or before September1, 2014 (i)a notice indicating Tenants intent that the Lease terminate on the Early Termination Date and (ii)a payment of 545,715.25 as Additional Rent, which payment shall be in addition to all other Rent accruing up through and including the Early Termination Date. In the event such notice is given and accompanying payment received in a timely manner pursuant to this paragraph and all applicable terms and provisions of the Lease, the Term of the Lease shall expire May31, 2015 as if May31, 2015 were the Term Expiration Date defined in the Lease. ---|---|--- "
"2. | No awnings or other projections shall be attached to the outside walls or windows of the Building without the prior written consent of Landlord. No curtains, blinds, shades, or screens shall be attached or hung in, or used in connection with, any window or door of the premises demised to any tenant or occupant, without the prior written consent of Landlord. Such awnings, projections, curtains, blinds, shades, screens, or other fixtures must be of a quality type, design and color, and attached in a manner, approved by Landlord in writing in advance. ---|--- "
"18. | There shall not be used in the Building, either by any tenant or occupant or by their agents or contractors, in the delivery or receipt of merchandise, freight or other matter, any hand trucks or other means of conveyance except those equipped with rubber tires, rubber side guards and such other safeguards as Landlord may require. ---|--- "
"This Termination, Settlement and Release Agreement (the Agreement) is made as of the 6th day of October, 2017 (the  Effective Date ), regardless of when it is executed, by and among SCS Corporation Ltd. (SCS), and South Atlantic Petroleum Ltd. ( SAPETRO ). SCS and SAPETRO are sometimes collectively referred to herein as the  Parties,  or individually as a Party ."
"(d) Long-Term Incentive Compensation. In respect of the 2018 fiscal year, Executive shall be entitled to a long-term incentive award with an aggregate grant date fair value of $7.5 million (subject to there being sufficient shares reserved under the Amended and Restated 2012 Long-Term Incentive Plan or other incentive plan approved by stockholders), but the composition and terms of the grants shall be determined by the Committee which shall be allocated across various equity vehicles and shall be generally consistent with the grants made to"
"with continued coverage under the terms of the medical or dental program or policy as in effect from time to time at the Company for eighteen (18) months following such termination (which such 18 month period shall run concurrently with the COBRA period and which coverage shall become secondary to any Medicare coverage for which Executive becomes eligible) and Executive shall pay for such benefits at the same cost that active employees of the Company are required to pay for such benefits from time to time; provided, however, the Parties agree to cooperate such that the continued coverage is, to the extent practicable, provided in a manner so as to minimize adverse tax consequences to the Company under Section 4980D of the Code; provided, further, continued coverage shall cease at such time as Executive becomes eligible for coverage with a subsequent employer; and"
"and which coverage shall become secondary to any Medicare coverage for which Executive becomes eligible) and Executive shall pay for such benefits at the same cost that active employees of the Company are required to pay for such benefits from time to time; provided, however, the Parties agree to cooperate such that the continued coverage is, to the extent practicable, provided in a manner so as to minimize adverse tax consequences to the Company under Section 4980D of the Code; provided, further, continued coverage shall cease at such time as Executive becomes eligible for coverage with a subsequent employer; and"
"(g) No Mitigation. Executive shall not be required to mitigate the amount of any payment provided for under this Agreement by seeking other employment or otherwise and, except as provided in Sections 7(d)(iv) or (v) or 7(e)(iv) or (v) above, no such payment shall be offset or reduced by the amount of any compensation or benefits provided to Executive in any subsequent employment."
"(a) Acknowledgments. Executive acknowledges and agrees that: (i) the business in which the Company and its Affiliates are engaged is intensely competitive and that Executives employment by the Company has required, and will continue to require, that Executive have access to, and knowledge of, Confidential Information (as defined herein); (ii) the disclosure of any Confidential Information could place the Company at a serious competitive disadvantage and could do serious damage, financial and otherwise, to the business of the Company and its Affiliates; (iii) Executive has been given access to, and developed relationships with, customers of the Company and its Affiliates at the time and expense of the Company; (iv) by Executives training, experience and expertise, Executives services to the Company are, and will continue to be, extraordinary, special and unique; and (v) Executive has received good and valuable consideration for the restrictive covenants set forth herein, including without limitation, the right to acquire and own securities of the Company, the employment by the Company and the related compensation and benefits and other good and valuable consideration, the sufficiency of which is hereby acknowledged."
"(f) Nondisparagement. Executive covenants that during and following the Term, Executive will not disparage or encourage or induce others to disparage the Company or its Affiliates, together with all of their respective past and present directors and officers, as well as their respective past and present managers, officers, shareholders, partners, employees, agents, attorneys, servants and customers and each of their predecessors, successors and assigns (collectively, the Company Entities and Persons); provided that such limitation shall extend to past and present managers, officers, shareholders, partners, employees, agents, attorneys, servants and customers only in their capacities as such or in respect of their relationship with the Company and its Affiliates. The term disparage includes, without limitation, comments or statements adversely affecting in any manner (i) the conduct of the business of the Company Entities and Persons, or (ii) the business reputation of the Company Entities and Persons. Nothing in this Agreement is intended to or shall prevent either Party from providing testimony in response to a valid subpoena, court order, regulatory request or other judicial, administrative or legal process or otherwise as required by law or from making any statement in any document filed with the U.S. Securities and Exchange Commission. Either party shall also be permitted to refute any incorrect statements made about him or it by the other party."
"(2) in the case of an individual: (i) any member of the immediate family of Executive, including parents, siblings, spouse and children (including those by adoption); the parents, siblings, spouse, or children (including those by adoption) of such immediate family member, and in any such case any trust whose primary beneficiary is such individual or one or more members of such immediate family and/or Executives lineal descendants; (ii) the legal representative or guardian of the individual or of any such immediate family member in the event the individual or any such immediate family member becomes mentally incompetent; and (iii) any Person controlling, controlled by or under common control with Executive."
"(ii) For purposes of this Agreement, Confidential Information means information that is not generally known to the public (except for information known to the public because of Executives violation of Section 9(c) of this Agreement) and that is used, developed or obtained by the Company in connection with its business, including, but not limited to, information, observations and data obtained by Executive while employed by the Company or any predecessors thereof (including those obtained prior to the date of this Agreement) concerning (i) the business or affairs of the Company (or such predecessors), (ii) products or services, (iii) fees, costs and pricing structures, (iv) designs, (v) analyses, (vi) drawings, photographs and reports, (vii) computer software, including operating systems, applications and program listings, (viii) flow charts, manuals and documentation, (ix) databases, (x) accounting and business methods, (xi) inventions, devices, new developments, methods and processes, whether patentable or unpatentable and whether or not reduced to practice, (xii) customers and clients and customer or client lists, (xiii) other copyrightable works, (xiv) all production methods, processes, technology and trade secrets, and (xv) all similar and related information in whatever form. Confidential Information will not include any information that has been published in a form generally available to the public prior to the date Executive proposes to disclose or use such information. Confidential Information will not be deemed to have been published or otherwise disclosed merely because individual portions of the information have been separately published, but only if all material features comprising such information have been published in combination. For purposes of this definition, the Company shall mean the Company collectively with its Affiliates."
"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."
"the controversy, claim or dispute to binding arbitration in New York City, in the Borough of Manhattan (unless the parties agree in writing to a different location), before a single arbitrator in accordance with the Employment Dispute Resolution Rules of the American Arbitration Association then in effect. In any such arbitration proceeding the parties agree to provide all discovery deemed necessary by the arbitrator. The decision and award made by the arbitrator shall be final, binding and conclusive on all parties hereto for all purposes, and judgment may be entered thereon in any court having jurisdiction thereof. Each party shall bear its or his costs and expenses in any such arbitration, including, but not limited to, attorneys fees; provided, however, if Executive prevails on substantially all material claims, the Company shall reimburse Executive for all of his reasonable attorneys fees and costs. It is part of the essence of this Agreement that any claims hereunder shall be resolved expeditiously and as confidentially as possible. Accordingly, the Company and Executive agree that all proceedings in any arbitration shall be conducted under seal and kept strictly confidential. In that regard, no party shall use, disclose or permit the disclosure of any information, evidence or documents produced by any other party in the arbitration proceedings or about the existence, contents or results of the proceedings except as necessary and appropriate for the preparation and conduct of the arbitration proceedings, or as may be required by any legal process, or as required in an action in aid of arbitration or for enforcement of or appeal from an arbitral award. Before making any disclosure permitted by the preceding sentence, the party intending to make such disclosure shall give the other party reasonable written notice of the intended disclosure and afford such other party a reasonable opportunity to protect its interests."
"(i) Resignation as Officer or Director. Upon a termination of employment for any reason, Executive shall resign each position (if any) that Executive then holds as an officer or director of the Company and any of its Affiliates, as well as any positions Executive holds as a trustee or fiduciary of any employee benefit plan maintained by the Company. Executives execution of this Agreement shall be deemed the grant by Executive to the officers of the Company of a limited power of attorney to sign in Executives name and on Executives behalf any such documentation as may be required to be executed solely for the limited purposes of effectuating such resignations"
"THIS OFFICE LEASE AGREEMENT (this Lease) is made and entered into as of June2,2017, by and between NEEP INVESTORS HOLDINGS LLC, a Delaware limited liability company (Landlord) and SCPHARMACEUTICALS INC., a Delaware corporation (Tenant). The following exhibits and attachments are incorporated into and made a part of this Lease: Exhibit A-1 (Outline and Location of Premises), Exhibit A-2 (Description of Property), Exhibit B (Expenses and Taxes), Exhibit C (Work Letter), Exhibit D (Commencement Letter), Exhibit E (Building Rules and Regulations), and Exhibit F (Additional Provisions)."
"4. | Rent. ---|--- 4.01From and after the Commencement Date, Tenant shall pay Landlord, without any setoff or deduction, unless expressly set forth in this Lease, all Base Rent and Additional Rent due for the Term (collectively referred to as Rent). Additional Rent means all sums (exclusive of Base Rent) that Tenant is required to pay Landlord under this Lease. Tenant shall pay and be liable for all rental, sales and use taxes (but excluding income taxes), if any, imposed upon or measured by Rent. Base Rent and recurring monthly charges of Additional Rent shall be due and payable in advance on the first day of each calendar month without notice or demand. All other items of Rent shall be due and payable by Tenant on or before thirty (30)days after billing by Landlord. Rent shall be made payable to the entity, and sent to the address, Landlord designates and shall be made by good and sufficient check payable in United States of America currency or by other means designated by Landlord from time to time. If Tenant does not pay any Rent when due hereunder, Tenant shall pay Landlord an administration fee in the amount of $500.00, provided that Tenant shall be entitled to a grace period of up to five (5)days for the first late payment of Rent in a calendar year; provided, however, Landlord shall waive the administration fee for one (1)late payment in any twelve (12)month period during the Term. In addition, past due Rent shall accrue interest at twelve percent (12%) per annum, and Tenant shall pay Landlord a reasonable fee for any checks returned by Tenants bank for any reason. Nothing in this paragraph shall be deemed to waive or condition any claim of Default by Landlord for Tenants failure to timely pay Rent, which is governed by Section18, below. Landlords acceptance of less than the correct amount of Rent shall be considered a payment on account of the oldest obligation due from Tenant hereunder, then to any current Rent then due hereunder, notwithstanding any statement to the contrary contained on or accompanying any such payment from Tenant. Rent for any partial month during the Term shall be prorated. No endorsement or statement on a check or letter accompanying payment shall be considered an accord and satisfaction. Tenants obligation so to pay Rent under the Lease shall be absolute, unconditional, and independent and shall not be discharged or otherwise affected by any law or regulation now or hereafter applicable to the Premises, or any other restriction on Tenants use, or, except as expressly provided in the Lease, any casualty or taking, or any failure by Landlord to perform or other occurrence; and Tenant waives all rights now or hereafter existing to assert any defense in the nature of constructive eviction to any action seeking to recover Rent."
"(a)Commercial General Liability Insurance covering claims of bodily injury, personal injury and property damage arising out of Tenants operations and contractual liabilities, including coverage formerly known as broad form, on an occurrence basis, with minimum primary limits of $1,000,000 each occurrence and $2,000,000 annual aggregate (and not more than $25,000 self- insured retention) and a minimum excess/umbrella limit of $3,000,000."
"1. | Payments. ---|--- 1.01Tenant shall pay Tenants Pro Rata Share of the amount, if any, by which Expenses (defined below) for each calendar year during the Term exceed Expenses for the Base Year (the Expense Excess) and also the amount, if any, by which Taxes (defined below) for each Fiscal Year during the Term exceed Taxes for the Base Year (the Tax Excess). If Expenses or Taxes in any calendar year or Fiscal Year decrease below the amount of Expenses or Taxes for the Base Year, Tenants Pro Rata Share of Expenses or Taxes, as the case may be, for that calendar year or Fiscal Year shall be $0. Landlord shall provide Tenant with a good faith estimate of the Expense Excess and of the Tax Excess for each calendar year or Fiscal Year during the Term. On or before the first day of each month, Tenant shall pay to Landlord a monthly installment equal to one-twelfth of Tenants Pro Rata Share of Landlords estimate of both the Expense Excess and Tax Excess. If Landlord determines that its good faith estimate of the Expense Excess or of the Tax Excess was incorrect by a material amount, Landlord may provide Tenant with a revised estimate. After its receipt of a revised estimate, Tenants monthly payments shall be based upon the revised estimate. If Landlord does not provide Tenant with an estimate of the Expense Excess or the Tax Excess by the first day of a calendar year or Fiscal Year, as the case may be, Tenant shall continue to pay monthly installments based on the previous years estimate(s) until Landlord provides Tenant with the new estimate. Upon delivery of the new estimate, an adjustment shall be made for any month for which Tenant paid monthly installments based on the previous years estimate. Tenant shall pay Landlord the amount of any underpayment within thirty (30)days after receipt of the new estimate. Any overpayment shall be refunded to Tenant within thirty (30)days or credited against the next due future installment(s) of Additional Rent."
"3.Taxes shall mean: (a)all real property taxes and other assessments on the Building and/or Property, including, but not limited to, gross receipts taxes, assessments for special improvement districts and building improvement districts, governmental charges, fees and assessments for police, fire, traffic mitigation or other governmental service of purported benefit to the Property, taxes and assessments levied in substitution or supplementation in whole or in part of any such taxes and assessments and the Propertys share of any real estate taxes and assessments under any reciprocal easement agreement, common area agreement or similar agreement as to the Property; (b)all personal property taxes for property that is owned by Landlord and used in connection with the operation, maintenance and repair of the Property; and (c)all costs and fees incurred in connection with seeking reductions in any tax liabilities described in (a)and (b), including, without limitation, any costs incurred by Landlord for compliance, review and appeal of tax liabilities. Without limitation, Taxes shall be determined without regard to any green building credit and shall not include any income, capital levy, transfer, capital stock, gift, estate or inheritance tax. If a change in Taxes is obtained for any year of the Term during which Tenant paid Tenants Pro Rata Share of any Tax Excess, then Taxes for that year will be retroactively adjusted and Landlord shall provide Tenant with a credit, if any, based on the adjustment. Likewise, if a change is obtained for Taxes for the Base Year, Taxes for the Base Year shall be restated and the Tax Excess for all subsequent years shall be recomputed. Tenant shall pay Landlord the amount of Tenants Pro Rata Share of any such increase in the Tax Excess within thirty (30)days after Tenants receipt of a statement from Landlord. "
"The records and related information obtained by Tenant shall be treated as confidential, and applicable only to the Building and the Property by Tenant and its auditors, consultants and other parties reviewing such records on behalf of Tenant (collectively, Tenants Auditors). In no event shall Tenant be permitted to examine Landlords records or to dispute any statement of Expenses unless Tenant has paid and continues to pay (i)monthly the Base Rent, and (ii)monthly the regular recurring estimated payment of Expenses, Taxes and Electricity. In the event such audit discloses that Landlords statement overstated such actual costs and expenses by five percent (5.0%) or more, then Landlord shall reimburse Tenant for the actual and reasonable cost of said audit within thirty (30)days of written demand therefor by Tenant."
"1. | This Work Letter shall set forth the obligations of Landlord and Tenant with respect to the preparation of the Premises for Tenants occupancy. As used herein, Landlord Work shall mean the work to be completed by Landlord, in a good and workmanlike manner, and in accordance with applicable Laws, to prepare the Premises for Tenants occupancy as described in the plan(s) and specifications set forth or referred to in Exhibit C-1 attached hereto (the Plan) and Exhibit C-2 attached hereto (the Building Standard Specifications, and together with the Plan, the Plans and Specifications), which are incorporated herein. Landlord shall enter into a direct contract for the Landlord Work with a general contractor selected by Landlord in its sole discretion, which may be Cranshaw Construction, an affiliate of Landlord. ---|--- "
" | (a) | Tenants failure to furnish information in accordance with this Work Letter or to respond to any request by Landlord for any approval or information within any time period prescribed, or if no time period is prescribed, then within two (2)Business Days after such written request; or ---|---|--- "
" | (i) | Any other delay reasonably and directly chargeable to Tenant, its agents, employees or independent contractors; ---|---|--- then, for purposes of determining the Commencement Date, the date that Landlord Work shall be deemed to be Substantially Complete shall be the day that Landlord Work would have been Substantially Complete absent any such Tenant Delay, all as reasonably determined by Landlord."
"8.Landlord shall have the right to approve the weight, size, or location of heavy equipment or articles in and about the Premises, which approval shall not be unreasonably withheld; provided that approval by Landlord shall not relieve Tenant from liability for any damage in connection with such heavy equipment or articles. "
"10.Tenant shall not: (a)make or permit any improper, objectionable or unpleasant noises or odors in the Building, or otherwise interfere in any way with other tenants or persons having business with them; (b)solicit business or distribute or cause to be distributed, in any portion of the Building, handbills, promotional materials or other advertising; or (c)conduct or permit other activities in the Building that might, in Landlords sole opinion, constitute a nuisance. "
"14.Tenant shall not take any action which would violate Landlords labor contracts or which would cause a work stoppage, picketing, labor disruption or dispute or interfere with Landlords or any other tenants or occupants business or with the rights and privileges of any person lawfully in the Building (Labor Disruption). Tenant shall take the actions necessary to resolve the Labor Disruption, and shall have pickets removed and, at the request of Landlord, immediately terminate any work in the Premises that gave rise to the Labor Disruption, until Landlord gives its written consent for the work to resume. Tenant shall have no claim for damages against Landlord or any of the Landlord Related Parties nor shall the Commencement Date of the Term be extended as a result of the above actions. "
"15.Tenant shall not install, operate or maintain in the Premises or in any other area of the Building, electrical equipment that would overload the electrical system beyond its capacity for proper, efficient and safe operation as determined solely by Landlord. Tenant shall not furnish cooling or heating to the Premises, including, without limitation, the use of electric or gas heating devices, without Landlords prior written consent. Tenant shall not use more than its proportionate share of telephone lines and other telecommunication facilities available to service the Building. "
"16.Tenant shall not operate or permit to be operated a coin or token operated vending machine or similar device (including, without limitation, telephones, lockers, toilets, scales, amusement devices and machines for sale of beverages, foods, candy, cigarettes and other goods), except for machines for the exclusive use of Tenants employees and invitees. "
"4.4 Benefits. During the Employment Period, Executive shall be entitled to participate in any benefit and compensation plans, including but not limited to medical, disability, life insurance, 401(k) and deferred compensation plans (but excluding any severance or bonus plans unless specifically referenced in this Agreement) offered by the Company as in effect from time to time (collectively, Benefit Plans), on the same basis as those generally made available to other senior executives of the Company, to the extent Executive may be eligible to do so under the terms of any such Benefit Plan; provided, that the Company shall cover the costs of an annual physical for Executive under the Companys medical plan. Executive understands that any such Benefit Plans may be terminated or amended from time to time by the Company in its sole discretion."
"4.6 Clawback. Subject to, or in combination with, Section12.13, Executive agrees that the Board may, in appropriate circumstances, require reimbursement of any Incentive Compensation paid or granted to Executive within the preceding twenty-four months where: (1)the payment was predicated upon achieving certain financial results that were subsequently the subject of a substantial restatement of Company financial statements filed with the Securities and Exchange Commission; and (2)the Board determines Executive engaged in intentional misconduct that caused or substantially caused the need for the substantial restatement; and (3)a lower payment would have been made to the Executive based upon the restated financial results. In each such instance, the Company will, to the extent practicable, seek to recover from Executive the amount by which Executives Incentive Compensation for the relevant period exceeded the lower payment that would have been made based on the restated financial results and Executive shall be liable to repay the same."
"multiplying the amount of such Annual Cash Incentive, which would be due for the full calendar year by a fraction, the numerator of which is the number of days during the calendar year of termination that Executive is employed with the Company and the denominator of which is 365 based on actual performance and payable at the same time that other senior executives of the Company receive bonus payments in respect of the calendar year in which such termination occurs, but in no event later than March15 of the calendar year following the end of the calendar year to which such cash incentive award relates; provided, that to the extent Executives Annual Cash Incentive award for the calendar year in which Executives termination occurs (i)is intended to be qualified performance-based compensation (within the meaning of Section162(m) of the Internal Revenue Code (the Code), any qualitative performance criteria applicable to such bonus relating to the potential application of negative discretion in respect of such bonus shall be deemed satisfied in full and (ii)is not intended to be qualified performance-based compensation (within the meaning of Section162(m) of the Code), any qualitative performance criteria applicable to such bonus shall be deemed satisfied in full;"
"(d) 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. Notwithstanding the foregoing, in no event will the Noncompetition Period exceed a thirty-six- (36-) month period. For the avoidance of doubt, this means, in the event Executive receives severance payments from the Company pursuant to Section6.1(b)(ii) hereof, the Noncompetition Period shall run for a period of thirty-six (36)months following the date Executive terminates employment with the Company (i.e., the twelve- (12-) month period following Executives termination of employment, plus the thirty-six (36)months for which Executive receives severance payments pursuant to Section6.1(b) = forty-eight (48)months, but subject to the limitation preventing a Noncompetition Period in excess of thirty-six (36)months)."
"(b) For purposes hereof, the term Confidential Information means all information developed or used by the Company relating to the Business (as herein defined), operations, employees, customers, suppliers and distributors of the Company, including, but not limited to, customer lists, purchase orders, financial data, pricing information and price lists, business plans and market strategies and arrangements and any strategic plan, all books, records, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing materials and records, personnel records, quality control records and procedures included in or relating to the Business or any of the assets of the Company and all trademarks, copyrights and patents, and applications therefore, all trade secrets, inventions, processes, procedures, research records, market surveys and marketing know-how and other technical papers. The term Confidential Information also includes any other information heretofore or hereafter acquired by the Company and deemed by it to be confidential. For purposes of this Agreement, the term Business shall mean: (i)the business of amusement and water parks; (ii)leisure theme parks; (iii)any other business engaged in or being developed (including production of materials used in the Companys businesses) by the Company, or being considered by the Company, at the time of Executives termination, in each case, to the extent such business is primarily related to the business of amusement and water parks or leisure theme parks; and (iv)any joint venture, partnership or agency arrangements relating to the businesses described in (b)(i) through (iii)above provided that, in determining when an entity is in a Business, the Board will not act unreasonably in making such determination."
"8.7 Non-Disparagement. During his employment with the Company and at any time thereafter, Executive agrees not to disparage or encourage or induce others to disparage the Company, any of its respective employees that were employed during Executives employment with the Company or any of its respective past and present, officers, directors, products or services (the Company Parties). For purposes of this Section8.7, the term disparage includes, without limitation, comments or statements to the press, to the Companys employees or to any individual or entity with whom the Company has a business relationship (including, without limitation, any vendor, supplier, customer or distributor), or any public statement, that in each case is intended to, or can be reasonably expected to, materially damage any of the Company Parties. Notwithstanding the foregoing, nothing in this Section8.7 shall prevent Executive from making any truthful statement to the extent, but only to the extent (A)necessary with respect to any litigation, arbitration or mediation involving this Agreement, including, but not limited to, the enforcement of 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, mediator or administrative or legislative body (including any committee thereof) with apparent jurisdiction over Executive."
"8.8 Tolling. In the event of any violation of the provisions of this Section8, Executive acknowledges and agrees that the post-termination restrictions contained in this Section8 shall be extended by a period of time equal to the period of such violation, it being the intention of the parties hereto that the running of the applicable post-termination restriction period shall be tolled during any period of such violation."
"(iii) in addition to any other rights the Company may have pursuant to the terms of this Agreement or otherwise, the Company shall be entitled to offset any compensation or benefits, if any, which the Company may be obligated, pursuant to Section6.4 of this Agreement, to pay or provide to Executive following such termination of employment by the compensation, consultants and/or other fees (excluding any such fees received by Executive in connection with his participation on the board of directors of any Person in which Executive is a member of such Persons board of directors as of immediately prior to his termination of employment with the Company) being paid to Executive during the same period; provided, that any such offset shall, in each case, be applied to the next dollars due to Executive from the Company during the applicable period and provided further that such offset is permitted under Code Section409A and other applicable law."
"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 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."
"(d) For purposes of Code Section409A, Executives right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., payment shall be made within thirty (30)days following the date of termination), the actual date of payment within the specified period shall be within the sole discretion of the Company, unless provided otherwise herein."
"(b) The arbitration shall be conducted by a panel of three (3)arbitrators in accordance with the Employment Arbitration Rules of the American Arbitration Association (AAA) except as provided in this Agreement. Within twenty (20)days after notice from one party to the other of the notifying partys election to arbitrate, each party shall select one (1)arbitrator. Within twenty (20)days after the selection of the two (2)arbitrators by the parties, said arbitrators shall in turn select a third arbitrator. If the two (2)arbitrators cannot agree upon the selection of a third arbitrator, the parties agree that the third arbitrator shall be appointed by the AAA in accordance with AAAs arbitrator selection procedures, including the provision of a list of potential arbitrators to both parties. Each member of the panel shall be a lawyer admitted to practice law for a minimum of 15 years."
"12.9 Code Section280G. Anything in this Agreement to the contrary notwithstanding, Executive and Cedar Fair agree that in no event shall the present value of all payments, distributions and benefits provided to Executive or for Executives benefit pursuant to the terms of this Agreement or otherwise which constitute a parachute payment when aggregated with other payments, distributions, and benefits which constitute parachute payments, exceed two hundred ninety-nine percent (299%)of Executives base amount. As used herein, parachute payment has the meaning ascribed to it in Section280G(b)(2) of the Code, without regard to Code Section280G(b)(2)(A)(ii); and base amount has the meaning ascribed to it in Code Section280G and the regulations thereunder. If the present value as defined in Code Sections 280G (d)(4)and 1274(b) (2), of such aggregate parachute payments exceeds the 299% limitation set forth herein, such payments, distributions and benefits shall be reduced by Cedar Fair in accordance with the order of priority set forth below so that such reduced amount will result in no portion of the payments, distributions and benefits being subject to excise tax. Such payments, distributions and benefits will be reduced by Cedar Fair in accordance with the following order of priority (A)reduction of cash payments; (B)cancellation of accelerated vesting of unit awards; and (C)reduction of employee benefits. If acceleration of vesting of unit award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executives unit awards."
"Released Parties; any common law claims, including but not limited to actions in tort, defamation and breach of contract; any claim or damage arising out of Employees employment with or separation from the Company Released Parties (including a claim for retaliation) under any common law theory or any federal, state or local statute or ordinance not expressly referenced above; and any and all claims for counsel fees and cost."
"e. Counterparts. This Agreement may be executed in any number of counterparts, each of which so executed will be deemed to be an original, and such counterparts will, when executed by the parties hereto, together constitute but one agreement. Facsimile and electronic signatures shall be deemed to be the equivalent of manually signed originals."
"CREDIT AGREEMENT dated as of October6, 2017 (this Agreement), among Caesars Entertainment Operating Company, Inc., a Delaware corporation, CEOC, LLC, a Delaware limited liability company, the LENDERS party hereto from time to time and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the Administrative Agent) and collateral agent for the Secured Parties."
"WHEREAS, on January17, 2017, the Bankruptcy Court entered the Confirmation Order confirming the Debtors Third Amended Joint Plan of Reorganization pursuant to Chapter 11 of the Bankruptcy Code, filed on January13, 2017, of Caesars Entertainment Operating Company, Inc., et al., Docket No.6318-1 (as amended, modified or supplemented from time to time, the Plan of Reorganization)."
"Alternate Currency shall mean (i)with respect to any Letter of Credit, Canadian Dollars, Euros, Pounds Sterling, Japanese Yen and any other currency other than Dollars as may be acceptable to the Administrative Agent and the applicable L/C Issuer with respect thereto in their sole discretion and (ii)with respect to any Loan, Canadian Dollars, Euros, Pounds Sterling, Japanese Yen and any currency other than Dollars that is approved in accordance with Section1.08."
"Availability Period shall mean, with respect to any Classof Revolving Facility Commitments under any Revolving Facility, the period from and including the Closing Date (or, if later, the effective date for such Classof Revolving Facility Commitments) to but excluding the earlier of the Revolving Facility Maturity Date with respect to such Classand, in the case of each of the Revolving Facility Loans, Revolving Facility Borrowings and Letters of Credit under such Revolving Facility, the date of termination in full of the Revolving Facility Commitments of such Class."
"Capital Expenditures shall mean, for any person in respect of any period, (a)the aggregate of all expenditures (whether paid in cash or accrued as liabilities and including in all events amounts expended or capitalized under Capital Lease Obligations) incurred by such person during such period that, in accordance with GAAP, are or should be included in additions to property, plant or equipment or similar items reflected in the statement of cash flows of such person and (b)Capitalized Software Expenditures."
"Cash Management Agreement shall mean any agreement to provide to the Borrower or any Subsidiary cash management services for collections, treasury management services (including controlled disbursement, overdraft, automated clearing house fund transfer services, return items and interstate depository network services), any demand deposit, payroll, trust or operating account relationships, commercial credit cards, merchant card, purchase or debit cards, non-card e-payables services, and other cash management services, including electronic funds transfer services, lockbox services, stop payment services and wire transfer services."
"Class shall mean, (a)when used in reference to any Loan or Borrowing, shall refer to whether such Loan, or the Loans comprising such Borrowing, are Term B Loans, Other Term Loans having the same terms, Initial Revolving Loans or Other Revolving Loans having the same terms; and (b)when used in reference to any Commitment, refers to whether such Commitment is in respect of a commitment to make Term B Loans, Other Term Loans having the same terms, Initial Revolving Loans or Other Revolving Loans having the same terms. Other Term Loans, or Other Revolving Loans that have different terms and conditions (together with the Commitments in respect thereof) from the Term B Loans or the Initial Revolving Loans, respectively, or from other Other Term Loans or other Other Revolving Loans, as applicable, shall be construed to be in separate and distinct Classes."
"(f) on the Closing Date and at all times thereafter, except as otherwise contemplated by this Agreement or any Security Document, all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent to be filed, registered or recorded to create the Liens intended to be created by the Security Documents (in each case, including any supplements thereto) and perfect such Liens to the extent required by, and with the priority required by, the Security Documents, shall have been filed, registered or recorded or delivered to the Collateral Agent for filing, registration or the recording concurrently with, or promptly following, the execution and delivery of each such Security Document;"
"Commitment Letter shall mean that certain Amended and Restated Commitment Letter dated as of February17, 2017, by and among Caesars Entertainment Operating Company, Inc., Credit Suisse Securities (USA) LLC, Credit Suisse AG, Cayman Islands Branch, Deutsche Bank Securities Inc., Deutsche Bank AG New York Branch, Barclays Bank PLC, Citigroup Global Markets Inc., Goldman Sachs Bank USA, JPMorgan Chase Bank, N.A., Morgan Stanley Senior Funding, Inc., UBS Securities LLC and UBS AG, Stamford Branch."
"Conduit Lender shall mean any special purpose corporation organized and administered by any Lender for the purpose of making Loans otherwise required to be made by such Lender and designated by such Lender in a written instrument; provided, that the designation by any Lender of a Conduit Lender shall not relieve the designating Lender of any of its obligations to fund a Loan under this Agreement if, for any reason, its Conduit Lender fails to fund any such Loan, and the designating Lender (and not the Conduit Lender) shall have the sole right and responsibility to deliver all consents and waivers required or requested under this Agreement with respect to its Conduit Lender;"
"Covenant Suspension Period shall mean the period commencing on the date of any Qualifying Act of Terrorism and continuing until (and including) the last day of the second full fiscal quarter following the fiscal quarter in which the Qualifying Act of Terrorism occurs; provided, however, that if a separate and distinct Qualifying Act of Terrorism occurs during any Covenant Suspension Period, such Covenant Suspension Period shall continue until (and including) the last day of the second full fiscal quarter following the fiscal quarter in which such subsequent Qualifying Act of Terrorism shall occur. Notwithstanding the foregoing, the Borrower may, in its sole discretion, elect that any Covenant Suspension Period end on any date prior to the date that such Covenant Suspension Period would otherwise end absent such election. The first day following the end of the Covenant Suspension Period is the Covenant Resumption Date."
"(e) 100% of the aggregate amount of contributions to the common capital of the Borrower received in cash (and the fair market value (as determined in good faith by the Borrower) of property other than cash) after the Closing Date (subject to the same exclusions as are applicable to clause (d)above), plus"
"(f) 100% of the aggregate principal amount of any Indebtedness (including the liquidation preference or maximum fixed repurchase price, as the case may be, of any Disqualified Stock) of the Borrower or any Subsidiary thereof issued after the Closing Date (other than Indebtedness issued to a Subsidiary), which has been converted into or exchanged for Equity Interests (other than Disqualified Stock) in the Borrower or any Parent Entity, plus"
"Designated Non-Cash Consideration shall mean the fair market value (as determined in good faith by the Borrower) of non-cash consideration received by the Borrower or any Subsidiary in connection with an Asset Sale that is so designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower, setting forth the basis of such valuation, less the amount of cash or cash equivalents received in connection with a subsequent sale of such Designated Non-Cash Consideration."
"Development Project shall mean Investments, directly or indirectly, (a)in any joint ventures or Unrestricted Subsidiaries in which the Borrower or any of its Subsidiaries, directly or indirectly, has control or with whom it has a management, development or similar contract and, in the case of a joint venture, in which the Borrower or any of its Subsidiaries owns (directly or indirectly) at least 25% of the Equity Interest in such joint venture, or (b)in, or expenditures with respect to, casinos and racinos or persons that own casinos or racinos (including casinos and racinos in development or under construction that are not presently open or operating with respect to which the Borrower or any of its Subsidiaries has (directly or indirectly through subsidiaries) entered into a management, development or similar contract and such contract remains in full force and effect at the time of such Investment), in each case, used to finance, or made for the purpose of allowing such joint venture, Unrestricted Subsidiary, casino or racino, as the case may be, to finance, the purchase, development, construction or other acquisition of any fixed or capital assets or the refurbishment of existing assets or properties that develops, adds to or significantly improves the property of such joint venture, Unrestricted Subsidiary, casino or racino and assets ancillary or related thereto (including, without limitation, hotels, restaurants and other similar projects), or the construction and development of a casino, racino or assets ancillary or related thereto (including, without limitation, hotels, restaurants and other similar projects) and including Pre-Opening Expenses with respect to such joint venture, Unrestricted Subsidiary, casino or racino."
"Dollar Equivalent means, at any time, (a)with respect to any amount denominated in Dollars, such amount, and (b)with respect to any amount denominated in any currency other than Dollars, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the L/C Issuer, as applicable, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date or other applicable date of determination) for the purchase of Dollars with such currency."
"(ix) 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 any Loan Party solely to the extent that such net cash proceeds are excluded from the calculation of the Cumulative Credit,"
"ERISA Affiliate shall mean any trade or business (whether or not incorporated) that, together with the Borrower or any Subsidiary, is treated as a single employer under Section414(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."
"ERISA Event shall mean (a)any Reportable Event or the requirements of Section4043(b) of ERISA apply with respect to a Plan; (b)with respect to any Plan, the failure to satisfy the minimum funding standard under Section412 of the Code or Section302 of ERISA, whether or not waived; (c)the filing pursuant to Section412(c) of the Code or Section302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan, the failure to make by its due date a required installment under Section430(j) of the Code with respect to any Plan or the failure to make any required contribution to a Multiemployer Plan; (d)the incurrence by the Borrower, any Subsidiary or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan or Multiemployer Plan; (e)the receipt by the Borrower, any Subsidiary or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan under Section4042 of ERISA; (f)the incurrence by the Borrower, any Subsidiary or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; (g)the receipt by the Borrower, any Subsidiary or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower, any Subsidiary or"
"any ERISA Affiliate of any notice, concerning the impending imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, or in endangered or critical status, within the meaning of Section432 of the Code or Section305 of ERISA; (h)the conditions for imposition of a lien under Section303(k) of ERISA shall have been met with respect to any Plan; (i)with respect to a Plan, the provision of security pursuant to Section206(g) of ERISA; or (j)the withdrawal of the Borrower, any Subsidiary or any ERISA Affiliate from a Plan subject to Section4063 of ERISA during a plan year in which such entity was a substantial employer as defined in Section4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section4062(e) of ERISA."
"(c) (i) Capital Expenditures and New Project expenditures by the Borrower and the Subsidiaries on a consolidated basis during such Applicable Period that are paid in cash and (ii)the aggregate consideration paid in cash during the Applicable Period in respect of Permitted Business Acquisitions and other Investments permitted hereunder less any amounts received in respect thereof in cash as a return of capital,"
"(h) permitted Restricted Payments made in cash by the Borrower during such Applicable Period and permitted Restricted Payments made by any Subsidiary to any person other than the Borrower or any of the Subsidiaries during such Applicable Period, in each case in accordance with Section6.06 (other than Section6.06(e), except to the extent such Restricted Payments were financed with internally generated cash flow of the Borrower or any Subsidiary),"
"(i) amounts paid in cash during such Applicable Period on account of (A)items that were accounted for as non-cash reductions of Net Income in determining Consolidated Net Income or as non-cash reductions of Consolidated Net Income in determining EBITDA of the Borrower and the Subsidiaries in a prior Applicable Period and (B)reserves or accruals established in purchase accounting,"
"(k) the amount related to items that were added to or not deducted from Net Income in calculating Consolidated Net Income or were added to or not deducted from Consolidated Net Income in calculating EBITDA to the extent such items represented a cash payment (which had not reduced Excess Cash Flow upon the accrual thereof in a prior Applicable Period), or an accrual for a cash payment, by the Borrower and the Subsidiaries or did not represent cash received by the Borrower and the Subsidiaries, in each case on a consolidated basis during such Applicable Period,"
"(n) to the extent any permitted Capital Expenditures referred to in clause(A)(d) above and the delivery of the related equipment do not occur in the following Applicable Period of the Borrower specified in the certificate of the Borrower provided pursuant to clause(A)(d) above, the amount of such Capital Expenditures that were not so made in such following Applicable Period,"
"Excluded Debt Contributions shall mean the cash and the fair market value of assets other than cash (as determined by the Borrower in good faith) received by the Borrower after the Closing Date from: (a)contributions to its common Equity Interests, and (b)the sale or issuance (other than to a Subsidiary of the Borrower or to any Subsidiary management equity plan or stock option plan or any other management or employee benefit plan or agreement) of Qualified Equity Interests in the Borrower, in each case designated as Excluded Debt Contributions pursuant to a certificate of a Responsible Officer of the Borrower on or promptly after the date such capital contributions are made or the date such Equity Interest is sold or issued, as the case may be."
"(b) in the case of any pledge of voting Equity Interests in any Foreign Subsidiary or FSHCO (in each case, that is owned directly by a Loan Party) to secure the Obligations, any voting Equity Interest of such Foreign Subsidiary or FSHCO in excess of 65% of the outstanding Equity Interests of such class;"
"(d) any Equity Interests in any person that is not a Wholly-Owned Subsidiary to the extent (A)that a pledge thereof to secure the Obligations is prohibited by (i)any applicable organizational documents, joint venture agreement or shareholder agreement or (ii)any other contractual obligation with an unaffiliated third party not in violation of Section6.09(c) (other than, in this subclause (A)(ii), non-assignment provisions which are ineffective under Article 9 of the Uniform Commercial Code or other applicable Requirements of Law), (B)any organizational documents, joint venture agreement or shareholder agreement (or other contractual obligation referred to in subclause (A)(ii) above) prohibits such a pledge without the consent of any other party; provided, that this clause(B) shall not apply if (1)such other party is a Loan Party or a Wholly-Owned Subsidiary or (2)consent has been obtained to consummate such pledge (it being understood that the foregoing shall not be deemed to obligate the Borrower or any Subsidiary to obtain any such consent) and for so long as such organizational documents, joint venture agreement or shareholder 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 (other than, in the case of other contractual obligations referred to in subclause (A)(ii), non-assignment provisions which are ineffective under Article 9 of the Uniform Commercial Code or other applicable Requirement of Law);"
"(d) each Domestic Subsidiary that is prohibited by any applicable contractual requirement from guaranteeing or granting Liens to secure the Obligations on the Closing Date or at the time such Subsidiary becomes a Subsidiary not in violation of Section6.09(c) (and for so long as such restriction or any replacement or renewal thereof is in effect),"
"Excluded Swap Obligation shall mean, with respect to any Subsidiary Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of 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 Subsidiary Loan Partys 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 Subsidiary Loan Party or the grant of such security interest becomes effective with respect to such Swap Obligation, unless otherwise agreed between the Administrative Agent and the 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."
"Federal Funds Rate shall mean, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided, that (a)if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b)if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent; provided, that the Federal Funds Rate, if negative, shall be deemed to be 0.00%."
"First Lien Intercreditor Agreement shall mean a First Lien Intercreditor Agreement substantially in the form of Exhibit N hereto, or such other customary form reasonably acceptable to the Administrative Agent and the Borrower, in each case, as such document may be amended, restated, supplemented or otherwise modified from time to time."
"GAAP shall mean generally accepted accounting principles in effect from time to time in the United States, applied on a consistent basis, subject to the provisions of Section1.02; provided that any reference to the application of GAAP in Sections 3.13(b), 3.20, 5.03, 5.07 and 6.02(e) to a Foreign Subsidiary (and not as a consolidated Subsidiary of the Borrower) shall mean generally accepted accounting principles in effect from time to time in the jurisdiction of organization of such Foreign Subsidiary."
"Immaterial Subsidiary shall mean any Subsidiary that (a)did not, as of the last day of the fiscal quarter of the Borrower most recently ended for which financial statements have been (or were required to be) delivered pursuant to Section5.04(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 Borrower and the Subsidiaries on a consolidated basis as of such date and (b)taken together with all Immaterial Subsidiaries as of the last day of the fiscal quarter of the Borrower most recently ended, did not have assets with a value in excess of 5.0% of Consolidated Total Assets or revenues representing in"
"Interest Payment Date means, (a)as to any Loan other than an ABR Loan, the last day of each Interest Period applicable to such Loan and the scheduled maturity date of such Loan; provided, however, that if any Interest Period for a Eurocurrency Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b)as to any ABR Loan, the last Business Day of each March, June, September and December and the scheduled maturity date of such Loan."
"Issuer Documents means, with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer and the Borrower (or any subsidiary or other Person designated by the Borrower) or in favor of the L/C Issuer and relating to such Letter of Credit."
"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, a Master Lease, an Additional Lease or an agreement to sell be deemed to constitute a Lien."
"Material Adverse Effect shall mean a material adverse effect on (a)the business, assets, operations or financial condition of the Borrower and its Subsidiaries, taken as a whole (excluding any matters disclosed to the Arrangers prior to February17, 2017, or disclosed in the most recent annual report on Form 10-K or any quarterly or periodic report of Caesars Entertainment Operating Company, Inc. or CEC filed prior to February17, 2017) or (b)the material rights or remedies (taken as a whole) of the Administrative Agent and the Lenders under the Loan Documents."
"Material Leased Real Property(ies) shall mean (a)each parcel of Real Property that is located in the United States and is leased by any Loan Party that constitutes Leased Property under a Master Lease and (b)each parcel of Real Property that is located in the United States and is leased by any Loan Party that has an individual fair market value (on a per property basis and as determined by the Borrower in good faith) of at least $25.0million (x)as of the Closing Date, for Real Property now leased or (y)the date of acquisition, for Real Property acquired after the Closing Date; provided, that notwithstanding the foregoing or anything to the contrary in this Agreement, except for any leased Real Property that constitutes Leased Property under a Master Lease, the Loan Parties shall not be required to grant a Mortgage on (i)any leasehold interest in any Real Property entered into after the date hereof that has a fair market value (including the reasonably anticipated fair market value of the gaming facility or other improvements to be developed thereon) of less than $250.0million or a remaining term (including options to extend) of less than 10 years or (ii)any leasehold interest in any leased real property acquired as part of a Permitted Business Acquisition or other Investment permitted hereunder, in either case, if after the exercise of commercially reasonable efforts by the Loan Parties (which shall not include the payment of consideration other than reasonable attorneys fees and other expenses incidental thereto), the landlord under such lease has not consented to the granting of a Mortgage."
"(a) 100% of the cash proceeds actually received by the Borrower or any Subsidiary (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise and including casualty insurance settlements and condemnation awards, but only as and when received and excluding, for the avoidance of doubt, any proceeds of insurance that in the good faith determination of the Borrower are allocable to business interruption) from any Asset Sale that is conducted or classified under Section6.05(g) or any Sale and Leaseback Transaction that is conducted or classified under Section6.03(b)(ii), net of (i)attorneys fees, accountants fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, required debt payments and required payments of other obligations relating to the applicable asset to the extent such debt or obligations are secured by a Lien permitted hereunder (other than pursuant to the Loan"
"Other Taxes shall mean all present or future stamp or documentary Taxes or any other excise, transfer, sales, property, intangible, mortgage recording, or similar Taxes, charges or levies arising from any payment made under any Loan Document or from the execution, registration, delivery or enforcement of, or otherwise with respect to, the Loan Documents, and, for the avoidance of doubt, excluding any Excluded Taxes."
"Permitted Business Acquisition shall mean any acquisition of all or substantially all the assets of, or all or substantially all the Equity Interests (other than directors qualifying shares) in, or merger, consolidation or amalgamation with, a person or division or line of business of a person (or any subsequent investment made in a person, division or line of business previously acquired in a Permitted Business Acquisition), if immediately after giving effect thereto (or in the case of clauses (i), (iii), (vi) and (vii), if an LCT Election is made, as of the applicable LCT Test Date): (i) no Event of Default shall have occurred and be continuing or would result therefrom; (ii)all transactions related thereto shall be consummated in accordance with applicable laws; (iii)with respect to any such acquisition or investment with a fair market value (as determined in good faith by the Borrower) in excess of $20.0million, after giving effect to such acquisition or investment and any related transactions, the Borrower shall be in Pro Forma Compliance; (iv)any acquired or newly formed Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by Section6.01; (v) to the extent required by Section5.10, any person acquired in such acquisition, if acquired by a Loan Party, shall be merged into a Loan Party or become, following the consummation of such acquisition in accordance with Section5.10, a Loan Party; (vi)the aggregate amount of such acquisitions and investments in assets that are not owned by the Loan Parties or in Equity Interests in persons that are not Loan Parties or do not become Loan Parties following the consummation of such acquisition shall not in the aggregate exceed the greater of (x) $100.0million and (y) 0.25 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and (vii)if the date of the consummation of such acquisition shall occur during a Covenant Suspension Period, the sum of (1)the aggregate Available Unused Commitments under the Revolving Facilities plus (2)all Unrestricted Cash and Permitted Investments of the Borrower and the Subsidiaries on such date shall not be less than $250.0million; provided that this clause (vii)shall not apply to any acquisition consummated pursuant to binding commitments in existence at or prior to the date on which the relevant Covenant Suspension Period began."
"Permitted Holder shall mean each of (i)the Sponsors, (ii)the Management Group, (iii)CEC, (iv) any Person that has no material assets other than the capital stock of the Borrower or other Permitted Holders and that, directly or indirectly, holds or acquires beneficial ownership of 100% on a fully diluted basis of the voting Equity Interests in the Borrower, and of which no other Person or group (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Closing Date), other than any of the other Permitted Holders specified in clauses (i), (ii), (iii) and (iv), beneficially owns more than 50% (or, following a Qualified IPO, the greater of 35% and the percentage beneficially owned by the Permitted Holders specified in clauses (i), (ii), (iii) and (iv)) on a fully diluted basis of the voting Equity Interests thereof, and (v)any group (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Closing Date) the members of which include any of the other Permitted Holders specified in clauses (i), (ii), (iii) and (iv)above and that, directly or indirectly, hold or acquire"
"beneficial ownership of the voting Equity Interests in the Borrower (a Permitted Holder Group), so long as (1)each member of the Permitted Holder Group has voting rights proportional to the percentage of ownership interests held or acquired by such member and (2)no Person or other group (other than the other Permitted Holders specified in clauses (i), (ii), (iii) and (iv)above) beneficially owns more than 50% (or, following a Qualified IPO, the greater of 35% and the percentage beneficially owned by the Permitted Holders specified in clauses (i), (ii), (iii) and (iv)) on a fully diluted basis of the voting Equity Interests held by the Permitted Holder Group."
"(d) commercial paper, maturing not more than one year after the date of acquisition, issued by a corporation (other than an Affiliate of the Borrower) organized and in existence under the laws of the United States of America or any foreign country recognized by the United States of America with a rating at the time as of which any investment therein is made of P-1 (or higher) according to Moodys, or A-1 (or higher) according to S&P (or such similar equivalent rating or higher by at least one nationally recognized statistical rating organization (as defined in Rule436 under the Securities Act));"
"(e) securities with maturities of two years or less from the date of acquisition issued or fully guaranteed by any State, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least A by S&P or A by Moodys (or such similar equivalent rating or higher by at least one nationally recognized statistical rating organization (as defined in Rule436 under the Securities Act));"
(i) instruments equivalent to those referred to in clauses (a)through (h) above denominated in any foreign currency comparable in credit quality and tenor to those referred to above and commonly used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by any Subsidiary organized in such jurisdiction.
"Permitted Loan Purchase Assignment and Acceptance shall mean an assignment and acceptance entered into by a Lender as an Assignor and the Borrower as an Assignee, and accepted by the Administrative Agent, in the form of Exhibit E or such other form as shall be approved by the Administrative Agent and the Borrower (such approval not to be unreasonably withheld or delayed)."
"Project shall mean (i)any and all buildings, structures, fixtures, construction, development and other improvements of any nature to be constructed, added to, or made on, under or about any Real Property (exclusive of any personal property) with respect to which the cost of such construction, additions or development is at least equal to $25.0million and (ii)any planning processes or preparatory steps undertaken to implement or further any such construction, additions or developments contemplated by the foregoing clause (i)of this definition (including, without limitation, (a)the combination of two or more individual land parcels into one parcel, (b)the separation or division of one or more individual land parcels into two or more parcels, (c)the re-zoning of parcels, and (d)demolition work on parcels)."
"Project Notice shall mean a notice delivered by a Responsible Officer of the Borrower pursuant to Section5.11(a) identifying the applicable Mortgaged Property constituting Undeveloped Land, providing a reasonable description of the applicable Project that the Borrower anticipates in good faith will be undertaken with respect to such Undeveloped Land and identifying the Project Financing to be entered into in connection with the financing of such Project."
"Qualified Non-Recourse Subsidiary shall mean (i)a Subsidiary that is not a Subsidiary Loan Party and that is formed or created after the Closing Date in order to finance the acquisition, lease, construction, repair, replacement or improvement of any new property 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 (directly or through one of its Subsidiaries) that secures Qualified Non-Recourse Debt incurred in respect of such property and (ii)any Subsidiary of a Qualified Non-Recourse Subsidiary."
"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 Loan Party, 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."
"Receivables Assets shall mean any of the following assets (or interests therein) from time to time originated, acquired or otherwise owned by the Borrower or any Subsidiary or in which the Borrower or any Subsidiary has any rights or interests, in each case, without regard to where such assets or interests are located: (a)accounts receivable (including any bills of exchange) and related assets and property, (b)franchise fees, royalties and other similar payments made related to the use of trade names and other Intellectual Property Rights, business support, training and other services, (c)revenues related to distribution and merchandising of the products of the Borrower and its Subsidiaries, (d)rents, real estate taxes and other non- royalty amounts due from franchisees, (e)Intellectual Property Rights relating to the generation of any of the types of assets listed in this definition, (f)parcels of or interests in real property, together with all easements, hereditaments and appurtenances thereto, all improvements and appurtenant fixtures and equipment, incidental to the ownership, lease or operation thereof, (g)any Equity Interests in any Special Purpose Receivables Subsidiary or any Subsidiary of a Special Purpose Receivables Subsidiary and any rights under any limited liability company agreement, trust agreement, shareholders agreement, organization or formation documents or other agreement entered into in furtherance of the organization of such entity, (h)any equipment, contractual rights with unaffiliated third parties, website domains and associated property and rights necessary for a Special Purpose Receivables Subsidiary to operate in accordance with its stated purposes; (i)any rights and obligations associated with gift card or similar programs, and (j)other assets and property (or proceeds of such assets or property) to the extent customarily included in securitization transactions of the relevant type in the applicable jurisdictions (as determined by the Borrower in good faith)."
"Replacement Revolving Credit Percentage means, as to any Replacement Revolving Lender at any time under any Replacement Revolving Facility, the percentage which such Lenders Replacement Revolving Facility Commitment under such Replacement Revolving Facility then constitutes of the aggregate Replacement Revolving Facility Commitments under such Replacement Revolving Facility (or, at any time after such Replacement Revolving Facility Commitments shall have expired or terminated, the percentage which the aggregate amount of such Lenders Replacement Revolving Facility Credit Exposure then outstanding pursuant to such Replacement Revolving Facility constitutes of the amount of the aggregate Replacement Revolving Facility Credit Exposure then outstanding pursuant to such Replacement Revolving Facility)."
"Required Lenders shall mean, at any time, Lenders having Term Loans and Commitments (and, if the Revolving Facility Commitments under any Revolving Facility have been terminated, Revolving Facility Credit Exposures under such Revolving Facility) that, taken together, represent more than 50% of the sum of all Term Loans and Commitments (and, if the Revolving Facility Commitments have been terminated, Revolving Facility Credit Exposures) at such time. The Loans, Commitments and Revolving Facility Credit Exposures of any Defaulting Lender shall be disregarded in determining Required Lenders at any time. The portion of Term Loans held by Debt Fund Affiliate Lenders in the aggregate in excess of 49.9% of the Required Amount of Loans shall be disregarded in determining Required Lenders at any time. For purposes of the foregoing, Required Amount of Loans shall mean, at any time, the amount of Loans required to be held by any particular group of Lenders in order for such group of Lenders to constitute Required Lenders without giving effect to the immediately preceding sentence."
"Sanctioned Person means, at any time, (a)any person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the United Nations Security Council, the European Union, or Her Majestys Treasury of the United Kingdom, (b)any person organized or resident in a Sanctioned Country or (c)any person controlled or 50% or more owned by any Person or Persons described in the foregoing clauses (a)or (b)."
"Sanctions means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a)the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b)the United Nations Security Council, the European Union or Her Majestys Treasury of the United Kingdom."
"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."
"Subsidiary shall mean, unless the context otherwise requires, a subsidiary of the Borrower. Notwithstanding the foregoing (and except for purposes of 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 purposes of this Agreement."
"Term B Loan Commitment shall mean, with respect to each Lender, the commitment of such Lender to make Term B Loans hereunder. The amount of each Lenders Term B Loan Commitment as of the Closing Date is set forth on Schedule 2.01. The aggregate amount of the Term B Loan Commitments as of the Closing Date is $1,235.0million."
"Termination Date shall mean the date on which (a)all Commitments shall have been terminated, (b)the principal of and interest on each Loan, all Fees and all other Loan Obligations shall have been paid in full (other than in respect of contingent indemnification and expense reimbursement claims not then due) and (c)all Letters of Credit (other than those that have been Cash Collateralized) have been cancelled or have expired and all amounts drawn or paid thereunder have been reimbursed in full."
"Testing Condition shall be satisfied at any time if as of such time (i)the sum of without duplication (x)the aggregate principal amount of outstanding Revolving Facility Loans at such time (calculated, in the case of Alternate Currency Loans, based on the Dollar Equivalent thereof) and (y)the aggregate stated amount (based, in the case of Alternate Currency Letters of Credit, on the Dollar Equivalent thereof) of Letters of Credit issued hereunder (other than (1) $70,000,000 of undrawn Letters of Credit (based, in the case of Alternate Currency Letters of Credit, on the Dollar Equivalent thereof) and (2)any Letters of Credit that have been Cash Collateralized in accordance with Section2.05(j)) exceeds (ii)an amount equal to 30% of the aggregate amount of the Revolving Facility Commitments at such time."
"Third Party Funds shall mean any segregated accounts or funds, or any portion thereof, received by Borrower or any of its Subsidiaries as agent on behalf of third parties in accordance with a written agreement that imposes a duty upon Borrower or one or more of its Subsidiaries to collect and remit those funds to such third parties."
"Total Leverage Ratio shall mean, on any date, the ratio of (a)Total 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 Total Leverage Ratio shall be determined for the relevant Test Period on a Pro Forma Basis; provided, further, however, that for purposes of calculating the Total 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 Administrative Agent); provided, further, however, that for purposes of 6.04(dd), 6.06(i) and 6.09(b)(i)(F), Total Net Debt as used in clause (a)above shall be calculated without excluding Development Expenses."
"SECTION 1.06. Timing of Payment or Performance. Except as otherwise expressly provided herein, when the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment or performance shall extend to the immediately succeeding Business Day."
"(c) In the case of a request for a Eurocurrency Revolving Facility Loan of a Classin such other currency, the Administrative Agent shall promptly notify each Revolving Facility Lender of the applicable Classthereof. Each Revolving Facility Lender of the applicable Classshall notify the Administrative Agent, not later than 11:00 a.m., Local Time 10 Business Days after receipt of such request whether it consents, in its sole discretion, to the making of Eurocurrency Revolving Facility Loans in such requested currency."
"(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 date hereof shall be redenominated into Euro at the time of such adoption (in accordance with the EMU Legislation). 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."
"SECTION 2.03. Requests for Borrowings. (a) To request a Revolving Facility Borrowing and/or a Term Borrowing, the Borrower shall notify the Administrative Agent of such request by telephone (a)in the case of a Eurocurrency Borrowing, not later than 10:00 a.m., Local Time, three Business Days before the date of any proposed Borrowing or (b)in the case of an ABR Borrowing, not later than 10:00 a.m., Local Time, on the Business Day of the proposed Borrowing; provided, that, to request a Borrowing on the Closing Date, the Borrower shall notify the Administrative Agent of such request by telephone not later than 2:00 p.m., Local Time, one Business Day prior to the Closing Date; provided further that, in the case of an Alternate Currency Borrowing denominated in Japanese Yen, the Borrower shall notify the Administrative Agent of such request not later than 10:00 a.m. Local Time four Business Days prior to the date of such proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or electronic means to the Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent and signed by a Responsible Officer of the Borrower. Each such telephonic and written Borrowing Request shall specify the following information in compliance with Section2.02:"
"(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date for such Revolving Facility, unless all the Revolving Facility Lenders under such Revolving Facility have approved such expiry date (such approval not to be unreasonably withheld or delayed) or the Borrower has agreed to Cash Collateralize such Letter of Credit prior to the Letter of Credit Expiration Date for such Revolving Facility."
"(iv) If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit under any Revolving Facility that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder (each, an Auto-Reinstatement Letter of Credit). Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter of Credit has been issued under any Revolving Facility, except as provided in the following sentence, the Revolving Facility Lenders under such Revolving Facility shall be deemed to have authorized (but may not require) the L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance with the provisions of such Letter of Credit. Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits the L/C Issuer to decline to reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving notice of such non-reinstatement within a specified number of days after such drawing (the Non-Reinstatement Deadline), the L/C Issuer shall not permit such reinstatement if it has received a notice (which may be by telephone or in writing) on or before the day that is five Business Days before the Non- Reinstatement Deadline (A)from the Administrative Agent that the Majority Lenders under the applicable Revolving Facility have elected not to permit such reinstatement or (B)from the Administrative Agent, any Revolving Facility Lender under the applicable Revolving Facility or the Borrower that one or more of the applicable conditions specified in Section4.01 is not then satisfied (treating such reinstatement as an L/C Credit Extension for purposes of this clause) and, in each case, directing the L/C Issuer not to permit such reinstatement."
"(iv) Until each Revolving Facility Lender under the applicable Revolving Facility funds its ABR Revolving Loan or L/C Advance pursuant to this Section2.05(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lenders Revolving Facility Percentage of such amount shall be solely for the account of the L/C Issuer."
"any setoff, counterclaim, recoupment, defense or other right which such Revolving Facility Lender may have against the L/C Issuer, the Borrower, any Subsidiary 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 ABR Revolving Loans pursuant to this Section2.05(c) is subject to the conditions set forth in Section4.01 (other than delivery by the Borrower of a Borrowing Request). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein."
"(ii) If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section2.05(c)(i) in connection with the issuance of any Letter of Credit under any Revolving Facility is required to be returned under any of the circumstances described in Section8.10 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Revolving Facility Lender under such Revolving Facility shall pay to the Administrative Agent for the account of the L/C Issuer its Revolving Facility Percentage under such Revolving Facility thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Revolving Facility Lender, at a rate per annum equal to the applicable Overnight Rate from time to time in effect. The obligations of the Revolving Facility Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement."
"(iii) any draft, demand, certificate or other document presented under such Letter of Credit that appears on its face to be valid proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;"
"(iv) any payment by the L/C 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 L/C 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"
"(f) Role of L/C Issuer. Each Revolving Facility Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the person executing or delivering any such document. None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable to any Lender for (i)any action taken or omitted in connection herewith at the request or with the approval of the Revolving Facility Lenders or the Majority Lenders under the Revolving Facility under which such Letter of Credit was issued, as applicable; (ii)any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii)the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Borrowers pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable or responsible for any of the matters described in clauses (i)through (v) of Section2.05(e);"
"may assume that such Lender has made such share available on such date in accordance with Section2.06(a) (or, in the case of a Borrowing of ABR Loans, that such Lender has made such share available in accordance with and at the time required by Section2.06(a)) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in Same Day Funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A)in the case of a payment to be made by such Lender, the Overnight Rate, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B)in the case of a payment to be made by the Borrower, the interest rate applicable to ABR Loans under the applicable Facility. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lenders Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent."
"(i) the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses(iii) and (iv)below shall be specified for each resulting Borrowing);"
"(b) The Borrower may at any time terminate, or from time to time reduce, the Revolving Facility Commitments of any Class; provided, that (i)each such reduction of the Revolving Facility Commitments of any Classshall be in an amount that is an integral multiple of $1.0million and not less than $5.0million (or, if less, the remaining amount of such Classof Revolving Facility Commitments) and (ii)the 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 under such Revolving Facility, the Revolving Facility Credit Exposure of such Class (excluding any Cash Collateralized Letter of Credit) would exceed the total Revolving Facility Commitments of such Class."
"(c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Revolving Facility Commitments of any Classunder clause(b) of this Section 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 Borrower pursuant to this Section shall be irrevocable; provided, that a notice of termination or reduction of the Revolving Facility Commitments of any Class"
"(c) The Administrative Agent shall maintain accounts in which it shall record (i)the amount and currency of each Loan made hereunder, the Facility and Type thereof and the Interest Period (if any) applicable thereto, (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)any amount received by the Administrative Agent hereunder for the account of the Lenders and each Lenders share thereof."
"(ii) In the event that, on or prior to the date that is six months after the Closing Date, the Borrower shall (x)make a prepayment of the Term B Loans pursuant to Section2.11(a) with the proceeds of, or any conversion of Term B Loans into, any substantially concurrent issuance of a new or replacement tranche of long-term senior secured first lien term loans that are broadly syndicated to banks and other institutional investors in financings similar to the Term B Loans the primary purpose of which is to (and which does) reduce the All-in Yield of such Term B Loans (other than, for the avoidance of doubt, with respect to securitizations) or (y)effect any amendment to this Agreement the primary purpose of which is to (and which does) reduce the All-in Yield of the Term B Loans (other than, in the case of each of clauses (x)and (y), in connection with a Qualified IPO, a Change in Control or a transformative acquisition referred to in the last sentence of this paragraph), the Borrower shall pay to the Administrative Agent, for the ratable account of each of the applicable Lenders holding Term B Loans, (A)in the case of clause (x), a prepayment premium of 1.00% of the aggregate principal amount of the Term B Loans so prepaid and (B)in the case of clause (y), a fee equal to 1.00% of the aggregate principal amount of the applicable Term B Loans for which the All-in Yield has been reduced pursuant to such amendment. Such amounts shall be due and payable on the date of such prepayment or the effective date of such amendment, as the case may be. For purposes of this Section2.11(a)(ii), a transformative acquisition is any acquisition by the Borrower or any Subsidiary that (i)is not permitted by the terms of the Loan Documents immediately prior to the consummation of such acquisition or (ii)if permitted by the terms of the Loan Documents immediately prior to the consummation of such acquisition, would not provide the Borrower and its Subsidiaries with adequate flexibility under the Loan Documents for the continuation and/or expansion of their combined operations following such consummation, as determined by the Borrower in good faith."
"(c) Subject to Section2.11(e) and (f), within five (5)Business Days after financial statements are delivered under Section5.04(a) with respect to each Excess Cash Flow Period, the Borrower shall calculate Excess Cash Flow for such Excess Cash Flow Period and shall apply an amount equal to (i)the amount by which the Required Percentage of such Excess Cash Flow exceeds $5.0million, minus to the extent not financed using the proceeds of the incurrence of funded term Indebtedness (ii)the sum of (A)the amount of any voluntary prepayments during such Excess Cash Flow"
"(e) Anything contained herein to the contrary notwithstanding, in the event the Borrower is required to make any mandatory prepayment (a Waivable Mandatory Prepayment) of the Term Loans, not less than three Business Days prior to the date (the Required Prepayment Date) on which the Borrower elects (or is otherwise required) to make such Waivable Mandatory Prepayment, the Borrower shall notify the Administrative Agent of the amount of such prepayment, and the Administrative Agent will promptly thereafter notify each Lender holding an outstanding Term Loan of the amount of such Lenders pro rata share of such Waivable Mandatory Prepayment and such Lenders option to refuse such amount. Each such Lender may exercise such option by giving written notice to the Administrative Agent of its election to do so on or before the second Business Day prior to the Required"
"Prepayment Date (it being understood that any Lender which does not notify the Administrative Agent of its election to exercise such option on or before the first Business Day prior to the Required Prepayment Date shall be deemed to have elected, as of such date, not to exercise such option). On the Required Prepayment Date, (i)the Borrower shall pay to the Administrative Agent the amount of the Waivable Mandatory Prepayment less the amount of Declined Proceeds, which amount shall be applied by the Administrative Agent to prepay the Term Loans of those Lenders that have elected to accept such Waivable Mandatory Prepayment (each, an Accepting Lender) (which prepayment shall be applied to the scheduled installments of principal of the Term Loans in the applicable Class(es) of Term Loans in accordance with paragraphs (c)and (d) of Section2.10), and (ii)the Borrower may retain a portion of the Waivable Mandatory Prepayment in an amount equal to that portion of the Waivable Mandatory Prepayment otherwise payable to those Lenders that have elected to exercise such option and decline such Waivable Mandatory Prepayment (such declined amounts, the Declined Proceeds). Such Declined Proceeds shall be retained by the Borrower and may be used for any purpose not otherwise prohibited by this Agreement."
"(g) (i) Notwithstanding anything to the contrary in Section2.11(a) or 2.18(c) (which provisions shall not be applicable to this Section2.11(g)), the Borrower shall have the right at any time and from time to time to prepay Term Loans and/or repay Revolving Facility Loans of any Class (with, in the case of Revolving Facility Loans under any Revolving Facility, a corresponding permanent reduction in the Revolving Facility Commitment of each Lender who receives a Discounted Voluntary Prepayment), to the Lenders at a discount to the par value of such Loans and on a non pro rata basis (each, a Discounted Voluntary Prepayment) pursuant to the procedures described in this Section2.11(g); provided that (A)any Discounted Voluntary Prepayment shall be offered to all Lenders with"
"which Applicable Discount shall be (A)the percentage specified by the Borrower if the Borrower has selected a single percentage pursuant to Section2.11(g)(ii) for the Discounted Voluntary Prepayment or (B)otherwise, the highest Acceptable Discount at which the Borrower can pay the Proposed Discounted Prepayment Amount in full (determined by adding the principal amounts of Offered Loans commencing with the Offered Loans with the highest Acceptable Discount); provided, however, that in the event that such Proposed Discounted Prepayment Amount cannot be repaid in full at any Acceptable Discount, the Applicable Discount shall be the lowest Acceptable Discount specified by the Lenders that is within the Discount Range. The Applicable Discount shall be applicable for all Lenders who have offered to participate in the Discounted Voluntary Prepayment and have Qualifying Loans (as defined below). Any Lender with outstanding Loans whose Lender Participation Notice is not received by the Administrative Agent by the Acceptance Date shall be deemed to have declined to accept a Discounted Voluntary Prepayment of any of its Loans at any discount to their par value within the Applicable Discount."
"(a) The Borrower agrees to pay to each Lender (other than any Defaulting Lender), through the Administrative Agent, on the last Business Day of March, June, September and December in each year, and the date on which the Revolving Facility Commitments of the applicable Classof such Lender shall be terminated as provided herein, a commitment fee in Dollars (a Commitment Fee) on the daily amount of the Revolving Facility Commitments (whether used or unused) of such Lender during the preceding quarter (or other period commencing with the Closing Date or ending with the date on which the last of the Commitments of such Lender shall be terminated) at a rate equal to the Applicable Commitment Fee for the applicable Classwith respect to such Lender. All Commitment Fees shall be computed on the basis of the actual number of days elapsed in a year of 360 days. The Commitment Fee due to each Lender shall commence to accrue on the Closing Date and shall cease to accrue on the date on which the last of the Commitments of such Lender shall be terminated as provided herein (provided that, if any Revolving Facility Loans or any L/C Obligations remain outstanding following the Revolving Facility Maturity Date or the date on which the aggregate Revolving Facility Commitments shall expire or be terminated, the Commitment Fee with respect to such Revolving Facility Loans and such L/C Obligations shall continue to accrue for so long as such Revolving Facility Loans and such L/C Obligations remain outstanding and shall be due and payable on demand)."
"such L/C Issuer or such Lenders or such L/C Issuers holding company could have achieved but for such Change in Law (taking into consideration such Lenders or such L/C Issuers policies and the policies of such Lenders or such L/C Issuers holding company with respect to capital or liquidity adequacy), then from time to time the Borrower shall pay to such Lender or such L/C Issuer, as applicable, such additional amount or amounts as will compensate such Lender or such L/C Issuer or such Lenders or such L/C Issuers holding company for any such reduction suffered."
"(c) A certificate of a Lender or an L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or L/C Issuer or its holding company, as applicable, as specified in paragraph(a) or (b)of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender or L/C Issuer, as applicable, the amount shown as due on any such certificate within 10 days after receipt thereof."
"(c) Each Loan Party shall jointly and severally indemnify the Administrative Agent and each Lender, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable by the Administrative Agent or such Lender, as applicable (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section2.17), 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 such Loan Party by a Lender, or by the Administrative Agent on its own behalf, on behalf of another Agent or on behalf of a Lender, shall be conclusive absent manifest error."
(f) Each U.S. Lender shall deliver to the Borrower and the Administrative Agent two duly completed copies of Internal Revenue Service Form W-9 (or any subsequent versions thereof or successors thereto) certifying that such U.S. Lender is exempt from U.S. federal backup withholding on or before the date such U.S. Lender becomes a party and upon the expiration of any form previously delivered by such U.S. Lender.
"(i) Each Lender shall, whenever a lapse in time or change in circumstances renders any documentation previously provided pursuant to Sections 2.17(e), (f) or (g)obsolete, expired or inaccurate in any respect, deliver promptly to the Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrower or the Administrative Agent) or promptly notify the Borrower and the Administrative Agent in writing of its legal ineligibility to do so."
"(j) If the Borrower determines that a reasonable basis exists for contesting an Indemnified Tax or Other Tax for which a Loan Party has paid additional amounts or indemnification payments, each affected Lender or the Administrative Agent, as the case may be, shall use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request in contesting such Tax; provided that nothing in this Section2.17(j) shall obligate any Lender or the Administrative Agent to take any action that such person, in its sole judgment, determines may result in a material detriment to such person. The Borrower shall indemnify and hold each Lender and the Administrative Agent harmless against any out-of-pocket expenses incurred by such person in connection with any request made by the Borrower pursuant to this Section2.17(j). Any refund received from a successful contest shall be governed by Section2.17(k)."
"(a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of drawings under Letters of Credit, or of amounts payable under Section2.15, 2.16, or 2.17, or otherwise) without condition or deduction for any defense, recoupment, set-off or counterclaim. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agents Office in Dollars (or, in the case of Alternate Currency Loans or Alternate Currency Letters of Credit, in the applicable Alternate Currency) and in Same Day Funds not later than (x)in the case of Loans or Letters of Credit denominated in Dollars or Canadian Dollars, 2:00 p.m. Local Time or (y)in the case of Loans or Letters of Credit denominated in Alternate Currencies other than Canadian Dollars, 5:00 a.m. Local Time, in each case, on the date specified herein. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to the applicable account designated to the Borrower by the Administrative Agent, except payments to be"
"made directly to the applicable L/C Issuer as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.05 shall be made directly to the persons entitled thereto. Without limiting the generality of the foregoing, the Administrative Agent may require that any payments payable in Dollars due under this Agreement be made in the United States. The Administrative Agent shall distribute any such payments received by it for the account of any other person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment."
"(d) 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 applicable L/C Issuer 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 Lenders or the applicable L/C Issuer, as applicable, the amount due. In such event, if the Borrower has not in fact made such payment, then each"
"(b) If any Lender requests compensation under Section2.15, 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 Section2.17, or if any Lender is a Defaulting Lender, or if any Lender is the subject of a Disqualification, then the Borrower may, at its option and its sole expense and effort, upon notice to such Lender and the Administrative Agent, (1)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 and obligations under this Agreement to an assignee reasonably acceptable to (i)the Administrative Agent (unless, in the case of an assignment of Term Loans, such assignee is a Lender, an Affiliate of a Lender or an Approved Fund) and (ii)if in respect of any Revolving Facility Commitment or Revolving Facility Loan, the L/C Issuer, that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment) or (2)terminate the Commitments of such Lender and prepay such Lender on a non-pro rata basis; provided, that (i)such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in L/C Obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee or the Borrower (as applicable) (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts) and (ii)in the case of any such assignment 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. Nothing in this Section2.19 shall be deemed to prejudice any rights that the Borrower may have against any Lender that is a Defaulting Lender. No action by or consent of the removed Lender shall be necessary in connection with such assignment, which shall be immediately and automatically effective upon payment of such purchase price."
"(c) If any Lender (such Lender, a Non-Consenting Lender) has failed to consent to a proposed amendment, waiver, discharge or termination which pursuant to the terms of Section9.08 requires the consent of all of the Lenders affected or all Lenders (or all Lenders of a particular Classaffected or all Lenders of a particular Class) and with respect to which the Required Lenders (or the"
"(vi) the Other Revolving Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Revolving Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Initial Revolving Loans),"
"Each of the parties 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 Section9.08(e) (including, without limitation, any amendment to Section2.10(a) as may be necessary to reflect the amortization of any such Incremental Term Loans, including in the case of any Incremental Term Loan that is intended to be fungible with any existing series of Term Loans, any customary adjustments necessary to provide for such fungibility). 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 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."
"(e) Notwithstanding anything to the contrary in this Agreement, including Section2.11(a) or Section2.18(c) (which provisions shall not be applicable to clauses (e)through (i) of this Section2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of any Classof Term Loans and/or Revolving Facility Commitments, 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 (Pro Rata Extension Offers), the Borrower is 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, in the case of an offer to the Lenders under any Classof Term Loans, that all of the Term Loans of such Classand, in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments in respect of such Revolving Facility are, in each case, 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 Borrower and any such Lender (an Extending Lender) will be established under this Agreement by implementing an Incremental Term Loan for such Lender (if such Lender is extending an existing Term Loan (such extended Term Loan, an Extended Term Loan)) or an Incremental 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))."
"(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i)except as to interest rates, fees, any other pricing terms, amortization,"
"(i) before and after giving effect to the borrowing of such Refinancing Term Loans on the Refinancing Effective Date each of the conditions set forth in Section4.01 shall be satisfied to the extent required by the relevant Incremental Assumption Agreement governing such Refinancing Term Loans (except that no Default or Event of Default pursuant to Section7.01(b), (c), (h) or (i)shall have occurred and be continuing);"
"Refinancing Term Loans to refinance and/or replace all or any portion of a Revolving Facility Commitment (regardless of whether Revolving Facility Loans are outstanding under such Revolving Facility Commitments at the time of incurrence of such Refinancing Term Loans), so long as (1)the aggregate amount of such Refinancing Term Loans does not exceed the aggregate amount of Revolving Facility Commitments terminated at the time of incurrence thereof plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith and (2)if the Revolving Facility Credit Exposure outstanding on the Refinancing Effective Date would exceed the aggregate amount of Revolving Facility Commitments outstanding in each case after giving effect to the termination of such Revolving Facility Commitments, the Borrower shall take one or more of the actions contemplated by Section2.11(d) such that such Revolving Facility Credit Exposure does not exceed such aggregate amount of Revolving Facility Commitments in effect on the Refinancing Effective Date after giving effect to the termination of such Revolving Facility Commitments (it being understood that such Refinancing Term Loans may be provided by the Lenders holding the Revolving Facility Commitments being terminated and/or by any other Person that would be a permitted Assignee hereunder)."
"(v) Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of a Defaulting Lender on account of its Loans or participations under the applicable Classof Revolving Facility Commitments (whether voluntary or mandatory, at maturity, following an Event of Default or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section9.06, 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 that Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to the L/C Issuer hereunder; third, if so determined by the Administrative Agent or requested by the L/C Issuer, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Letter of Credit; 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 non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the Lenders or the L/C Issuer as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the L/C Issuer against that Defaulting Lender as a result of that 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 Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lenders breach of its obligations under this Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which that Defaulting Lender has not fully funded its appropriate share, such payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings owed to, that Defaulting Lender. 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 Section2.22(v) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto."
(vii) Reallocation of Participations to Reduce Fronting Exposure. All or any part of such Defaulting Lenders participation in Letters of Credit shall be reallocated among the Non-Defaulting Lenders of the applicable Revolving Facility in accordance with their respective pro rata Commitments under such Revolving Facility (calculated without regard to such Defaulting Lenders Commitment) but only to the extent that (x)the conditions set forth in Section4.01 are satisfied at the time of such reallocation and (y)such reallocation does not cause the aggregate Revolving Facility Credit Exposure of
"(d) As of the Closing Date, none of the Borrower or the Subsidiaries is obligated under any right of first refusal, option or other contractual right to sell, assign or otherwise dispose of any Mortgaged Property or any interest therein, except as permitted under Section6.02 or 6.05 or as would not reasonably be expected to have a Material Adverse Effect."
"(a) Except as set forth on Schedule 3.09, there are no actions, suits or proceedings at law or in equity or by or on behalf of any Governmental Authority or in arbitration now pending, or, to the knowledge of the Borrower, threatened in writing against or affecting the Borrower or any of the Subsidiaries or any business, property or rights of any such person which would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect."
"(b) When the Collateral Agreement or IP Security Agreements (as defined in the Collateral Agreement) are properly filed in the United States Patent and Trademark Office and the United States Copyright Office, and, with respect to Collateral in which a security interest cannot be perfected by such filings, upon the proper filing of the financing statements referred to in paragraph(a) above, the Collateral Agent (for the benefit of the Secured Parties) shall have a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties thereunder in the domestic registered or pending copyrights, patents and trademarks included in the Collateral, in each case prior and superior in right to the Lien of any other person, except for Permitted Liens (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 and patents, trademark and patent applications and registered copyrights acquired by the Loan Parties after the Closing Date)."
"(b) The Perfection Certificate lists correctly in all material respects, as of the Closing Date, all Material Leased Real Property that is leased by the Loan Parties as the lessee and the addresses thereof. As of the Closing Date, the Loan Parties have in all material respects valid leases in all the Material Leased Real Property set forth as being leased by them as the lessee in the Perfection Certificate except to the extent set forth therein."
"(b) On the Closing Date, immediately after giving effect to the consummation of the Transactions, the Borrower does not intend to, and the Borrower does not believe that it or any of its subsidiaries will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing and amounts of cash to be received by it or any such subsidiary and the timing and amounts of cash to be payable on or in respect of its Indebtedness or the Indebtedness of any such subsidiary."
"SECTION 3.20. Labor Matters. Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect: (a)there are no strikes or other labor disputes pending or threatened against the Borrower or any of the Subsidiaries; (b)the hours worked and payments made to employees of the Borrower and the Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable law dealing with such matters; and (c)all payments due from the Borrower or any of the Subsidiaries or for which any claim may be made against the Borrower or any of the Subsidiaries, on account of wages and employee health and welfare insurance and other benefits have been paid or accrued as a liability on the books of the Borrower or such Subsidiary to the extent required by GAAP. Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, the consummation of the Transactions will not give rise to a right of termination or right of renegotiation on the part of any union under any material collective bargaining agreement to which the Borrower or any of the Subsidiaries (or any predecessor) is a party or by which the Borrower or any of the Subsidiaries (or any predecessor) is bound."
"SECTION 3.23. Senior Debt. The Obligations constitute Senior Debt (or the equivalent thereof) and Designated Senior Debt (or the equivalent thereof, if any) under the documentation governing any Material Indebtedness of any Loan Party permitted to be incurred hereunder constituting Indebtedness that is subordinated in right of payment to the Loan Obligations."
"(d) Except to the extent permissible for a person required to comply with Sanctions, the Borrower will not, directly or indirectly, use any proceeds of the Loans or Letters of Credit, or lend, contribute or otherwise make available such proceeds to any person for the purpose of financing activities or business of or with any person or in any country or territory that, at the time of funding or facilitation, is a Sanctioned Person or a Sanctioned Country."
"(g) Except as set forth in Schedule5.10 (which, for the avoidance of doubt, shall override the applicable clauses of the definition of Collateral and Guarantee Requirement for the purposes of this Section4.02) and subject to the grace periods and post-closing periods set forth in such definition, the Collateral and Guarantee Requirement shall be satisfied (or waived pursuant to the terms hereof) as of the Closing Date."
"(i) The Arrangers shall have received (a)audited consolidated balance sheets and related statements of income, stockholders equity and cash flows of Caesars Entertainment Operating Company, Inc. and its subsidiaries, for the two most recently completed fiscal years ended at least 90 days before the Closing Date and (b)unaudited consolidated balance sheets and related statements of income, stockholders equity and cash flows of Caesars Entertainment Operating Company, Inc. and its subsidiaries, for each subsequent fiscal quarter ended at least 45 days before the Closing Date (other than any fiscal fourth quarter) after the most recent fiscal period for which audited financial statements have been provided pursuant to clause (a)hereof, in each case prepared in accordance with GAAP in all material respects (provided, that notwithstanding the foregoing, the unaudited consolidated financial statements in the form of, and containing information similar to, those available in respect of the fiscal quarters ended March31, 2016, June30, 2016 and September30, 2016 at http://investor.caesars.com/ceoc-financials.cfm on the date of the Commitment Letter shall be deemed to satisfy the requirements of this clause (b)). Caesars Entertainment Operating Company, Inc.s public filings with the Securities and Exchange Commission of any required audited financial statements on Form 10-K or required unaudited financial statements on Form 10-Q, in each case, will satisfy the requirements under clauses (a)or (b) of this Section4.01(i)."
"(j) The Arrangers shall have received a pro forma consolidated balance sheet and a related pro forma consolidated statement of income of CEC and its subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days before the Closing Date, or, if the most recently completed fiscal period is the end of a fiscal year, ended at least 90 days before the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other statement of income), which need not be prepared in compliance with Regulations S-X of the Securities Act, nor include adjustments for fresh start accounting or purchase accounting (including adjustments of the type contemplated by Financial Accounting Standards Board Accounting Standards Codification 805, Business Combinations (formerly SFAS 141R))."
"(k) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, neither the Borrower nor any of the Subsidiaries shall have any third party Indebtedness of the type described in clause (a)of the definition thereof other than (i)the Loans and other extensions of credit under this Agreement, (ii)Indebtedness of Foreign Subsidiaries, (iii)Indebtedness that is contemplated by, or permitted to remain outstanding pursuant to the Plan of Reorganization and (iv)other Indebtedness incurred in the ordinary course of business of the Borrower and its Subsidiaries for capital expenditures and working capital purposes."
"(a) Do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence, except, in the case of a Subsidiary of the Borrower, where the failure to do so would not reasonably be expected to have a Material Adverse Effect, and except as otherwise permitted under Section6.05; provided that the Borrower may liquidate or dissolve one or more Subsidiaries if the assets of such Subsidiaries (to the extent they exceed estimated liabilities) are acquired by the Borrower or a Wholly-Owned Subsidiary of the Borrower in such liquidation or dissolution, except that the Borrower and Subsidiary Loan Parties may not be liquidated into Subsidiaries that are not Loan Parties and Domestic Subsidiaries may not be liquidated into Foreign Subsidiaries (except in each case as otherwise permitted under Section6.05)."
"(b) With respect to any Mortgaged Properties, if at any time the area in which the Premises (as defined in the Mortgages) are located is designated a flood hazard area in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency) the Borrower and the Subsidiaries shall obtain flood insurance to the extent required to comply with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as it may be amended from time to time."
"(e) within 105 days after the beginning of each fiscal year (or such later date as the Administrative Agent may agree), a reasonably detailed consolidated annual budget for such fiscal year (including a projected consolidated balance sheet of the Borrower and its consolidated subsidiaries as of the end of the following fiscal year, and the related consolidated statements of"
"projected cash flow and projected income), including a description of underlying assumptions with respect thereto (collectively, the Budget), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that, the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof;"
"(i) no later than ten (10)Business Days after the delivery of the financial statements required pursuant to clauses (a)and (b) of this Section5.04, commencing with the financial statements for the first full fiscal period ending after the Closing Date, upon request of the Administrative Agent, the Borrower shall hold a customary conference call for Lenders; provided, that if CEC hosts a conference call to which the Lenders have access, such conference call will satisfy the requirements of this Section5.04(i)."
"(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 (including any action, suit or proceeding by or subject to decision by any Gaming Authority) or in arbitration, against the 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;"
"SECTION 5.09. Compliance with Environmental Laws. Comply, and make reasonable efforts to cause all lessees and other persons occupying its properties to comply, with all Environmental Laws applicable to its operations and properties; and obtain and renew all authorizations and permits required pursuant to Environmental Law for its operations and properties, in each case in accordance with Environmental Laws, except, in each case with respect to this Section5.09, to the extent the failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect."
"(a) Releases of Mortgaged Property. In the event that the Borrower delivers a Project Notice to the Administrative Agent with respect to all or any portion of a Mortgaged Property or Mortgaged Properties constituting Undeveloped Land identifying the applicable Mortgaged Property or Properties, providing a reasonable description of the Project that the Borrower anticipates in good faith to be undertaken with respect to such Mortgaged Property or Properties constituting Undeveloped Land and identifying the Project Financing to be entered into in connection with the financing of such Project not in violation of this Agreement, then, if (x)the terms of such Project Financing require the release of the Mortgage securing the Obligations and (y)in the case of Undeveloped Land acquired after the Closing Date, the Borrower is in Pro Forma Compliance after giving effect to such Project Financing, on the later of the date that is ten (10)Business Days following the date of the delivery of the Project Notice to the"
"each case subject to Section5.10(g). Unless otherwise waived by the Collateral Agent, with respect to each such Additional Mortgage, the Borrower shall deliver to the Collateral Agent contemporaneously therewith a title insurance policy and a survey and otherwise comply with the Collateral and Guarantee Requirements applicable to Mortgages and Mortgaged Property."
"(a) (i) Indebtedness existing or committed on the Closing Date (provided, that any Indebtedness that is in excess of $5.0million individually is set forth on Schedule6.01) and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (or in the case of a letter of credit, any replacement, renewal or extension of such letter of credit) (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary) and (ii)intercompany Indebtedness existing on the Closing Date and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i)all such Indebtedness, if owed to a Loan Party, shall be evidenced by the Global Intercompany Note or other promissory note and shall be subject to a first priority Lien pursuant to the applicable Security Document and (ii)any Indebtedness of a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Loan Obligations under this Agreement on subordination terms as described in the Global Intercompany Note or on other subordination terms reasonably satisfactory to the Administrative Agent and the Borrower;"
"(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that (i)all such Indebtedness, if owed to a Loan Party, shall be evidenced by the Global Intercompany Note or other promissory note and shall be subject to a first priority Lien pursuant to the applicable Security Document and (ii)other than in the case of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries, (x)Indebtedness of any Subsidiary that is not a Loan Party owing to any Loan Parties shall be subject to Section6.04(b) or (gg) and (y)Indebtedness of any Loan Party to any Subsidiary that is not a Loan Party (the Subordinated Intercompany Debt) shall be subordinated to the Loan Obligations under this Agreement on subordination terms as described in the Global Intercompany Note or on other subordination terms reasonably satisfactory to the Administrative Agent and the Borrower;"
"incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is either (I)not greater than 2.50 to 1.00 or (II)no greater than the Senior Secured Leverage Ratio immediately prior to such acquisition, merger, consolidation or amalgamation, (C)in the case of any such Indebtedness secured by Liens on Collateral that are junior in right of security to the Liens securing the Obligations, the Total Secured Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation or amalgamation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is either (I)not greater than 2.75 to 1.00 or (II)no greater than the Total Secured Leverage Ratio immediately prior to such acquisition, merger, consolidation or amalgamation, (D)in the case of any other such Indebtedness, the Fixed Charge Coverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation or amalgamation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is either (I)not less than 2.00 to 1.00 or (II)no less than the Fixed Charge Coverage Ratio immediately prior to such acquisition, merger, consolidation or amalgamation and (E)the aggregate outstanding principal amount of Indebtedness incurred by Subsidiaries that are not Loan Parties under this clause (h), together with the aggregate outstanding principal amount of Indebtedness incurred by Subsidiaries that are not Loan Parties pursuant to Section6.01(r), shall not 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; provided, further, that the incurrence (but not assumption) of any Indebtedness for borrowed money pursuant to this clause (h)(i) incurred in contemplation of such acquisition, merger, consolidation or amalgamation shall be subject to the last paragraph of this Section6.01 and the incurrence (but not assumption) of any such Indebtedness that is a term loan secured by a Lien on the Collateral that is pari passu in right of security with the Liens securing the Obligations shall be subject to the requirements of Section2.21(b)(viii); and (ii)any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;"
"(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including earn outs), in each case, incurred or assumed in connection with the Transactions and any Permitted Business Acquisition, other Investments or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement;"
"(x) Indebtedness of, or incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures not in excess, at any one time outstanding, 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, and any Permitted Refinancing Indebtedness in respect thereof;"
"(aa) Indebtedness consisting of Indebtedness issued by the Borrower or any Subsidiary to current or former officers, directors and employees thereof or of any Parent Entity, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests in the Borrower or any Parent Entity permitted by Section6.06;"
"Acquisition or any other acquisition or Investment that is permitted by this Agreement, no Event of Default under Section7.01(b), (c), (h) (with respect to the Borrower and the Master Lease Tenants) or (i) (with respect to the Borrower and the Master Lease Tenants) shall have occurred and be continuing or would result therefrom); provided that a certificate of a Financial Officer of the Borrower delivered to Administrative Agent in good faith at least three Business Days (or such shorter period as the Administrative Agent may reasonably agree) 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 foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement and in the case of any such Indebtedness, no Subsidiary of the Borrower is a borrower or guarantor other than any Subsidiary Loan Party which shall have previously or substantially concurrently Guaranteed the Obligations;"
"With respect to any Indebtedness for borrowed money incurred (other than assumed Indebtedness) under Section6.01(h)(i) (solely to the extent set forth therein) and 6.01(r)(i), (A) in the form of term Indebtedness, (1)the stated maturity date of any such Indebtedness shall be no earlier than the Term B Facility Maturity Date as in effect at the time such Indebtedness is incurred and (2)the Weighted Average Life to Maturity of such Indebtedness shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans in effect at the time such Indebtedness is incurred, (B)in the form of revolving Indebtedness, (1)the stated maturity date of any such Indebtedness shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans as in effect at the time such Indebtedness is incurred and (2)the Weighted Average Life to Maturity of such Indebtedness shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Revolving Loans in effect at the time such Indebtedness is incurred and (C)such Indebtedness does not have mandatory redemption features (other than customary asset sale, insurance, condemnation and insurance proceeds events, issuance of indebtedness proceeds events, change of control offers or events of default or, if term loans, excess cash flow prepayments applicable to periods before the Term B Facility Maturity Date as in effect at the time such Indebtedness is incurred) that could result in redemptions of such Indebtedness prior to the Term B Facility Maturity Date as in effect at the time such Indebtedness in incurred."
"(b) any Lien created under the Loan Documents (including, without limitation, Liens created under the Security Documents securing obligations in respect of Secured Swap Agreements, Secured Cash Management Agreements and the Overdraft Line secured pursuant to the Security Documents) or permitted in respect of any Mortgaged Property by the terms of the applicable Mortgage;"
"(c) any Lien on any property or asset of the Borrower or any Subsidiary securing Indebtedness or Permitted Refinancing Indebtedness permitted by Section6.01(h); provided, that (i)in the case of Liens that do not extend to the Collateral, such Lien does not apply to any other property or assets of the Borrower or any of the Subsidiaries not securing such Indebtedness at the date of the acquisition of such property or asset and accessions and additions thereto and proceeds and products thereof (other than after-acquired property required to be subjected to such Lien pursuant to the terms of such Indebtedness (and refinancings thereof)), (ii)in the case of Liens on the Collateral that are (or are intended to be) junior in priority to the Liens securing the Term B Loans, such Liens shall be subject to a Permitted Junior Intercreditor Agreement and (iii)in the case of Liens on the Collateral that are (or are intended to be) pari passu with the Liens on the Collateral securing the Term B Loans, (x)such Liens shall be subject to a Permitted Pari Passu Intercreditor Agreement and (y)any Indebtedness for borrowed money in the form of term loans secured by such Liens shall be subject to the requirements of Section2.21(b)(viii);"
"(ll) (i) Liens pursuant to the Master Leases and any Additional Lease, which Liens are limited to the leased property under the applicable Master Lease or Additional Lease and the Master Lease Collateral related to such Master Lease or Additional Lease that is an Additional Master Lease and which Lien is granted to the applicable Master Lease Landlord or landlord under such Additional Lease for the purpose of securing the obligations of the applicable Master Lease Tenant or tenant under such Additional Lease to the applicable Master Lease Landlord or landlord under such Additional Lease and (ii)Liens on cash and Cash Equivalents (and on the related escrow accounts or similar accounts, if any) required to be paid to the lessors (or lenders to such lessors) under such leases or maintained in an escrow account or similar account pending application of such proceeds in accordance with the applicable Master Lease or Additional Lease; provided, that under the terms of the documents governing such Lien, the applicable Master Lease Landlord or landlord under the applicable Additional Lease may not foreclose on any of the related Master Lease Collateral unless the applicable Master Lease or Additional Lease is being terminated with respect to the applicable facility and the Agents, the Lenders or their designee or assignee have not entered into a new lease in accordance with the terms of the applicable Master Lease or Additional Lease;"
"(n) Investments of a Subsidiary acquired after the Closing Date or of an entity merged into the Borrower or merged into or consolidated with a Subsidiary after the Closing Date, in each case, (i)to the extent such acquisition, merger or consolidation was or is permitted under this Section6.04 or Section6.05 and (ii)to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, consolidation or amalgamation and were in existence on the date of such acquisition, merger, consolidation or amalgamation;"
"(s) Investments in Unrestricted Subsidiaries in an aggregate amount outstanding not to exceed the greater of $60.0million and 0.15 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 (s)), as valued at the fair market value (as determined in good faith by the Borrower) of such Investment at the time such Investment is made; provided that if any Investment pursuant to this clause (s)is made in any Unrestricted Subsidiary and such Unrestricted Subsidiary is redesignated a Subsidiary of the Borrower after such date, such redesignation shall increase the amount available pursuant to this clause (s)by an amount equal to the fair market value (as determined in good faith by the Borrower) of the Borrowers Investments in such Subsidiary previously made in reliance on this clause (s)at the time of such redesignation;"
"For purposes of determining compliance with this covenant, (A)an Investment need not be permitted solely by reference to one category of permitted Investments (or portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B)in the event that an Investment (or any portion thereof) meets the criteria of one or more of the categories of permitted Investments (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 Investment (or any portion thereof) in any manner that complies with this covenant and at the time of classification or reclassification will be entitled to only include the amount and type of such Investment (or any portion thereof) in one of the categories of permitted Investments (or any portion thereof) described in the above clauses."
"(m) any exchange of assets for other assets used or useful in a Similar Business that are of comparable or greater value (other than any such exchanges by the Borrower or Subsidiary with a Person that is an Affiliate of the Borrower or Subsidiary); provided, that (i)at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, and (ii)in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $10.0million, such exchange shall have been approved by at least a majority of the Board of Directors of the Borrower; provided, further, that (A)no Event of Default exists or would result therefrom and (B)with respect to any such exchange with aggregate gross consideration that has a fair market value (as determined in good faith by the Borrower) in excess of $10.0million, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance;"
"(p) (i) the lease, sublease or license of any portion of any project to persons who, either directly or through Affiliates of such persons, intend to operate or manage nightclubs, bars, restaurants, recreation areas, spas, pools, exercise or gym facilities, or entertainment or retail venues or similar or related establishments or facilities within such project and (ii)the grant of declarations of covenants, conditions and restrictions and/or easements with respect to common area spaces and similar instruments benefiting such tenants of such leases, subleases and licenses"
"generally and/or entered into connection with any project (collectively, the Venue Easements, and together with any such leases, subleases or licenses, collectively the Venue Documents); provided that (A)no Event of Default shall exist and be continuing at the time any such Venue Document is entered into or would occur as a result of entering into such Venue Document, (B)the Loan Parties shall be required to maintain control (which may be through required contractual standards) over the primary aesthetics and standards of service and quality of the business being operated or conducted in connection with any such leased, subleased or licensed space and (C)no Venue Document or operations conducted pursuant thereto would reasonably be expected to materially interfere with, or materially impair or detract from, the operations of the Borrower and the Subsidiaries; provided further that upon request by the Borrower, the Collateral Agent on behalf of the Secured Parties shall provide the tenant, subtenant or licensee under any Venue Document with a subordination, non-disturbance and attornment agreement substantially in the form of Exhibit K or in such other form as is reasonably satisfactory to the Collateral Agent and the applicable Loan Party;"
"(viii) payments by the Borrower or any of the Subsidiaries of the Borrower to any Section6.07 Affiliate made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by the majority of the Board of Directors of the Borrower, or a majority of the Disinterested Directors of the Borrower, in good faith;"
"(ii) Amend or modify, or permit the amendment or modification of, any provision of Junior Financing that constitutes Material Indebtedness or any agreement, document or instrument evidencing or relating thereto, other than amendments or modifications that (A)are not materially adverse to Lenders when taken as a whole (as determined in good faith by the Borrower) and that do not affect the subordination or payment provisions thereof (if any) in a manner adverse to the Lenders when taken as a whole (as determined in good faith by the Borrower) or (B)otherwise comply with the definition of Permitted Refinancing Indebtedness or, after giving effect to such amendment or modification, result in Indebtedness that would have been permitted to be incurred under Section6.01 if originally incurred on such terms."
"SECTION 6.11. Financial Performance Covenant. With respect to the Revolving Facility only, permit the Senior Secured Leverage Ratio on the last day of any fiscal quarter (beginning with the fiscal quarter ended on the last day of the first full fiscal quarter after the Closing Date, but excluding any fiscal quarter the last day of which occurs during a Covenant Suspension Period), solely to the extent that on such date the Testing Condition is satisfied, to exceed 3.50 to 1.00."
"(a) any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document or any certificate or document delivered pursuant hereto or thereto shall prove to have been false or misleading in any material respect when so made or deemed made; provided, that the failure of any representation or warranty made or deemed made by any Loan Party (other than the representations and warranties referred to in clause(i)of Section4.01(b)) to be true and correct in any material respect on the Closing Date will not constitute an Event of Default hereunder;"
"(c) default shall be made in the payment of any interest on any Loan or the reimbursement with respect to any L/C Obligation or in the payment of any Fee or any other amount (other than an amount referred to in clause (b)above) due under any Loan Document, when and as the same shall become due and payable, and such default shall continue unremedied for a period of five Business Days;"
"(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i)relief in respect of the Borrower or any Material Subsidiary, or of a substantial part of the property or assets of the Borrower or any Material Subsidiary, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii)the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a substantial part of the property or assets of the Borrower or any Material Subsidiary or (iii)the winding-up or liquidation of the Borrower or any Material Subsidiary (other than as permitted hereunder); and such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;"
"(j) the failure by the Borrower or any Material Subsidiary to pay one or more final judgments aggregating in excess of $50.0million (to the extent not covered by insurance or indemnities), which judgments are not discharged or effectively waived or stayed for a period of 45 consecutive days, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of the Borrower or any Material Subsidiary to enforce any such judgment;"
"(k) (i) a trustee shall be appointed by a United States district court to administer any Plan, (ii)an ERISA Event or ERISA Events shall have occurred with respect to any Plan or Multiemployer Plan, (iii)the PBGC shall institute proceedings (including giving notice of intent thereof) to terminate any Plan or Plans, (iv)the Borrower or any Subsidiary or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA or (v)the Borrower or any Subsidiary shall engage in any prohibited transaction (as defined in Section406 of ERISA or Section4975 of the Code) involving any Plan that would subject the Borrower or any Subsidiary to tax; and in each case in clauses(i) through (v)above, such event or condition, together with all other such events or conditions, if any, would reasonably be expected to have a Material Adverse Effect;"
"(a) Each Lender (in its capacity as a Lender and on behalf of itself and its Affiliates as potential counterparties to Secured Cash Management Agreements and Secured Swap Agreements) and each L/C Issuer (in such capacity and on behalf of itself and its Affiliates as potential counterparties to Secured Cash Management Agreements and Secured Swap Agreements) hereby irrevocably designates and appoints the Administrative Agent as the agent of such Lender under this Agreement and the other Loan Documents and 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. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent shall not 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."
"(b) The Administrative Agent, each Lender (in its capacity as a Lender and on behalf of itself and its Affiliates as potential counterparties to Secured Cash Management Agreements and Secured Swap Agreements) and each L/C Issuer (in such capacity and on behalf of itself and its Affiliates as potential counterparties to Secured Cash Management Agreements and Secured Swap Agreements) hereby irrevocably designate and appoint the Collateral Agent as the agent with respect to the Collateral, including to hold and enforce the same, and the Administrative Agent, each Lender and each L/C Issuer 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, the Collateral Agent shall not"
"SECTION 8.07. Indemnification. The Lenders agree to indemnify the Administrative Agent and the Collateral Agent, each in its capacity as such (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their respective portions of the total Term Loans and Revolving Facility Commitments (or, if the Revolving Facility Commitments shall have terminated, in accordance the Revolving Facility Commitments in effect immediately prior to such termination) held on the date on which indemnification is sought, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (including at any time following the payment of the Loans) be imposed on, incurred by or asserted against the Administrative Agent or the Collateral Agent in any way relating to or arising out of the Commitments, this Agreement, any of the other Loan Documents, or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Administrative Agent or the Collateral Agent under or in connection with any of the foregoing, provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agents or the Collateral Agents gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction. The agreements in this Section8.07 shall survive the payment of the Loans and all other amounts payable hereunder."
"(i) 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 the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer and the Administrative Agent under Article II or Section9.05) allowed in such judicial proceeding; and"
"Guarantee, it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative Agent, on behalf of the Secured Parties in accordance with the terms hereof and all powers, rights and remedies under the Security Documents may be exercised solely by the Collateral Agent."
"SECTION 8.14. Intercreditor Agreements, Master Lease Intercreditor Agreements and Collateral Matters. The Administrative Agent and Collateral Agent shall be authorized from time to time, without the consent of any Lender, to execute or to enter into amendments of, and amendments and restatements of, the Intercreditor Agreements permitted or required hereunder, in each case in order to effect the pari passu treatment or the subordination of and to provide for certain additional rights, obligations and limitations in respect of, any Liens required or permitted by the terms of this Agreement to be Liens pari passu with or junior to the Obligations, that are, in each case, incurred in accordance with Article VI of this Agreement, and to establish certain relative rights as between the holders of the Obligations and the holders of the Indebtedness secured by such Liens. The Administrative Agent and Collateral Agent shall be authorized, without the consent of any Lender, to execute each of the Master Lease Intercreditor Agreements and to enter into amendments of, and amendments and restatements of, the Master Lease Intercreditor Agreements in order to add or remove parties thereto or properties covered thereby, to cure any ambiguity, omission, defect or inconsistency or to make other modifications that are not materially adverse to the Lenders."
"(e) Documents required to be delivered pursuant to Section5.04 (including any such documents that are included in materials otherwise filed with the SEC) may be delivered electronically (including as set forth in Section9.17) and if so delivered, shall be deemed to have been delivered on the date (i)on which the Borrower posts such documents, or provides a link thereto on the Borrowers"
"SECTION 9.02. Survival of Agreement. All covenants, agreements, representations and warranties made by the Loan Parties herein, in the other Loan Documents and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the Lenders and each L/C Issuer and shall survive the making by the Lenders of the Loans, the execution and delivery of the Loan Documents and the issuance of the Letters of Credit, regardless of any investigation made by such persons or on their behalf, and shall continue in full force and effect until the Termination Date. Without prejudice to the survival of any other agreements contained herein, indemnification and reimbursement obligations contained herein (including pursuant to Sections 2.15, 2.17, 8.07 and 9.05) shall survive the Termination Date."
"(A) the Borrower, which consent, with respect to the assignment of a Term B Loan, will be deemed to have been given if the Borrower has not responded within ten (10)Business Days after the delivery of any request for such consent; provided, that no consent of the Borrower shall be required (i)for an assignment of a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund, (ii)for an assignment of a Revolving Facility Commitment to a Revolving Facility Lender, an Affiliate of a Revolving Facility Lender or an Approved Fund with respect to a Revolving Facility Lender, (iii)in the case of assignments during the primary syndication of the Commitments and Loans, for an assignment to persons identified to and agreed by the Borrower in writing prior to the Closing Date or (iv)if an Event of Default under Section7.01(b), (c), (h) or (i)has occurred and is continuing, any other person;"
"(iii) Each assigning Lender shall, in connection with any potential assignment, provide to Borrower a copy of its request (including the name of the prospective assignee(s)) concurrently with its delivery of the same request to the Administrative Agent irrespective of whether or not an Event of Default has occurred and is continuing. Subject to acceptance and recording thereof pursuant to paragraph(b)(v) below, from and after the effective date specified in each Assignment and Acceptance the Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lenders rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.05). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section9.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with clause(c) of this Section9.04."
"(i) Notwithstanding anything to the contrary in Section2.08, Section2.11(a) or Section2.18(c) (which provisions shall not be applicable to clauses (i)or (j) of this Section9.04), the Borrower or its Subsidiaries may purchase by way of assignment and become an Assignee with respect to Term Loans and/or Revolving Facility Loans (other than any such Loans held by an Affiliate Lender) at any time and from time to time from Lenders in accordance with Section9.04(b) hereof or reduce the aggregate amount of any Revolving Facility Commitment of a Lender that has agreed to such reduction (Permitted Loan Purchases); provided that (A)no Event of Default has occurred and is continuing or would result from the Permitted Loan Purchase, (B)no Permitted Loan Purchase shall be made from the proceeds of any extensions of credit under the Revolving Facility, (C)upon consummation of any such Permitted Loan Purchase, the Loans and/or Revolving Facility Commitments purchased or terminated pursuant thereto shall be deemed to be automatically and immediately cancelled and extinguished in accordance with Section9.04(j), (D) to the extent the Borrower is making a Permitted Loan Purchase of Revolving Facility Loans or Revolving Facility Commitments, upon giving effect to such Permitted Loan Purchase, there shall be sufficient aggregate Revolving Facility Commitments among the Revolving Facility Lenders to apply to the Outstanding Amount of the L/C Obligations thereunder as of such date, unless the Borrower shall concurrently with the payment of the purchase price by the Borrower for such Revolving Facility Loans or the termination of such Revolving Facility Commitments, deposit cash collateral in an account with the Administrative Agent pursuant to Section2.05(g) in the amount of any such excess Outstanding Amount of the L/C Obligations thereunder and (E)in connection with any such Permitted Loan Purchase (other than a termination of Revolving Facility Commitments), the Borrower or its Subsidiaries and such Lender that is the assignor shall execute and deliver to the Administrative Agent a Permitted Loan Purchase Assignment and Acceptance (and for the avoidance of doubt, (x)shall make the representations and warranties set forth in the Permitted Loan Purchase Assignment and Acceptance and (y)shall not be required to execute and deliver an Assignment and Acceptance pursuant to Section9.04(b)(ii)(B))."
"(j) Each Permitted Loan Purchase shall, for purposes of this Agreement (including, without limitation, Section2.08(b)) be deemed to be an automatic and immediate cancellation and extinguishment of such Term Loans and/or Revolving Facility Loans (with a corresponding permanent reduction in Revolving Facility Commitments) or termination of the Revolving Facility Commitments, if applicable, and the Borrower shall, upon consummation of any Permitted Loan Purchase, notify the Administrative Agent that the Register be updated to record such event as if it were a prepayment of such Loans (and in the case of Revolving Facility Loans or Revolving Facility Commitment, a permanent reduction in Revolving Facility Commitments)."
"SECTION 9.06. Right of Set-off. If an Event of Default shall have occurred and be continuing, each Lender and each L/C Issuer and any Affiliate of the foregoing 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 or such L/C Issuer to or for the credit or the account of the Borrower or any Subsidiary against any of and all the obligations of the Borrower now or hereafter existing under this Agreement or any other Loan Document held by such Lender or such L/C Issuer, irrespective of whether or not such Lender or such L/C Issuer shall have made any demand under this Agreement or such other Loan Document and although the obligations may be unmatured; 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 Section2.22 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 L/C Issuer under this Section9.06 are in addition to other rights and remedies (including other rights of set-off) that such Lender or such L/C Issuer may have."
"SECTION 9.07. Governing Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (OTHER THAN AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY PRINCIPLE OF CONFLICTS OF LAW THAT COULD REQUIRE THE APPLICATION OF ANY OTHER LAW."
"(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Obligation or any Fees is due, without the prior written consent of each Lender directly adversely affected thereby (which, notwithstanding the foregoing, such consent of such Lender directly adversely affected thereby shall be the only consent required hereunder to make such modification),"
"(v) amend or modify the provisions of this Section9.08 or the definition of the terms Required Lenders, Majority Lenders, Required Revolving Facility Lenders or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (which, notwithstanding the foregoing, such consent of such Lender directly adversely affected thereby shall be the only consent required hereunder to make such modification) (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date),"
"(vii) effect any waiver, amendment or modification that by its terms adversely affects the rights in respect of payments or collateral of Lenders participating in any Facility differently from those of Lenders participating in another Facility, without the consent of the Majority Lenders participating in the adversely affected Facility (it being understood that such consent of the Majority Lenders participating in the adversely affected Facility shall be the only consent required hereunder for such waiver, amendment or modification) (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment or Commitment reduction required by Section2.11 so long as the application of any prepayment or Commitment reduction still required to be made is not changed);"
"(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (a)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 Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b)to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders, Majority Lenders and/or Required Revolving Facility Lenders, as applicable."
"(iv) subordinate any Mortgage to any easements, rights of way, covenants, conditions and restrictions and other similar rights reasonably acceptable to the Administrative Agent which are requested by the Loan Parties pursuant to the transactions contemplated by Sections 6.05(p), (q) and (r); provided that such actions shall be taken only to the extent that the material terms thereof are either substantially similar to forms of similar documents attached to the Loan Documents or are otherwise reasonably acceptable to the Administrative Agent."
"case may be, and shall be accompanied by evidence demonstrating that such transfer or prepayment is required pursuant to Gaming Laws. If reasonably requested by any disqualified holder, the Borrower will use commercially reasonable efforts to cooperate with any such holder that is seeking to appeal such determination and to afford such holder an opportunity to participate in any proceedings relating thereto. Notwithstanding anything herein to the contrary, any prepayment of a Loan shall be at a price that, unless otherwise directed by a Gaming Authority, shall be equal to the sum of the principal amount of such Loan and interest to the date such Lender or holder became a disqualified holder (plus any fees and other amounts accrued for the account of such disqualified holder to the date such Lender or holder became a disqualified holder)."
"(d) If during the existence of an Event of Default hereunder or any of the other Loan Documents it shall become necessary or, in the opinion of the Administrative Agent, advisable for an agent, supervisor, receiver or other representative of the Lenders to become licensed or found qualified under any Gaming Law as a condition to receiving the benefit of any Collateral encumbered by the Loan Documents or to otherwise enforce the rights of the Agents, Secured Parties and the Lenders under the Loan Documents, the Borrower hereby agrees to consent to the application for such license or qualification and to execute such further documents as may be required in connection with the evidencing of such consent."
"Lender under the Loan Documents, (iv)purchase any Term Loan if, immediately after giving effect to such purchase, Affiliate Lenders in the aggregate would own Term Loans with an aggregate principal amount in excess of 25% of the aggregate principal amount of all Term Loans then outstanding or (v)purchase any Revolving Facility Loans or Revolving Facility Commitments. It shall be a condition precedent to each assignment to an Affiliate Lender that such Affiliate Lender shall have (x)represented to the assigning Lender in the applicable Assignment and Acceptance, and notified the Administrative Agent, that it is (or will be, following the consummation of such assignment) an Affiliate Lender and that the aggregate amount of Term Loans held by it giving effect to such assignments shall not exceed the amount permitted by clause(iv) of the preceding sentence and (y)represented in the applicable Assignment and Acceptance that 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 Entity is at the time a public reporting company, material information that is not publicly available and that is of a type that would not reasonably be expected to be publicly available if the Borrower, CEC or a Parent Entity was a public reporting company) that (A)has not been disclosed to the assigning Lender or the Lenders generally (other than because any such Lender does not wish to receive material non-public information with respect to the Borrower or its Subsidiaries) and (B)could reasonably be expected to have a material effect upon, or otherwise be material to, the assigning Lenders decision make such assignment."
"SECTION 9.24. Acknowledgement and Consent to Bail-In of EEA Financial Institutions. 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 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:"
"(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 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"
"2 Assignee. The Assignee (a)represents and warrants that (i)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 to become a Lender under the Credit Agreement, (ii)it has reviewed the provisions contained in the Credit Agreement, including, without limitation, all of the defined terms, relevant to the requirement to be an Assignee of the Assigned Interest and become a Lender, (iii)it meets all the requirements to be an Assignee of the Assigned Interest under the Credit Agreement (subject to receipt of such consents as may be required thereunder)(iv) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (v)it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (vi)it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section5.04 thereof, 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 Assignment and Acceptance and to purchase the Assigned Interest, (vii)it has, independently and without reliance on the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Acceptance, [and] (viii)attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee[, (ix) it is (or, upon assignment of the Assigned Interest, will be) an Affiliate Lender, (x)after giving effect to assignment of the Assigned Interest, Affiliate Lenders in the aggregate will not own Term B Loans with an aggregate principal amount in excess of 25% of the aggregate principal amount of all Term B Loans then outstanding and (xi)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 Entity is a public reporting company on the Effective Date, material information that is not publicly available and that is of a type that would not reasonably be expected to be publicly available if the Borrower, CEC or a Parent Entity was a public reporting company on the Effective Date) that (A)has not been disclosed to the Assignor or the Lenders generally (other than because the Assignor or any other Lender does not wish to receive material non-public information with respect to the Borrower or its Subsidiaries) and (B)could reasonably be expected to have a material effect"
"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."
"Section2.1 Grant. To secure the full and timely payment and performance of the Obligations, Mortgagor MORTGAGES, GRANTS, PLEDGES, BARGAINS, ASSIGNS, SELLS, CONVEYS and CONFIRMS, to Mortgagee for the benefit of the Secured Parties, all of Mortgagors estate, right, title and interest in and to the Mortgaged Property, subject, however, to Permitted Liens, TO HAVE AND TO HOLD the Mortgaged Property to Mortgagee, and Mortgagor does hereby bind itself, its successors and assigns to WARRANT AND FOREVER DEFEND the title to the Mortgaged Property, subject to Permitted Liens, unto Mortgagee. Notwithstanding anything to the contrary in this Mortgage, Mortgagor shall have the right to possess and enjoy the Mortgaged Property until Mortgagee notifies Mortgagor, following the occurrence of an Event of Default, that Mortgagors right of possession has been terminated."
"Section5.4 Release of and Resort to Collateral. Mortgagee 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, Mortgagee may resort to any other security in such order and manner as Mortgagee may elect."
"Section5.5 Appearance, Waivers, Notice and Marshalling of Assets. After the occurrence and during the continuance of any Event of Default and immediately upon the commencement of any action, suit or legal proceedings to obtain judgment for the payment or performance of the Obligations or any part thereof, or of any proceedings to foreclose the Lien and security interest created and evidenced hereby or otherwise enforce the provisions hereof or of any other proceedings in aid of the enforcement hereof, Mortgagor shall enter its voluntary appearance in such action, suit or proceeding. To the fullest extent permitted by law, Mortgagor hereby irrevocably and unconditionally waives and releases (a)all benefit that might accrue to Mortgagor by virtue of any present or future statute of limitations or law or judicial decision exempting the Mortgaged Property from attachment, levy or sale on execution or providing for any stay of execution, exemption from civil process, redemption or extension of time for payment, (b)all notices of any Event of Default (except for those Events of Default of which Mortgagee is required to provide notice to Mortgagor pursuant to the terms of any applicable Loan Document) or of Mortgagees election to exercise or the actual exercise of any right, remedy or recourse provided for under any applicable Loan Documents, and (c)any right to a marshalling of assets or a sale in inverse order of alienation. Mortgagor shall not claim, take or insist on any benefit or advantage of any law now or hereafter in force providing for the valuation or appraisal of the Mortgaged Property, or any part thereof, prior to any sale or sales of the Mortgaged Property which may be made pursuant to this Mortgage, or pursuant to any decree, judgment or order of any court of competent jurisdiction. Mortgagor covenants not to hinder, delay or impede the execution of any power granted or delegated to Mortgagee by this Mortgage but to suffer and permit the execution of every such power as though no such law or laws had been made or enacted."
"(a) Upon the occurrence and during the continuance of any Event of Default, Mortgagee shall have the right, but not the obligation, to cure such Event of Default in the name and on behalf of Mortgagor. All reasonable sums advanced and expenses incurred at any time by Mortgagee under this Section5.9, or otherwise under this Mortgage or applicable law, shall bear interest from the date that such sum is advanced or expense incurred, to and including the date of reimbursement, computed at the highest rate at which interest is then computed on any portion of the Obligations and all such sums, together with such interest thereon, shall be secured by this Mortgage to the extent permitted by applicable law."
"(b) To the extent contemplated by Section9.05 of the Credit Agreement or any equivalent provision of any Other First Lien Agreement, Mortgagor 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 Mortgage or the enforcement, compromise or settlement of the Obligations or any claim under this Mortgage, and for the curing thereof, or for defending or asserting the rights and claims of Mortgagee in respect thereof, by litigation or otherwise."
"Section7.1 Security Interest. This Mortgage 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, Mortgagor grants to Mortgagee a first priority security interest in the Personalty, Fixtures, Leases, Rents, Deposit Accounts, Property Agreements, Tax Refunds, Proceeds, Insurance, Condemnation Awards, Records and all other Mortgaged Property which is personal property to secure the payment and performance of the Obligations, and agrees that Mortgagee shall have all the rights and remedies of a secured party under the UCC with respect to such property. Any notice of sale, disposition or other intended action by Mortgagee with respect to the Personalty, Fixtures, Leases, Rents, Deposit Accounts, Property Agreements, Tax Refunds, Proceeds, Insurance, Condemnation Awards and Records sent to Mortgagor at least ten (10)days prior to any action under the UCC shall constitute reasonable notice to Mortgagor. In the event of any conflict or inconsistency whatsoever between the terms of this Mortgage and the terms of the Collateral Agreement with respect to the collateral covered both therein and herein, including, but not limited to, with respect to whether any such Mortgaged Property is to be subject to a security interest or the use, maintenance or transfer of any such Mortgaged Property, the Collateral Agreement shall control, govern, and prevail, to the extent of any such conflict or inconsistency. For the avoidance of doubt, no personal property of Mortgagor that does not constitute Article 9 Collateral under and as defined in the Collateral Agreement shall be subject to any security interest of Mortgagee or any Secured Party or constitute collateral hereunder."
"Section8.4 Successors and Assigns. Whenever in this Mortgage Mortgagor or Mortgagee are referred to, such reference shall be deemed to include the permitted successors and assigns of each of them, and all covenants, promises and agreements by or on behalf of Mortgagor that are contained in this Mortgage shall bind its permitted successors and assigns and inure to the benefit of Mortgagee and its successors and assigns."
"(c) Notwithstanding anything to the contrary contained herein, Mortgagee may grant extensions of time or waivers of the requirement for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to the Mortgaged Property where it reasonably determines, in consultation with the Borrower, that perfection or obtaining of such items cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Mortgage or any other Loan Document."
"(b) Mortgagor shall automatically be released from its obligations hereunder and the Lien and security interests in the Mortgaged Property of Mortgagor 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 Mortgagor ceases to be the Borrower or a Subsidiary of the Borrower or otherwise becomes an Excluded Subsidiary or ceases to be a Loan Party, all without delivery of any instrument or performance of any act by any party, and all rights to the Mortgaged Property shall revert to Mortgagor."
"(d) Solely with respect to the Credit Agreement Secured Obligations, Mortgagor shall automatically be released from its obligations hereunder and/or the Lien and security interests in the Mortgaged Property securing the Credit Agreement Secured Obligations shall in each case be automatically released upon the occurrence of any of the circumstances set forth in Section9.18 of the Credit Agreement (or any Equivalent Provision thereof) without delivery of any instrument or performance of any act by any party, and all rights to the Mortgaged Property shall revert to Mortgagor."
"(e) Solely with respect to any Series of Other First Lien Obligations, Mortgagor shall automatically be released from its obligations hereunder and/or the Lien and security interests in the Mortgaged Property securing such Series of Other First Lien Obligations shall in each case be automatically released upon the occurrence of any of the circumstances set forth in the section governing release of collateral in the applicable Other First Lien Agreement governing such Series of Other First Lien Obligations, all without delivery of any instrument or performance of any act by any party, and all rights to the Mortgaged Property shall revert to Mortgagor."
"Section8.14 Recording Documentation to Assure Security. Mortgagor shall, forthwith after the execution and delivery hereof and thereafter, from time to time, cause this Mortgage and any financing statement, continuation statement or similar instrument relating to any of the Mortgaged Property or to any property intended to be subject to the Lien hereof or the security interests created hereby to be filed, registered and recorded in such manner and in such places as may be required by any present or future law and shall take such actions as Mortgagee shall reasonably deem necessary in order to publish notice of and fully to protect the validity and priority of the Liens, assignment, and security interests purported to be created upon the Mortgaged Property and the interest and rights of Mortgagee therein. Mortgagor shall pay or cause to be paid all taxes and fees incident to such filing, registration and recording, and all expenses incident to the preparation, execution and acknowledgment thereof, and of any instrument of further assurance, and all Federal or state stamp taxes or other taxes, duties and charges arising out of or in connection with the execution and delivery of such instruments. In the event Mortgagee advances any sums to pay the amounts set forth in the preceding sentence, such advances shall be secured by this Mortgage."
"(c) For the avoidance of doubt, the provisions of Article VIII of the Credit Agreement or any equivalent provisions of any Other First Lien Agreement shall also apply to Mortgagee acting under or in connection with this Mortgage in such capacity. No provision of this Mortgage shall require Mortgagee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers."
"This LEASEHOLD MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND LEASES AND FIXTURE FILING (this Mortgage) effective as of [] (the Effective Date), is made and entered into on [], by and from [], a [], having an address at One Caesars Palace Dr., Las Vegas, NV 89109, as mortgagor, assignor and debtor (in such capacities and together with any successors in such capacities, Mortgagor), to CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, having an address at [], as collateral agent for the Secured Parties (in such capacity, Collateral Agent), as mortgagee, assignee and secured party hereunder (in such capacities and, together with its successors and assigns in such capacities, Mortgagee)."
"(c) Operation of Mortgaged Property. Hold, lease, develop, manage, operate, carry on the business thereof or otherwise use the Mortgaged Property upon such terms and conditions as Mortgagee may deem reasonable under the circumstances (including, without limitation, making such repairs, alterations, additions and improvements and taking other actions, from time to time, as Mortgagee deems necessary or desirable), and apply all Rents and other amounts collected by Mortgagee in connection therewith in accordance with the provisions of Section5.7."
"(e) Receiver. Make application to a court of competent jurisdiction for, and obtain from such court as a matter of strict right and without notice to Mortgagor (unless such notice is required by applicable law) or regard to the adequacy of the Mortgaged Property for the repayment of the Obligations, the appointment of a receiver of the Mortgaged Property, and Mortgagor irrevocably consents to such appointment. Any such receiver shall have all the usual powers and duties of receivers in similar cases, including the full power to rent, maintain and otherwise operate the Mortgaged Property upon such terms as may be approved by the court, and shall apply such Rents in accordance with the provisions of Section5.7; provided, however, notwithstanding the appointment of any receiver, Mortgagee shall be entitled as pledgee to the possession and control of any cash, deposits or instruments at the time held by or payable or deliverable under the terms of any applicable Loan Document to Mortgagee."
"Unless otherwise required by applicable law, Mortgagee shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Mortgage. Subject to applicable law, upon any sale of Mortgaged Property by Mortgagee (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by Mortgagee 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 Mortgagee or such officer or be answerable in any way for the misapplication thereof."
"Section5.10 No Mortgagee in Possession. To the fullest extent permitted by applicable law, neither the enforcement of any of the remedies under this ArticleV, the assignment of the Rents and Leases under ArticleVI, the security interests under ArticleVII, nor any other remedies afforded to Mortgagee under any applicable Loan Document, at law or in equity shall cause Mortgagee or any other Secured Party to be deemed or construed to be a mortgagee in possession of the Mortgaged Property, to obligate Mortgagee or any other Secured Party to lease the Mortgaged Property or attempt to do so, or to take any action, incur any expense, or perform or discharge any obligation, duty or liability whatsoever under any of the Leases or otherwise."
"Section6.2 Perfection Upon Recordation. Mortgagor acknowledges that it has taken all actions necessary to obtain, and that upon recordation of this Mortgage, Mortgagee 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. Mortgagor acknowledges and agrees that upon recordation of this Mortgage, Mortgagees interest in the Rents, to the extent permitted under applicable law, shall be deemed to be fully perfected, choate and enforced as to Mortgagor 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 Mortgage, making formal demand for the Rents, obtaining the appointment of a receiver or taking any other affirmative action."
"Section7.2 Financing Statements. Mortgagor shall prepare and deliver to Mortgagee such financing statements, and shall execute and deliver to Mortgagee such other documents, instruments and further assurances, in each case in form and substance reasonably satisfactory to Mortgagee, as Mortgagee may, from time to time, reasonably consider necessary to create, perfect and preserve Mortgagees security interest hereunder (and such financing statements may describe the collateral as all assets). Mortgagor hereby irrevocably authorizes Mortgagee to cause financing statements (and amendments thereto and continuations thereof) and any such documents, instruments and assurances to be recorded and filed, at such times and places as may be required or permitted by law to so create, perfect and preserve such security interest. Mortgagor represents and warrants to Mortgagee that Mortgagors jurisdiction of organization is the State of []."
"Section8.1 Notices. All communications and notices hereunder shall (except as otherwise expressly permitted herein) be in writing and given as provided in Section9.01 of the Credit Agreement (whether or not then in effect) or, with respect to any holder of obligations under any Other First Lien Agreement, addressed to the Authorized Representative of such holder at its address set forth in the applicable Other First Lien Secured Party Consent, as such address may be changed by written notice to Mortgagor."
"Section8.3 Attorney-in-Fact. Subject to any applicable Intercreditor Agreements and the Master Lease Intercreditor Agreements, Mortgagor hereby irrevocably appoints Mortgagee as its attorney-in-fact, which agency is coupled with an interest and with full power of substitution, with full authority in the place and stead of Mortgagor and in the name of Mortgagor or otherwise (a)to execute and/or record any notices of completion, cessation of labor or any other notices that Mortgagee reasonably deems appropriate to protect Mortgagees interest, if Mortgagor shall fail to do so within ten(10) days after written request by Mortgagee, (b)upon the issuance of a deed pursuant to the foreclosure of this Mortgage or the delivery of a deed in lieu of foreclosure, to execute all instruments of assignment, conveyance or further assurance with respect to the Leases, Rents, Deposit Accounts, Property Agreements, Tax Refunds, Proceeds, Insurance, Condemnation Awards and Records in favor of the grantee of any such deed and as may be necessary or desirable for such purpose, (c)to prepare and file or record financing statements and continuation statements, and to prepare, execute and file or record applications for registration and like papers necessary to create, perfect or preserve Mortgagees security interests and rights in or to any of the Mortgaged Property, and (d)after the occurrence and during the continuance of any Event of Default, to perform any obligation of Mortgagor hereunder; provided, however, that (1)Mortgagee shall not under any circumstances be obligated to perform any obligation of Mortgagor; (2)any sums advanced by Mortgagee in such performance shall be added to and included in the Obligations and shall bear interest at the highest rate at which interest is then computed on any portion of the Obligations; (3)Mortgagee as such attorney-in-fact shall only be accountable for such funds as are actually received by Mortgagee; and (4)Mortgagee shall not be liable to Mortgagor or any other person or entity for any failure to take any action which it is empowered to take under this Section8.3. Mortgagor hereby ratifies all that such attorney-in-fact shall lawfully do or cause to be done by virtue hereof."
"(b) Mortgagor shall automatically be released from its obligations hereunder and the Lien and security interests in the Mortgaged Property of Mortgagor 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 Mortgagor ceases to be the Borrower or a Subsidiary of the Borrower or otherwise becomes an Excluded Subsidiary or ceases to be a Loan Party, all without delivery of any instrument or performance of any act by any party, and all rights to the Mortgaged Property shall revert to Mortgagor."
"(g) Upon the natural expiration or permitted termination of the term that is permitted pursuant to the Loan Documents of the Mortgaged Lease, Mortgagor shall automatically be released from its obligations hereunder and the security interests of Mortgagee shall be automatically released, all without delivery of any instrument or performance of any act by Mortgagee."
"(h) In connection with any termination or release pursuant to this Section8.7, Mortgagee shall execute and deliver to Mortgagor, at Mortgagors expense, all documents that Mortgagor shall reasonably request and reconveyances to evidence such termination or release (including, without limitation, mortgage releases or UCC amendment or termination statements, as applicable), and will duly assign and transfer to Mortgagor, such of the Mortgaged Property that may be in the possession of Mortgagee and has not theretofore been sold or otherwise applied or released pursuant to this Mortgage. Any execution and delivery of documents pursuant to this Section8.7 shall be without recourse to or warranty by Mortgagee. In connection with any release pursuant to this Section8.7, Mortgagor 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 Mortgagee) prepared by the Borrower pursuant to this Section8.7, Mortgagee shall execute, deliver or acknowledge such instruments or releases to evidence the release of the Mortgaged Property permitted to be released pursuant to this Mortgage. Mortgagor agrees to pay all reasonable and documented out-of-pocket expenses incurred by Mortgagee (and its representatives and counsel) in connection with the execution and delivery of such release documents or instruments."
"Section8.8 Waiver of Stay, Moratorium and Similar Rights. Mortgagor agrees, to the full extent that it may lawfully do so, that it will not at any time insist upon or plead or in any way take advantage of any stay, marshalling of assets, extension, redemption or moratorium law now or hereafter in force and effect so as to prevent or hinder the enforcement of the provisions of this Mortgage or the Obligations secured hereby, or any agreement between Mortgagor and Mortgagee or any rights or remedies of Mortgagee or any other Secured Party."
"(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 Mortgage 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."
"Section8.21 Other First Lien Obligations. Upon the execution and delivery by the Borrower to Mortgagee and each Authorized Representative of a fully executed Other First Lien Secured Party Consent in accordance with Section7.23 of the Collateral Agreement, the holders of the Other First Lien Obligations as set forth in such Other First Lien Secured Party Consent shall automatically be secured by the Mortgaged Property hereunder without any further action, and such holder shall automatically become a Secured Party hereunder."
"deferred, accrued or capitalized, including future advances and re-advances, pursuant to the Credit Agreement, the other Loan Documents, any Secured Swap Agreement and any Secured Cash Management Agreement, whether such advances are obligatory or to be made at the option of the Secured Parties, or otherwise, and any extensions, refinancings, modifications or renewals of all such Obligations whether or not Grantor executes any extension agreement or renewal instrument and, in each case, to the same extent as if such future advances were made on the date of the execution of this Deed of Trust."
"Section2.6 No Release. Nothing set forth in this Deed of Trust shall relieve Grantor from the performance of any term, covenant, condition or agreement on Grantors 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 Trustee, Beneficiary or any other Secured Party to perform or observe any such term, covenant, condition or agreement on Grantors part to be so performed or observed or shall impose any liability on Trustee, Beneficiary or any other Secured Party for any act or omission on the part of Grantor relating thereto or for any breach of any representation or warranty on the part of Grantor contained in this Deed of Trust or any other Loan Document, or under or in respect of the Mortgaged Property or made in connection herewith or therewith. The obligations of Grantor contained in this Section2.6 shall survive the termination hereof and the discharge of Grantors other obligations under this Deed of Trust and the other Loan Documents."
"Section3.1 Title to Mortgaged Property and Lien of this Instrument. Grantor has good and marketable fee simple title to the Premises, and good and marketable title to the remainder of the Mortgaged Property, free and clear of any Liens, except Permitted Liens. This Deed of Trust creates valid, enforceable first priority Liens and security interests in favor of Beneficiary against Grantors estate, right, title and interests in the Mortgaged Property for the benefit of the Secured Parties securing the payment and performance of the Obligations subject only to Permitted Liens. Upon recordation in the official real estate records in the county (or other applicable jurisdiction) in which the Premises are located, this Deed of Trust will constitute a valid and enforceable first priority Lien on Grantors estate, right, title and interests in the Mortgaged Property in favor of Beneficiary for the benefit of the Secured Parties subject only to Permitted Liens."
"Section5.1 Remedies. In accordance with, and to the extent consistent with, the terms of any applicable Intercreditor Agreement and the Master Lease Intercreditor Agreements, Beneficiary (and/or Trustee as so required by applicable law) may take any action specified in this Section5.1. Upon the occurrence and during the continuance of an Event of Default, Beneficiary (and/or Trustee as so required by applicable law) may, at Beneficiarys election, exercise any or all of the following rights, remedies and recourses:"
"(a) Acceleration. Subject to any provisions of the applicable Loan Documents providing for the automatic acceleration of the Obligations upon the occurrence and during the continuance of certain Events of Default, declare the Obligations to be immediately due and payable, without further notice, presentment, protest, notice of intent to accelerate, notice of acceleration, demand or action of any nature whatsoever (each of which hereby is expressly waived by Grantor), whereupon the same shall become immediately due and payable."
"Section5.6 Discontinuance of Proceedings. If Beneficiary or any other Secured Party shall have proceeded to invoke any right, remedy or recourse permitted under any applicable Loan Documents and shall thereafter elect to discontinue or abandon it for any reason, Beneficiary or such other Secured Party, as the case may be, shall have the unqualified right to do so and, in such an event, Grantor, Beneficiary and the other Secured Parties shall be restored to their former positions with respect to the Obligations, any applicable Loan Documents, the Mortgaged Property and otherwise, and the rights, remedies, recourses and powers of Beneficiary and the other Secured Parties shall continue as if the right, remedy or recourse had never been invoked, but no such discontinuance or abandonment shall waive any Event of Default which may then exist or the right of Beneficiary or any other Secured Party thereafter to exercise any right, remedy or recourse under any applicable Loan Documents for such Event of Default."
"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 Grantor 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, Grantor and Beneficiary agree that (a)this Deed of Trust shall constitute a security agreement for purposes of Section552(b) of the Bankruptcy Code, (b)the security interest created by this Deed of Trust extends to property of Grantor 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."
"Section7.2 Financing Statements. Grantor shall prepare and deliver to Beneficiary such financing statements, and shall execute and deliver to Beneficiary such other documents, instruments and further assurances, in each case in form and substance reasonably satisfactory to Beneficiary, as Beneficiary may, from time to time, reasonably consider necessary to create, perfect and preserve Beneficiarys security interest hereunder (and such financing statements may describe the collateral as all assets). Grantor hereby irrevocably authorizes Beneficiary to cause financing statements (and amendments thereto and continuations thereof) and any such documents, instruments and assurances to be recorded and filed, at such times and places as may be required or permitted by law to so create, perfect and preserve such security interest. Grantor represents and warrants to Beneficiary that Grantors jurisdiction of organization is the State of []."
"Section8.4 Successors and Assigns. Whenever in this Deed of Trust Grantor, Trustee or Beneficiary are referred to, such reference shall be deemed to include the permitted successors and assigns of each of them, and all covenants, promises and agreements by or on behalf of Grantor that are contained in this Deed of Trust shall bind its permitted successors and assigns and inure to the benefit of Trustee and Beneficiary and each of their successors and assigns."
"(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."
"(b) Grantor shall automatically be released from its obligations hereunder and the Lien and security interests in the Mortgaged Property of Grantor 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 Grantor ceases to be the Borrower or a Subsidiary of the Borrower or otherwise becomes an Excluded Subsidiary or ceases to be a Loan Party, all without delivery of any instrument or performance of any act by any party, and all rights to the Mortgaged Property shall revert to Grantor."
"(c) (i) Upon any sale or other transfer by Grantor of any of the Mortgaged Property that is not prohibited by the Credit Agreement or any Other First Lien Agreement to any person that is not (and is not required to become) a Loan Party, (ii)upon the effectiveness of any written consent to the release of the security interest granted hereby in any Mortgaged Property pursuant to Section9.18 of the Credit Agreement (or any Equivalent Provision thereof) and any equivalent provision of any applicable Other First Lien Agreement (in each case, to the extent required thereby), or (iii)as otherwise may be provided in any applicable Intercreditor Agreement or any Master Lease Intercreditor Agreement, the Lien and security interest in such Mortgaged Property shall be automatically released, all without delivery of any instrument or performance of any act by any party."
"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 Deed of Trust unless otherwise expressly stated."
"Section8.14 Recording Documentation to Assure Security. Grantor shall, forthwith after the execution and delivery hereof and thereafter, from time to time, cause this Deed of Trust and any financing statement, continuation statement or similar instrument relating to any of the Mortgaged Property or to any property intended to be subject to the Lien hereof or the security interests created hereby to be filed, registered and recorded in such manner and in such places as may be required by any present or future law and shall take such actions as Beneficiary shall reasonably deem necessary in order to publish notice of and fully to protect the validity and priority of the Liens, assignment, and security interests purported to be created upon the Mortgaged Property and the interest and rights of Beneficiary therein. Grantor shall pay or cause to be paid all taxes and fees incident to such filing, registration and recording, and all expenses incident to the preparation, execution and acknowledgment thereof, and of any instrument of further assurance, and all Federal or state stamp taxes or other taxes, duties and charges arising out of or in connection with the execution and delivery of such instruments. In the event Trustee or Beneficiary advances any sums to pay the amounts set forth in the preceding sentence, such advances shall be secured by this Deed of Trust."
"(b) Any such amounts payable as provided hereunder shall be additional Obligations secured hereby and by the other Security Documents. The provisions of this Section8.18 shall remain operative and in full force and effect regardless of the termination of this Deed of Trust or any other Loan Document, 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 Deed of Trust or any other Loan Document, or any investigation made by or on behalf of Beneficiary or any other Secured Party. All amounts due under this Section8.18 shall be payable within thirty (30)days after written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested."
"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 Deed of Trust shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Deed of Trust, the Mortgaged Property, the Collateral, or Grantors other properties, in the courts of any jurisdiction."
"(c) Notwithstanding anything herein to the contrary, [(i)any exercise of remedies hereunder or under any other Security Document that would affect the Leasehold Estate (as defined in the CPLV Master Lease) is subject and subordinate to the terms of the CPLV Master Lease, (ii)any exercise of remedies hereunder or under any other Security Document that would affect the Leasehold Estate (as defined in the Non-CPLV Master Lease) is subject and subordinate to the terms of the Non-CPLV Master Lease, and (iii)any exercise of remedies hereunder or under any other Security Document that would affect the Leasehold Estate or similar term (as defined in each other Master Lease, Additional Master Lease or Additional Lease) is subject and subordinate to the terms of such other Master Lease, Additional Master Lease or Additional Lease.]"
"Section8.22 Application of Gaming Laws and Liquor Laws. Notwithstanding anything herein to the contrary, this Deed of Trust and any other Loan Document are subject to Gaming Laws and Liquor Laws. Without limiting the foregoing, Beneficiarys acceptance of this Deed of Trust shall be conclusively deemed an acknowledgment by Beneficiary that (i)the Secured Parties 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 Deed of Trust and the other Loan Documents, including with respect to the Mortgaged Property 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."
"(o) Mortgaged Property means the leasehold estate in the real property described in Exhibit A attached hereto and incorporated herein by this reference, together with any greater estate therein as hereafter may be acquired by Grantor (including the Lessors interest in the Land should such estate be hereafter acquired by Grantor) and all of Grantors right, title and interest in, to and under all rights, privileges, tenements, hereditaments, rights-of-way, streets and ways adjacent to the land, easements, appendages and appurtenances appertaining to the foregoing in each case whether now owned"
"Mortgaged Property, free and clear of any Liens, except Permitted Liens. The Mortgaged Lease is in full force and effect and has not been amended or modified (except as contemplated by the definition thereof). Grantor has not received any notice of default on the part of Grantor from Lessor, nor has Grantor sent any notice of default on the part of Lessor to Lessor. Grantors execution and delivery of this Deed of Trust and the other Loan Documents do not violate any of the terms of the Mortgaged Lease. This Deed of Trust creates valid, enforceable first priority Liens and security interests in favor of Beneficiary against Grantors estate, right, title and interests in the Mortgaged Property for the benefit of the Secured Parties securing the payment and performance of the Obligations subject only to Permitted Liens. Upon recordation in the official real estate records in the county (or other applicable jurisdiction) in which the Premises are located, this Deed of Trust will constitute a valid and enforceable first priority Lien on Grantors estate, right, title and interests in the Mortgaged Property in favor of Beneficiary for the benefit of the Secured Parties subject only to Permitted Liens."
"Section5.1 Remedies. In accordance with, and to the extent consistent with, the terms of any applicable Intercreditor Agreement and the Master Lease Intercreditor Agreements, Beneficiary (and/or Trustee as so required by applicable law) may take any action specified in this Section5.1. Upon the occurrence and during the continuance of an Event of Default, Beneficiary (and/or Trustee as so required by applicable law) may, at Beneficiarys election, exercise any or all of the following rights, remedies and recourses:"
"(a) Acceleration. Subject to any provisions of the applicable Loan Documents providing for the automatic acceleration of the Obligations upon the occurrence and during the continuance of certain Events of Default, declare the Obligations to be immediately due and payable, without further notice, presentment, protest, notice of intent to accelerate, notice of acceleration, demand or action of any nature whatsoever (each of which hereby is expressly waived by Grantor), whereupon the same shall become immediately due and payable."
"(c) Operation of Mortgaged Property. Hold, lease, develop, manage, operate, carry on the business thereof or otherwise use the Mortgaged Property upon such terms and conditions as Beneficiary may deem reasonable under the circumstances (including, without limitation, making such repairs, alterations, additions and improvements and taking other actions, from time to time, as Beneficiary deems necessary or desirable), and apply all Rents and other amounts collected by Beneficiary in connection therewith in accordance with the provisions of Section5.7."
"Section5.3 Remedies Cumulative, Concurrent and Nonexclusive. Beneficiary and the other Secured Parties shall have all rights, remedies and recourses granted in any applicable Loan Documents and available at law or equity (including the UCC), which rights (a)shall be cumulative and concurrent, (b)may be pursued separately, successively or concurrently against Grantor or others obligated under any applicable Loan Documents, or against the Mortgaged Property, or against any one or more of them, at the sole discretion of Beneficiary or such other Secured Party, as the case may be, (c)may be exercised as often as occasion therefor shall arise, and the exercise or failure to exercise any of them shall not be construed as a waiver or release thereof or of any other right, remedy or recourse, and (d)are intended to be, and shall be, nonexclusive. No action by Trustee or Beneficiary or any other Secured Party in the enforcement of any rights, remedies or recourses under any applicable Loan Documents or otherwise at law or equity shall be deemed to cure any Event of Default."
"(b) SECOND, to the payment in full of the Obligations secured by such Mortgaged Property (the amounts so applied to be distributed among each Series of Secured Parties pro rata based on the respective amounts of such Obligations owed to them on the date of any such distribution (or in accordance with such other method of distribution as may be set forth in any applicable First Lien Intercreditor Agreement)), with (x)the portion thereof distributed to the Credit Agreement Secured Parties to be further distributed in accordance with the Credit Agreement and (y)the portion thereof distributed to the Secured Parties of any other Series to be further distributed in accordance with the applicable provisions of the Other First Lien Agreement governing such Series; and"
"Section6.1 Assignment. In furtherance of and in addition to the assignment made by Grantor in Section2.1, Grantor hereby absolutely and unconditionally assigns, sells, transfers and conveys to Beneficiary all of its right, title and interest in and to all Leases (but only to the extent permitted under such Leases), whether now existing or hereafter entered into, and all of its right, title and interest in and to all Rents. This assignment is an absolute assignment and not an assignment for additional security only. So long as no Event of Default shall have occurred and be continuing, and so long as Beneficiary has not provided written notice of its revocation of such license, Grantor shall have a revocable license from Beneficiary to exercise all rights extended to the landlord under the Leases, including the right to receive and collect all Rents and to hold the Rents in trust for use in the payment and performance of the Obligations and to otherwise use the same. The foregoing license is granted subject to the conditional limitation that no Event of Default shall have occurred and be continuing and no such notice has been given. Upon the occurrence and during the continuance of an Event of Default, whether or not legal proceedings have commenced, and without regard to waste, adequacy of security for the Obligations or solvency of Grantor, the license herein granted shall, at the election of Beneficiary, expire and terminate, upon written notice to Grantor by Beneficiary."
"Section7.2 Financing Statements. Grantor shall prepare and deliver to Beneficiary such financing statements, and shall execute and deliver to Beneficiary such other documents, instruments and further assurances, in each case in form and substance reasonably satisfactory to Beneficiary, as Beneficiary may, from time to time, reasonably consider necessary to create, perfect and preserve Beneficiarys security interest hereunder (and such financing statements may describe the collateral as all assets). Grantor hereby irrevocably authorizes Beneficiary to cause financing statements (and amendments thereto and continuations thereof) and any such documents, instruments and assurances to be recorded and filed, at such times and places as may be required or permitted by law to so create, perfect and preserve such security interest. Grantor represents and warrants to Beneficiary that Grantors jurisdiction of organization is the State of []."
Section7.3 Fixture Filing. This Deed of Trust 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 Deed of Trust shall comply with the requirements of the UCC for a deed of trust instrument to be filed as a financing statement. Grantor is the Debtor and its name and mailing address are set forth in the preamble of this Deed of Trust (immediately preceding ArticleI). Beneficiary 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 Deed of Trust (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. Grantor represents and warrants to Beneficiary that (a)Grantor is the owner of []; and (b)Lessor is the record owner of [].
"Section8.1 Notices. All communications and notices hereunder shall (except as otherwise expressly permitted herein) be in writing and given as provided in Section9.01 of the Credit Agreement (whether or not then in effect) or, with respect to any holder of obligations under any Other First Lien Agreement, addressed to the Authorized Representative of such holder at its address set forth in the applicable Other First Lien Secured Party Consent, as such address may be changed by written notice to Grantor."
"(c) Notwithstanding anything to the contrary contained herein, Beneficiary may grant extensions of time or waivers of the requirement for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to the Mortgaged Property where it reasonably determines, in consultation with the Borrower, that perfection or obtaining of such items cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Deed of Trust or any other Loan Document."
"(a) This Deed of Trust and all Liens and security interests created by this Deed of Trust shall automatically terminate and/or be released all without delivery of any instrument or performance of any act by Trustee or Beneficiary, all rights to the Mortgaged Property shall automatically revert to Grantor, and Beneficiary shall automatically assign back to Grantor all of its right, title and interest in the Leases and Rents, upon the occurrence of the Termination Date or, if any Other First Lien Obligations are outstanding on the Termination Date, the date when all Other First Lien Obligations (in each case other than contingent or unliquidated obligations or liabilities not then due and any other obligations that, by the terms of any Other First Lien Agreements, are not required to be paid in full prior to termination and release of the Mortgaged Property) have been paid in full and the Secured Parties have no further commitment to extend credit under any Other First Lien Agreement."
"(e) Solely with respect to any Series of Other First Lien Obligations, Grantor shall automatically be released from its obligations hereunder and/or the Lien and security interests in the Mortgaged Property securing such Series of Other First Lien Obligations shall in each case be automatically released upon the occurrence of any of the circumstances set forth in the section governing release of collateral in the applicable Other First Lien Agreement governing such Series of Other First Lien Obligations, all without delivery of any instrument or performance of any act by any party, and all rights to the Mortgaged Property shall revert to Grantor."
"Section8.19 Jurisdiction; Consent to Service of Process. (a)Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the non-exclusive jurisdiction of any New York State court or federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Deed of Trust, 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 Deed of Trust shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Deed of Trust, the Mortgaged Property, the Collateral, or Grantors other properties, in the courts of any jurisdiction."
"(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."
"Section10.2 New Leases. If the Mortgaged Lease shall be terminated prior to the natural expiration of its term due to default Grantor or any tenant thereunder, and if, pursuant to the provisions of the Mortgaged Lease, Beneficiary or its designee shall acquire from the Lessor a new lease of the Land, Grantor shall have no right, title or interest in or to such new lease or the leasehold estate created thereby, or renewal privileges therein contained."
"(b) To the extent permitted by law, and until the Obligations have been satisfied in full, if Grantor does not make an election to remain in possession of the Premises pursuant to Section365(h)(l)(A)(ii) within a reasonable period, Grantor hereby assigns to Beneficiary the right to make such election on behalf of Grantor. Grantor acknowledges and agrees that the foregoing assignment of its rights under Section365(h) of the Bankruptcy Code and any related rights, are rights that Beneficiary may use to protect and preserve Beneficiarys other rights and interests under this Deed of Trust."
"Reference is made to (1)that certain 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 (2)that certain Discounted Prepayment Option Notice, dated [], from the Borrower (the Discounted Prepayment Option Notice). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement, or if not defined herein or in the Credit Agreement, shall have the meanings assigned to such terms in the Discounted Prepayment Option Notice."
"This Solvency Certificate is delivered pursuant to Section4.02(e) of 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). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement."
"2\. As of the date hereof, immediately after giving effect to the Transactions, (i)the fair value of the assets of the Borrower and the Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of the Borrower and the Subsidiaries on a consolidated basis; (ii)the present fair saleable value of the property of the Borrower and the Subsidiaries on a consolidated basis will be greater than the amount that will be required to pay the probable liability of the Borrower and the Subsidiaries on a consolidated basis on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii)the Borrower and the Subsidiaries on a consolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv)the Borrower and the Subsidiaries on a consolidated basis will not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted following the Closing Date."
"FOR VALUE RECEIVED, each of the undersigned, to the extent a borrower from time to time from any other entity listed on the signature pages hereto (each, in such capacity, an Issuer), hereby promises to pay on demand to the order of such other entity listed below (each, in such capacity as lender to the applicable Issuer, a Holder and, together with each Issuer, a Note Party), in immediately available funds in the currencies as shall be agreed from time to time, at such location as the applicable Holder shall from time to time designate, the unpaid principal amount of all loans and advances or other credit extensions made by such Holder to such Issuer. Each Issuer promises also to pay interest on the unpaid principal amount of all such loans and advances or other credit extensions in like money at said location from the date of such loans and advances until paid at such rate per annum as shall be agreed upon from time to time by such Issuer and such Holder."
"Upon execution and delivery after the date hereof by the Borrower or any subsidiary of the Borrower of a counterpart signature page hereto, such subsidiary shall become a Note Party hereunder with the same force and effect as if originally named as a Note Party hereunder. The rights and obligations of each Note Party hereunder shall remain in full force and effect notwithstanding the addition of any new Note Party as a party to this Note."
"16\. Further Actions. Tenant agrees to execute and deliver, at any time and from time to time upon the reasonable request of Collateral Agent or any Acquiring Party, such documents and instruments as may be reasonably necessary or appropriate to fully implement or to further evidence the understandings and agreements contained in this Agreement."
"COLLATERAL AGREEMENT dated as of October6, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this Agreement), among CAESARS ENTERTAINMENT OPERATING COMPANY, INC., a Delaware corporation, CEOC, LLC, a Delaware limited liability company, each Subsidiary of the Borrower (as defined below) from time to time party hereto and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as collateral agent (together with its successors and permitted assigns in such capacity, the Collateral Agent) for the Secured Parties (as defined below)."
"The Loan Parties may from time to time (a)incur Other First Lien Obligations under Other First Lien Agreements and/or (b)enter into Secured Cash Management Agreements and/or Secured Swap Agreements pursuant to which a Cash Management Bank or a Hedge Bank, as applicable, party thereto will provide financial accommodations to the Loan Parties."
"The Subsidiary Loan Parties will derive substantial benefits from the extension of credit to the Borrower pursuant to the Credit Agreement and any Other First Lien Obligations and the Loan Parties will derive substantial benefits from the provision of financial accommodations pursuant to the Secured Cash Management Agreements and Secured Swap Agreements. The Loan Parties are willing to execute and deliver this Agreement in order to induce the Lenders and the L/C Issuers to extend such credit under the Credit Agreement, to induce any Cash Management Bank and any Hedge Bank to provide such financial accommodations under any Secured Cash Management Agreement or any Secured Swap Agreement, respectively, and to induce the holders of any Other First Lien Obligations to make extensions of credit under the applicable Other First Lien Agreements, as applicable. Accordingly, the parties hereto agree as follows:"
(a) Capitalized terms used in this Agreement and not otherwise defined herein have the respective meanings assigned thereto in the Credit Agreement. All terms defined in the New York UCC (as defined herein) and not defined in this Agreement or the Credit Agreement have the meanings specified therein (and if defined in more than one article of the New York UCC shall have the meaning given in Article 9 thereof). The term instrument shall have the meaning specified in Article9 of the New York UCC.
"Master Lease Intercreditor Agreements means (a)the Intercreditor Agreement, dated as of the Closing Date (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the CPLV Intercreditor Agreement), by and among the Borrower, each Subsidiary of the Borrower party thereto, the Collateral Agent, CPLV Landlord, the lenders to the CPLV Landlord and each other party thereto from time to time, (b)the Intercreditor Agreement, dated as of the Closing Date (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the Non-CPLV Intercreditor Agreement), by and among the Borrower, each Subsidiary of the Borrower party thereto, the Collateral Agent, Non-CPLV Landlord, the lenders to the Non-CPLV Landlord and each other party thereto from time to time and (c)each additional master lease intercreditor agreement"
"entered into from time to time after the Closing Date, by and among the Borrower, each Subsidiary of the Borrower party thereto, the landlord party thereto and each other person from time to time party thereto in connection with any other Master Lease, Additional Master Lease or Additional Lease (each as amended, restated, amended and restated, supplemented or otherwise modified from time to time, an Additional Master Lease Intercreditor Agreement)."
"Series means (a)with respect to any Secured Parties, each of (i)the Credit Agreement Secured Parties (in their capacities as such) and (ii)each group of Other First Lien Secured Parties that become subject to this Agreement and a First Lien Intercreditor Agreement after the date hereof, which are to be represented hereunder and thereunder by a common Authorized Representative (in its capacity as such for such Other First Lien Secured Parties), each of which shall constitute a separate Series of Secured Parties for purposes of this Agreement and (b)with respect to any Secured Obligations, each of (i)the Credit Agreement Secured Obligations and (ii)each group of Other First Lien Obligations incurred pursuant to any Other First Lien Agreement, which are to be represented hereunder and under a First Lien Intercreditor Agreement by a common Authorized Representative (in its capacity as such for such Other First Lien Obligations), each of which shall constitute a separate Series of Secured Obligations for purposes of this Agreement."
"Trademarks means all of the following now owned or hereafter acquired by any Pledgor:(a)all trademarks, service marks, corporate names, company names, business names, fictitious business names, trade styles, trade dress, logos, other source or business identifiers, designs and general intangibles of like nature, now existing or hereafter adopted or acquired, all registrations thereof (if any), and all registration and recording applications filed in connection therewith, including registrations and registration applications in the United States Patent and Trademark Office or any similar offices in any State of the United States or any other country or any political subdivision thereof, and all renewals thereof, including those listed on ScheduleIV and (b)all goodwill associated therewith or symbolized thereby."
"SECTION 3.01Pledge. As security for the payment or performance, as the case may be, in full of the Secured Obligations, each Pledgor hereby collaterally assigns and pledges to the Collateral Agent, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, for the benefit of the Secured Parties, a security interest in all of such Pledgors right, title and interest in, to and under:"
"(c) Subject to the provisions of Section7.19, upon delivery to the Collateral Agent, (i)any Pledged Securities required to be delivered pursuant to the foregoing paragraphs(a) and (b)of this Section3.02 shall be accompanied by stock powers or note powers, as applicable, duly executed in blank or other instruments of transfer reasonably satisfactory to the Collateral Agent and by such other instruments and documents as the Collateral 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 the Pledged Collateral by proper instruments of assignment duly executed by the applicable Pledgor and such other instruments or documents as the Collateral Agent may reasonably request. Each delivery of Pledged Securities shall be accompanied by a schedule describing the securities, which schedule shall be attached hereto as ScheduleIII (or a supplement to ScheduleIII, as applicable) and made a part hereof; provided that 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."
"(c) except for the security interests granted hereunder (or otherwise not prohibited by the Loan Documents), each Pledgor (i)is and, subject to any transfers made not in violation of the Credit Agreement and any Other First Lien Agreement, will continue to be the direct owner, beneficially and of record, of the Pledged Securities indicated on ScheduleIII as owned by such Pledgor, (ii)holds the same free and clear of all Liens, other than Permitted Liens, (iii)will make no assignment, pledge, hypothecation or transfer of, or create or permit to exist any security interest in or other Lien on, the Pledged Collateral, other than pursuant to a transaction not prohibited by the Credit Agreement and any Other First Lien Agreement and other than Permitted Liens, and (iv)subject to the rights of such Pledgor under the Loan Documents to dispose of Pledged Collateral, will use commercially reasonable efforts to defend its title or interest thereto or therein against any and all Liens (other than Permitted Liens), however arising, of all persons;"
"(b) Each interest in any limited liability company or limited partnership Controlled by a Pledgor, pledged hereunder and not represented by a certificate shall not be a security within the meaning of Article 8 of the New York UCC and shall not be governed by Article8 of the New York UCC (or other applicable Uniform Commercial Code in effect in another jurisdiction), and the Pledgors shall at no time elect to treat any such interest as a security within the meaning of Article8 of the New York UCC or issue any certificate representing such interest, unless the applicable Pledgor provides notification to the Collateral Agent of such election and promptly delivers any such certificate to the Collateral Agent pursuant to the terms hereof (and in any event within 45 days or such longer period as the Collateral Agent may permit in its reasonable discretion)."
"(c) Subject to Section4.01(d) hereof, each Pledgor agrees, at its own expense, to execute, acknowledge, deliver and cause to be duly filed all such further instruments and documents and take all such actions as the Collateral Agent may from time to time reasonably request to better assure, preserve, protect and perfect the Security Interest and the rights and remedies created hereby, including the payment of any fees and taxes required in connection with the execution and delivery of this Agreement and the granting of the Security Interest and the filing of any financing statements (including fixture filings) or other documents in connection herewith or therewith."
"Without limiting the generality of the foregoing, each Pledgor hereby authorizes the Collateral Agent, with prompt notice thereof to the Pledgors, to supplement this Agreement by supplementing ScheduleIV or adding additional schedules hereto to specifically identify any asset or item that is a Copyright, Patent or Trademark (other than any Excluded Property); provided that any Pledgor shall have the right, exercisable within 90days after it has been notified by the Collateral Agent of the specific identification of such Collateral, to advise the Collateral Agent in writing of any inaccuracy of the representations and warranties made by such Pledgor hereunder with respect to such Collateral. Each Pledgor agrees that it will use its commercially reasonable efforts to take such action as shall be necessary in order that all representations and warranties hereunder shall be true and correct with respect to such Collateral within 90 days after the date it has been notified by the Collateral Agent of the specific identification of such Collateral."
"(d) After the occurrence of an Event of Default and during the continuance thereof, the Collateral Agent shall have the right to verify under reasonable procedures the validity, amount, quality, quantity, value, condition and status of, or any other matter relating to, the Article9 Collateral, including, in the case of Accounts or Article9 Collateral in the possession of any third person, by contacting Account Debtors or the third person possessing such Article9 Collateral for the purpose of making such a verification. The Collateral Agent shall have the right to share any information it gains from such inspection or verification with any Secured Party, subject to Section9.16 of the Credit Agreement (or any Equivalent Provision thereof) and any equivalent provision of any Other First Lien Agreement."
"(c) Each Pledgor will, and will use its commercially reasonable efforts to cause its licensees or its sublicensees to, for each work covered by a material Copyright necessary to the normal conduct of such Pledgors business that it publishes, displays and distributes, use copyright notice as required under applicable copyright laws."
"(d) Each Pledgor shall notify the Collateral Agent promptly if it knows that any Patent, Trademark or Copyright that is material to the normal conduct of such Pledgors business may imminently become abandoned, lost or dedicated to the public, or of any materially adverse determination or development, excluding office actions and similar determinations or developments, in the United States Patent and Trademark Office, United States Copyright Office, any court or any similar office of any country, regarding such Pledgors ownership of any such material Patent, Trademark or Copyright or its right to register or to maintain the same."
"(f) Each Pledgor shall exercise its reasonable business judgment consistent with its past practice in any proceeding before the United States Patent and Trademark Office, the United States Copyright Office or any comparable office or agency in any other country with respect to maintaining and pursuing each material application relating to any Patent, Trademark and/or Copyright (and obtaining the relevant grant or registration) that is material to the normal conduct of such Pledgors business and to maintain (i)each issued Patent and (ii)the registrations of each Trademark and each Copyright, in each case that is material to the normal conduct of such Pledgors business, including, when applicable and necessary in such Pledgors reasonable"
"(g) In the event that any Pledgor knows or has reason to know that any Article9 Collateral consisting of a Patent, Trademark or Copyright that is material to the normal conduct of its business has been materially infringed, misappropriated or diluted by a third party, such Pledgor shall promptly notify the Collateral Agent and shall, if such Pledgor deems it necessary in its reasonable business judgment, promptly sue and recover any and all damages, and take such other actions as are reasonably appropriate under the circumstances."
"FIRST, to the payment of all fees and reasonable costs and expenses incurred by the Collateral Agent in connection with such collection or sale or otherwise in connection with this Agreement, any other Loan Document or any of the Secured Obligations secured by such Collateral, including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any other Loan Document on behalf of any Pledgor and any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Loan Document and all other fees, indemnities and other amounts owing or reimbursable to the Collateral Agent under any Loan Document in its capacity as such, in each case to the extent required to be paid by any Pledgor under any Loan Document;"
"SECOND, to the payment in full of the Secured Obligations secured by such Collateral (the amounts so applied to be distributed among the Secured Parties pro rata based on the respective amounts of such Secured Obligations owed to them on the date of any such distribution (or in accordance with such other method of distribution as may be set forth in any applicable First Lien Intercreditor Agreement)); and"
"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 Secured Obligations under any Other First Lien Agreement or replacement Credit Agreement that is not secured by such Specified Excluded Collateral or (y)the Collateral or the proceeds of any collection or sale of any Collateral of any Pledgor be applied to any Excluded Swap Obligations."
"The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral 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 the Collateral Agent or such officer or be answerable in any way for the misapplication thereof."
"(c) For the avoidance of doubt, the provisions of Article VIII of the Credit Agreement or any equivalent provisions of any Other First Lien Agreement shall also apply to the Collateral Agent acting under or in connection with this Agreement in such capacity. No provision of this Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers."
"SECTION 7.08GOVERNING LAW. THIS AGREEMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY PRINCIPLE OF CONFLICTS OF LAW THAT COULD REQUIRE THE APPLICATION OF ANY OTHER LAW."
"(a) No failure or delay by the Collateral Agent 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 the Collateral Agent or 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 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 Section7.09, 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 the Collateral Agent 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 any Pledgor in any case shall entitle any Pledgor to any other or further notice or demand in similar or other circumstances."
"(b) Neither this Agreement nor any provision hereof or of any other Security Document may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Collateral Agent and the Pledgor or Pledgors with respect to which such waiver, amendment or modification is to apply, subject to any consent required in accordance with Section9.08 of the Credit Agreement (or any Equivalent Provision thereof), and the consent of each other Authorized Representative if and to the extent required by (and in accordance with) the applicable Other First Lien Agreement, and except as otherwise provided in any applicable Intercreditor Agreement. The Collateral Agent may conclusively rely on a certificate of an officer of the Borrower as to whether any amendment contemplated by this Section7.09(b) is permitted."
"(c) Notwithstanding anything to the contrary contained herein, the Collateral Agent may grant extensions of time or waivers of the requirement for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Pledgors on such date) where it reasonably determines, in consultation with the Borrower, that perfection or obtaining of such items cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or any other Loan Document."
"SECTION 7.10WAIVER 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 AGREEMENT OR ANY OTHER LOAN DOCUMENT (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.10."
"(a) This Agreement and the pledges made by the Pledgors herein and all other security interests granted by the Pledgors hereby shall automatically terminate and be released upon the occurrence of the Termination Date or, if any Other First Lien Obligations are outstanding on the Termination Date, the date when all Other First Lien Obligations (in each case other than contingent or unliquidated obligations or liabilities not then due and any other obligations that, by the terms of any Other First Lien Agreements, are not required to be paid in full prior to termination and release of the Collateral) have been paid in full and the Secured Parties have no further commitment to extend credit under any Other First Lien Agreement."
"(c) (i) Upon any sale or other transfer by any Pledgor of any Collateral that is not prohibited by the Credit Agreement or any Other First Lien Agreement to any person that is not a Pledgor, (ii)upon the effectiveness of any written consent to the release of the security interest granted hereby in any Collateral pursuant to Section9.08 of the Credit Agreement (or any Equivalent Provision thereof) and any equivalent provision of any applicable Other First Lien Agreement (in each case, to the extent required thereby), or (iii)as otherwise may be provided in any applicable Intercreditor Agreement or any Master Lease Intercreditor Agreement, the security interest in such Collateral shall be automatically released, all without delivery of any instrument or performance of any act by any party."
"(d) Solely with respect to the Credit Agreement Secured Obligations, a Pledgor shall automatically be released from its obligations hereunder and/or the security interests in any Collateral securing the Credit Agreement Secured Obligations shall in each case be automatically released upon the occurrence of any of the circumstances set forth in Section9.18 of the Credit Agreement (or any Equivalent Provision thereof) without delivery of any instrument or performance of any act by any party, and all rights to such Collateral shall revert to any applicable Pledgor."
"(g) In connection with any termination or release pursuant to this Section7.15, the Collateral Agent shall execute and deliver to any Pledgor, at such Pledgors expense, all documents that such Pledgor shall reasonably request to evidence such termination or release (including, without limitation, UCC termination statements), and will duly assign and transfer to such Pledgor, such of the Pledged Collateral that may be in the possession of the Collateral Agent and has not theretofore been sold or otherwise applied or released pursuant to this Agreement. Any execution and delivery of documents pursuant to this Section7.15 shall be without recourse to or warranty by the Collateral Agent. In connection with any release pursuant to this Section7.15, the Pledgors 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 the Collateral Agent) prepared by the Borrower pursuant to this Section7.15, the Collateral Agent shall execute, deliver or acknowledge such instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Agreement. The Pledgors agree to pay all reasonable and documented out-of-pocket expenses incurred by the Collateral Agent (and its representatives and counsel) in connection with the execution and delivery of such release documents or instruments."
"(e) any approval of the Gaming Authorities (including, for the avoidance of doubt, the Kentucky Gaming Authorities, the Mississippi Gaming Authorities and the Nevada Gaming Authorities, as applicable) of this Agreement or the pledge of the Pledged Stock of any person hereunder, or any amendment hereto, does not constitute approval, either express or implied, of the Collateral Agent to take any actions or exercise any remedies provided for in this Agreement, for which separate approval by the Gaming Authorities (including, for the avoidance of doubt, the Kentucky Gaming Authorities, the Mississippi Gaming Authorities and the Nevada Gaming Authorities, as applicable) may be required by the Gaming Laws;"
"(f) the Collateral Agent, the Secured Parties and their respective successors and assigns are subject to being called forward by the Gaming Authorities (including, for the avoidance of doubt, the Kentucky Gaming Authorities, the Mississippi Gaming Authorities and the Nevada Gaming Authorities, as applicable) in their sole and absolute discretion, for licensing or a finding of suitability or qualification; and"
"(a) Notwithstanding anything herein to the contrary, (i)the Liens and security interests granted to the Collateral Agent for the benefit of the Secured Parties pursuant to this Agreement and (ii)the exercise of any right or remedy by the Collateral Agent hereunder or the application of proceeds (including insurance and condemnation proceeds) of any Collateral, 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 Agreement, the terms of such applicable Intercreditor Agreement shall govern."
"A. Reference is made to the Credit Agreement, dated as of October6, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the Credit Agreement), among the Borrower, the Lenders party thereto from time to time, Credit Suisse AG, Cayman Islands Branch, as administrative agent, and the other parties party thereto."
"SECTION1\. In accordance with Section7.16 of the Collateral Agreement, subject to Section7.19 and 7.24 of the Collateral Agreement, the New Subsidiary by its signature below becomes a Subsidiary Loan Party and a Pledgor under the Collateral Agreement with the same force and effect as if originally named therein as a Subsidiary Loan Party and a Pledgor, and the New Subsidiary hereby (a)agrees to all the terms and provisions of the Collateral Agreement applicable to it as a Subsidiary Loan Party and a Pledgor thereunder and (b)represents and warrants that the representations and warranties made by it as a Pledgor thereunder (it being understood that such representations do not include any representations made only as of the Closing Date or another date prior to the date hereof) are true and correct in all material respects on and as of the date hereof. In furtherance of the foregoing, subject to any approvals required"
"(i) represents that it has been duly authorized by the New Secured Parties to become a party to the Collateral Agreement on behalf of the New Secured Parties under that certain [DESCRIBE OPERATIVE AGREEMENT] (the New Agreement and the obligations under the New Agreement, the New Secured Obligations) and to act as the Authorized Representative for the New Secured Parties;"
"SECTION 2. Grant of Security Interest. As security for the payment and performance, as the case may be, in full of the Secured Obligations when due, each Pledgor pursuant to the Collateral Agreement did, and hereby does, grant to the Collateral Agent, for the benefit of the Secured Parties, a security interest in all of such Pledgors right, title and interest in or to any and all of the following assets now owned or at any time hereafter acquired by such Pledgor or in which such Pledgor now has or at any time in the future may acquire any right, title or interest (collectively, the IP Collateral):"
"SECTION 6. Governing Law. THIS AGREEMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY PRINCIPLE OF CONFLICTS OF LAW THAT COULD REQUIRE THE APPLICATION OF ANY OTHER LAW."
"WHEREAS, each Guarantor will obtain benefits from the incurrence of Loans and the issuance of and participation in Letters of Credit under the Credit Agreement and from the provision of financial accommodations under Secured Cash Management Agreements and Secured Swap Agreements, and accordingly desires to execute this Guaranty in order to satisfy the condition described in the second preceding paragraph and to induce the Lenders to make Loans and to participate in Letters of Credit under the Credit Agreement and for each L/C Issuer to issue Letters of Credit under the Credit Agreement and the Cash Management Banks and Hedge Banks to provide Secured Cash Management Agreements and Secured Swap Agreements to the Loan Parties."
"(c) No Limitations. Except for termination of a Guarantors obligations hereunder as expressly provided for in Section5(i), the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise (other than defense of payment in full in cash"
"or immediately available funds of the Guaranteed Obligations). Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by: (i)the failure of the Collateral Agent or any other Secured Party to assert any claim or demand or to exercise or enforce any right or remedy under the provisions of any Loan Document, Secured Swap Agreement, Secured Cash Management Agreement or otherwise; (ii)any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document, Secured Swap Agreement, Secured Cash Management Agreement or any other agreement, including with respect to any other Guarantor under this Guaranty (other than the payment in full in cash or immediately available funds of all the Guaranteed Obligations); (iii) the release of, or the failure to perfect any security interest in, or the exchange, substitution, release or any impairment of, any security held by the Collateral Agent or any other Secured Party for the Guaranteed Obligations; (iv)any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; (v)any other act or omission that may or might in any manner or to any extent vary the risk of any Guarantor or otherwise operate as a discharge of any Guarantor as a matter of law or equity (other than the payment in full in cash or immediately available funds of all the Guaranteed Obligations); (vi) any illegality, lack of validity or unenforceability of any Guaranteed Obligation; (vii)any change in the corporate existence, structure or ownership of the Borrower, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Borrower or its assets or any resulting release or discharge of any Guaranteed Obligation (other than the payment in full in cash or immediately available funds of all the Guaranteed Obligations); (viii) the existence of any claim, set-off or other rights that the Guarantor may have at any time against the Borrower, the Collateral Agent, any other Secured Party or any other corporation or person, whether in connection herewith or any unrelated transactions, provided that nothing herein will prevent the assertion of any such claim by separate suit or compulsory counterclaim; and (ix)any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by the Collateral Agent or any other Secured Party that might otherwise constitute a defense to, or a legal or equitable discharge of, the Borrower or any Guarantor or any other guarantor or surety (other than the payment in full in cash or immediately available funds of all the Guaranteed Obligations). To the fullest extent permitted by applicable law, (i)each Guarantor expressly authorizes the Secured Parties to take and hold security for the payment and performance of the Guaranteed Obligations, to exchange, waive or release any or all such security (with or without consideration), to enforce or apply such security and direct the order and manner of any sale thereof in their sole discretion or to release or substitute any one or more other guarantors or obligors upon or in respect of the Guaranteed Obligations, all without affecting the obligations of any Guarantor hereunder, (ii)each Guarantor waives any defense based on or arising out of any defense of any other Loan Party or the unenforceability of the Guaranteed Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Loan Party, other than the payment in full in cash or immediately available funds of all the Guaranteed Obligations, (iii)the Collateral Agent and the other Secured Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Guaranteed Obligations, make any other accommodation with the Borrower or any other Loan Party or exercise any other right or remedy available to them against the Borrower or any other Loan Party, without affecting or impairing in any way the liability of any Guarantor hereunder except to the extent the Guaranteed Obligations have been paid in full in cash or immediately available funds, and (iv)each Guarantor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Guarantor against any other Loan Party, as the case may be, or any security."
"(f) Information. Each Guarantor assumes all responsibility for being and keeping itself informed of the Borrowers and each other Loan Partys financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that such Guarantor assumes and incurs hereunder, and agrees that neither the Collateral Agent nor any other Secured Party will have any duty to advise such Guarantor of information known to it or any of them regarding such circumstances or risks."
"(f) Successors and Assigns. Whenever in this Guaranty any Guarantor is referred to, such reference shall be deemed to include the permitted successors and assigns of such party (in accordance with the terms of the Credit Agreement); and all covenants, promises and agreements by any Guarantor that are contained in this Guaranty shall bind and inure to the benefit of its respective permitted successors and assigns."
"(h) Collateral Agents Fees and Expenses, Indemnification. The Guarantors jointly and severally agree to pay, or cause to be paid, on demand, and to save the Secured Parties harmless against liability for, any and all reasonable and documented costs and expenses incurred or expended by any Secured Party in connection with this Guaranty, all in accordance with and subject to the terms of Section9.05 of the Credit Agreement."
"(j) Counterparts. This Guaranty may be executed in any number of counterparts, each of which shall collectively and separately constitute one and the same agreement. Delivery of an executed signature page to this Guaranty by facsimile or electronic transmission shall be as effective as delivery of a manually signed counterpart of this Guaranty."
"11. | RIGHT OF SET OFF. ---|--- If an Event of Default shall have occurred and be continuing, each Lender 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 obligations at any time owing by such Lender to or for the credit or the account of any Guarantor against any of and all the obligations of such Guarantor now or hereafter existing under this Guaranty owed to such Lender, irrespective of whether or not such Lender shall have made any demand under this Guaranty and although such obligations may be unmatured. The rights of each Lender under this Section11 are in addition to other rights and remedies (including other rights of set-off) that such Lender may have."
"BRANCH, |  | as Collateral Agent | | |  | By: |  |  |  | |  | Name: |  | |  | Title: | | |  | By: |  |  |  | |  | Name: |  | |  | Title: "
"(b) It is the intention of the First Lien Secured Parties of each Series that the holders of First Lien Obligations of such Series (and not the First Lien Secured Parties of any other Series) bear the risk of (i)any determination by a court of competent jurisdiction that (x)any of the First Lien Obligations of such Series are unenforceable under applicable law or are subordinated to any other obligations (other than another Series of First Lien Obligations), (y)any of the First Lien Obligations of such Series do not have an enforceable security interest in any of the Collateral securing any other Series of First Lien Obligations and/or (z)any intervening security interest exists securing any other obligations (other than another Series of First Lien Obligations, and after giving effect to any applicable intercreditor agreements (other than this Agreement)) on a basis ranking prior to the security interest of such Series of First Lien Obligations but junior to the security interest of any other Series of First Lien Obligations or (ii)the existence of any Collateral for any other Series of First Lien Obligations that is not Shared Collateral (any such condition referred to in the foregoing clauses (i)or (ii) with respect to any Series of First Lien Obligations, an Impairment of such Series). In the event of any Impairment with respect to any Series of First Lien Obligations, the results of such Impairment shall be borne solely by the holders of such Series of First Lien Obligations, and the rights of the holders of such Series of First Lien Obligations (including, without limitation, the right to receive distributions in respect of such Series of First Lien Obligations pursuant to Section2.01) set forth herein shall be modified to the extent necessary so that the effects of such Impairment are borne solely by the holders of the Series of such First Lien Obligations subject to such Impairment. Additionally, in the event the First Lien Obligations of any Series are modified pursuant to applicable law (including, without limitation, pursuant to Section1129 of the Bankruptcy Code), any reference to such First Lien Obligations or the Secured Credit Documents governing such First Lien Obligations shall refer to such obligations or such documents as so modified."
"(2) any liquidation, dissolution, marshalling of assets or liabilities or other winding up of or relating to any Grantor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency (except for any voluntary liquidation, dissolution or other winding up to the extent permitted by the applicable Secured Credit Documents); or"
"Possessory Collateral means any Shared Collateral in the possession of the Collateral Agent (or its agents or bailees), to the extent that possession thereof perfects a Lien thereon under the Uniform Commercial Code of any jurisdiction or otherwise. Possessory Collateral includes, without limitation, any Certificated Securities, Promissory Notes, Instruments, and Chattel Paper, in each case, delivered to or in the possession of the Collateral Agent under the terms of the First Lien Security Documents. All capitalized terms used in this definition and not defined elsewhere in this Agreement have the meanings assigned to them in the New York UCC."
"Refinance means, in respect of any indebtedness, to refinance, extend, renew, defease, amend, increase, modify, supplement, restructure, refund, replace or repay, or to issue other indebtedness or enter alternative financing arrangements, in exchange or replacement for such indebtedness (in whole or in part), including by adding or replacing lenders, creditors, agents,"
"Shared Collateral means, at any time, Collateral in which the holders of two or more Series of First Lien Obligations (or their respective Authorized Representatives or the Collateral Agent on behalf of such holders) hold a valid and perfected security interest or Lien at such time. If more than two Series of First Lien Obligations are outstanding at any time and the holders of less than all Series of First Lien Obligations hold a valid and perfected security interest in or Lien on any Collateral at such time, then such Collateral shall constitute Shared Collateral for those Series of First Lien Obligations that hold a valid security interest in or Lien on such Collateral at such time and shall not constitute Shared Collateral for any Series which does not have a valid and perfected security interest in or Lien on such Collateral at such time."
"(d) Each of the First Lien Secured Parties agrees that it will not (and hereby waives any right to) contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the perfection, priority, validity or enforceability of a Lien held by or on behalf of any of the First Lien Secured Parties in all or any part of the Collateral, or the provisions of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair (i)the rights of any of the Collateral Agent or any Authorized Representative to enforce this Agreement or (ii)the rights of any First Lien Secured Party from contesting or supporting any other Person in contesting the enforceability of any Lien purporting to secure First Lien Obligations constituting unmatured interest pursuant to Section502(b)(2) of the Bankruptcy Code."
"(b) Each First Lien Secured Party agrees that the Collateral Agent may enter into any amendment (and, upon request by the Collateral Agent, each Authorized Representative shall sign a consent to such amendment) to any First Lien Security Document (including, without limitation, to release Liens securing any Series of First Lien Obligations) so long as such amendment, subject to clause (d)below, is not prohibited by the terms of each then extant Secured Credit Document. Additionally, each First Lien Secured Party agrees that the Collateral Agent may enter into any amendment (and, upon request by the Collateral Agent, each Authorized Representative shall sign a consent to such amendment) to any First Lien Security Document solely as such First Lien Security Document relates to a particular Series of First Lien Obligations (including, without limitation, to release Liens securing such Series of First Lien Obligations) so long as (x)such amendment is in accordance with the Secured Credit Document pursuant to which such Series of First Lien Obligations was incurred and (y)such amendment does not adversely affect the rights of the First Lien Secured Parties of any other Series."
"SECTION 2.07Insurance. As between the First Lien Secured Parties, the Collateral Agent, acting at the direction of the Applicable Authorized Representative, shall have the right to adjust or settle any insurance policy or claim covering or constituting Shared Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding affecting the Shared Collateral."
"(a) Each of the First Lien Secured Parties hereby irrevocably appoints Credit Suisse AG, Cayman Islands Branch to act on its behalf as the Collateral Agent hereunder and under each of the other First Lien Security Documents and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms hereof or thereof, including for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any Grantor to secure any of the First Lien Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Collateral Agent and any co-agents, sub-agents and attorneys-in-fact appointed by the Collateral Agent pursuant to Section4.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under any of the First Lien Security Documents, or for exercising any rights and remedies thereunder at the direction of the Applicable Authorized Representative, shall be entitled to the benefits of all provisions of this Article IV, Section8.07, and Section9.05 of the Credit Agreement (or the Equivalent Provision thereof) and the equivalent provision of any Other First Lien Agreement (as though such co- agents, sub-agents and attorneys-in-fact were the Collateral Agent under the First Lien Security Documents) as if set forth in full herein with respect thereto."
"(ii) 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 First Lien Security Documents that the Collateral Agent is required to exercise as directed in writing by the Applicable Authorized Representative; provided that the Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any First Lien Security Document or applicable law;"
(iv) shall not be liable for any action taken or not taken by it (i)with the consent or at the request of the Applicable Authorized Representative or (ii)in the absence of its own gross negligence or willful misconduct or (iii)in reliance on a certificate of an authorized officer of the Borrower stating that such action is not prohibited by the terms of this Agreement. The Collateral Agent shall be deemed not to have knowledge of any Event of Default under any Series of First Lien Obligations unless and until notice describing such Event of Default is given to the Collateral Agent by the Authorized Representative of such First Lien Obligations or the Borrower;
"(vii) with respect to the Credit Agreement, any Other First Lien Agreement or any First Lien Security Document, may conclusively assume that the Grantors have complied with all of their obligations thereunder unless advised in writing by the Authorized Representative thereunder to the contrary specifically setting forth the alleged violation; and"
"SECTION 5.07Governing Law. THIS AGREEMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY PRINCIPLE OF CONFLICTS OF LAW THAT COULD REQUIRE THE APPLICATION OF ANY OTHER LAW."
(b) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
"SECTION 5.14Junior Lien Intercreditor Agreements. The Collateral Agent, the Administrative Agent, the Initial Other Authorized Representative and each other Authorized Representative hereby appoint the Collateral Agent to act as agent on their behalf pursuant to and in connection with the execution of any intercreditor agreements governing any Liens on the Shared Collateral junior to Liens securing the First Lien Obligations that are incurred on or following the date hereof in compliance with the Secured Credit Documents. The Collateral Agent, solely in such capacity under any such intercreditor agreements, shall take direction from the Applicable Authorized Representative with respect to the Shared Collateral."
"Credit Agreement Obligations shall mean all Loan Obligations (as defined in the Credit Agreement), and all other obligations to pay principal, premium, if any, and interest, fees or other amounts (including any interest, fees or other amounts accruing after the commencement of any Insolvency or Liquidation Proceeding, regardless of whether allowed or allowable in such proceeding) when due and payable, and all other amounts due or to become due under or in connection with the Credit Agreement Documents and the performance of all other Obligations of the obligors thereunder to the lenders and agents under the Credit Agreement Documents, according to the respective terms thereof."
Other Second Priority Lien Obligations means (a)all [Obligations] as defined in the Initial Second Priority Collateral Agreement (other than Initial Second Priority Claims) and (b)any other indebtedness or Obligations (other than the Initial Second Priority Claims) of the Grantors that are to be equally and ratably secured with the Initial Second Priority Claims and are designated by the Borrower as Other Second Priority Lien Obligations hereunder.
"Senior Lender Claims shall mean (a)the Credit Agreement Secured Obligations, including all accrued and unpaid interest whether or not such interest is allowed or allowable in any Insolvency or Liquidation Proceeding, (b)the Other First Priority Lien Obligations, including all accrued and unpaid interest whether or not such interest is allowed or allowable in any Insolvency or Liquidation Proceeding and (c)any other Senior Lender Hedging Obligations and Senior Lender Cash Management Obligations (which shall be deemed to be part of the Series of Other First Priority Lien Obligations to which they relate to the extent provided in the applicable Other First Priority Lien Obligations Credit Document)."
"Senior Lender Documents shall mean the Credit Agreement Documents, the Other First Priority Lien Obligations Credit Documents, the Senior Collateral Documents and each of the other agreements, documents and instruments (including each agreement, document or instrument providing for or evidencing a Senior Lender Hedging Obligation or Senior Lender Cash Management Obligation) providing for, evidencing or securing any Senior Lender Claim, including, without limitation, any Credit Agreement Secured Obligations and any other related document or instrument executed or delivered pursuant to any such document at any time or otherwise evidencing or securing any Obligation arising under any such document."
"1.2 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 will shall be construed to have the same meaning and effect as the word shall. The word or shall not be exclusive. 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, amended and restated, supplemented or otherwise modified in accordance with this Agreement, (b)any reference herein to any Person shall be construed to include such Persons successors and assigns, (c)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, (d)all references herein to Sections shall be construed to refer to Sections of this Agreement and (e)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."
"2.5 Waiver of Marshalling. Until the Discharge of Senior Lender Claims, each Second Priority Agent, on behalf of itself and the applicable Second Priority Secured Parties, agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of, any marshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Common Collateral or any other similar rights a junior secured creditor may have under applicable law."
"by the Second Priority Agents or the Second Priority Secured Parties and without affecting the provisions hereof, except as otherwise expressly set forth herein. The Lien priorities provided for in Section2.1 shall not be altered or otherwise affected by any amendment, restatement, amendment and restatement, supplement or other modification, or any Refinancing, of either the Senior Lender Claims or the Second Priority Claims, or any portion thereof. As between the Borrower and the other Grantors and the Second Priority Secured Parties, the foregoing provisions will not limit or otherwise affect the obligations of the Borrower and the other Grantors contained in any Second Priority Document with respect to the incurrence of additional Senior Lender Claims."
"(a) So long as the Discharge of Senior Lender Claims has not occurred, without the prior written consent of the First Lien Agents, no Second Priority Collateral Document may be amended, supplemented or otherwise modified or entered into to the extent such amendment, supplement or modification, or the terms of any new Second Priority Collateral Document, would be prohibited by or inconsistent with any of the terms of this Agreement. So long as any Second Priority Claims remain outstanding, without the prior written consent of the Second Priority Agents, no Senior Collateral Document may be amended, supplemented or otherwise modified or entered into to the extent such amendment, supplement or modification, or the terms of any new Senior Collateral Document, would be prohibited by or inconsistent with any of the terms of this Agreement. Each Second Priority Agent agrees that each applicable Second Priority Collateral Document executed as of the date hereof shall include the following language (or language to similar effect approved by the First Priority Designated Agent):"
"(b) In the event that the First Lien Agents or the Senior Lenders enter into any amendment, waiver or consent in respect of or replace any Senior Collateral Document for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any Senior Collateral Document or changing in any manner the rights of the First Lien Agents, the Senior Lenders, the Borrower or any other Grantor thereunder (including the release of any Liens in Senior Lender Collateral), then such amendment, waiver or consent shall apply automatically to any comparable provision of each Comparable Second Priority Collateral Document without the consent of any Second Priority Agent or any Second Priority Secured Party and without any action by any Second Priority Agent or any Second Priority Secured Party; provided, that no such amendment, waiver or consent shall have the effect of (i)removing assets subject to the Lien of the Second Priority Collateral Documents, except to the extent that a release of such Lien is permitted by Section5.1 and provided that there is a corresponding release of the Liens securing the Senior Lender Claims on such removed assets, (ii)imposing duties on any Second Priority Agent without its consent, (iii)permitting other Liens on the Common Collateral not permitted under the terms of the Second Priority Documents or Section6 or (iv)materially adversely affecting the rights of the Second Priority Secured Parties or the interests of the Second Priority Secured Parties in the Second Priority Collateral and not the other creditors of the Borrower or the other applicable Grantor, as the case may be, that have a security interest in the affected collateral in a like or similar manner (without regard to the fact that the Lien of such Senior Collateral Document is senior to the Lien of the Comparable Second Priority Collateral Document). The relevant First Lien Agent shall give written notice of such amendment, waiver or consent to each Second Priority Agent within ten (10)days after the effective date of such amendment, waiver or consent; provided that the failure to give such notice shall not affect the effectiveness of such amendment, waiver or consent with respect to the provisions of any Second Priority Collateral Document as set forth in this Section5.3(b)."
"(a) Upon the Discharge of Senior Lender Claims, the Second Priority Designated Agent agrees to hold the Pledged Collateral that is part of the Common 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 other Second Priority Agents and any assignee solely for the purpose of perfecting the security interest granted in such Pledged Collateral pursuant to the applicable Second Priority Collateral Agreement, subject to the terms and conditions of this Section5.6."
"(d) The Second Priority Designated Agent shall not have by reason of the Second Priority Collateral Documents or this Agreement or any other document a fiduciary relationship in respect of the other Second Priority Agents (or the Second Priority Secured Parties for which such other Second Priority Agents are agents) and the other Second Priority Agents hereby waive and release the Second Priority Designated Agent from all claims and liabilities arising pursuant to the Second Priority Designated Agents role under this Section5.6, as agent and gratuitous bailee and/or gratuitous agent with respect to the Common Collateral."
"(a) Notwithstanding any other provisions contained in this Agreement, if an Event of Default (as defined in the Initial Second Priority Agreement or any other Second Priority Document, as applicable) exists on the date of Discharge of Senior Lender Claims, the Second Priority Liens on the Second Priority Collateral securing the Second Priority Claims relating to such Event of Default will not be released, except to the extent such Second Priority Collateral or any portion thereof was disposed of in order to repay Senior Lender Claims secured by such Second Priority Collateral, and thereafter the applicable Second Priority Agent will have the right to foreclose upon such Second Priority Collateral (but in such event, the Liens on such Second Priority Collateral securing the applicable Second Priority Claims will be released when such Event of Default and all other Events of Default under the Initial Second Priority Agreement or any other Second Priority Document, as applicable, cease to exist)."
"(a) Without prejudice to the enforcement of any of the Senior Lenders remedies under the Senior Lender Documents, this Agreement, at law or in equity or otherwise, the Senior Lenders agree at any time following the earliest to occur of (i)an acceleration of any of the Senior Lender Claims in accordance with the terms of the applicable Senior Lender Documents, (ii)a payment default under any Senior Lender Document that has not been cured or waived by the applicable Senior Lenders within 90days of the occurrence thereof or (iii)the commencement of any Insolvency or Liquidation Proceeding with respect to any Grantor, the Senior Lenders will offer the Second Priority Secured Parties the option to purchase the entire aggregate amount (but not less than the entirety) of outstanding Senior Lender Claims (including unfunded commitments under any Senior Lender Document that have not been terminated at such time) at the Purchase Price without warranty or representation or recourse except as provided in Section5.8(d), on a pro rata basis among the Senior Lenders, which offer may be accepted by less than all of the Second Priority Secured Parties so long as all the accepting Second Priority Secured Parties shall when taken together purchase such entire aggregate amount as set forth above."
"(b) The Purchase Price will equal the sum of (1)the full amount of all Senior Lender Claims then-outstanding and unpaid at par (including principal, accrued but unpaid interest and fees and any other unpaid amounts, including breakage costs and, in the case of any secured hedging obligations, the amount that would be payable by the relevant Grantor thereunder if such Grantor were to terminate the hedge agreement in respect thereof on the date of the purchase or, if not terminated, an amount determined by the relevant Senior Lender to be necessary to collateralize its credit risk arising out of such agreement, but excluding any prepayment penalties or premiums), (2)the cash collateral to be furnished to the Senior Lenders providing letters of credit under the Senior Lender Documents in such amount (not to exceed 103% thereof) as such Senior Lenders determine is reasonably necessary to secure such Senior"
"(d) The purchase and sale of the Senior Lender Claims under this Section5.8 will be without recourse and without representation or warranty of any kind by the Senior Lenders, except that the Senior Lenders shall severally and not jointly represent and warrant to the Second Priority Secured Parties that on the date of such purchase, immediately before giving effect to the purchase;"
"(B) each Senior Lender owns the Senior Lender Claims purported to be owned by it free and clear of any Liens (other than participation interests not prohibited by the Senior Lender Documents, in which case the Purchase Price will be appropriately adjusted so that the Second Priority Secured Parties do not pay amounts represented by participation interests to the extent that the Second Priority Secured Parties expressly assume the obligations under such participation interests)."
"6.6 Waivers. Until the Discharge of Senior Lender Claims has occurred, each Second Priority Agent, on behalf of itself and each applicable Second Priority Secured Party, (a)will not assert or enforce any claim under Section506(c) of the United States Bankruptcy Code senior to or on a parity with the Liens on the Common Collateral securing the Senior Lender Claims for costs or expenses of preserving or disposing of any Common Collateral and (b)waives any claim it may now or hereafter have arising out of (i)any actions which the First Priority Designated Agent (or any of its representatives) takes or omits to take (including actions with respect to the creation, perfection or continuation of Liens on any Common Collateral, actions with respect to the foreclosure upon, disposition, release or depreciation of, or failure to realize upon, any of the Common Collateral and actions with respect to the collection of any claim for all or any part of the Senior Lender Claims from any account debtor, guarantor or any other party) in accordance with any relevant Senior Collateral Documents or any other agreement related thereto, or to the collection of the Senior Lender Claims or the valuation, use, protection or release of any security for the Senior Lender Claims and (ii)the election by any Senior Lender of the application of Section1111(b)(2) of the Bankruptcy Code."
"8.2 Continuing Nature of this Agreement; Severability. Subject to Section6.4 and Section5.7(c), this Agreement shall continue to be effective until the Discharge of Senior Lender Claims shall have occurred or such later time as all the Obligations in respect of the Second Priority Claims shall have been paid in full. This is a continuing agreement of lien subordination and the Senior Lenders may continue, at any time and without notice to any Second Priority Agent or any Second Priority Secured Party, to extend credit and other financial accommodations and lend monies to or for the benefit of the Borrower or any other Grantor constituting Senior Lender Claims in reliance hereon. The terms of this Agreement shall survive, and shall continue in full force and effect, in any Insolvency or Liquidation Proceeding. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall not invalidate 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."
"8.15 Authorization. By its signature, each Person executing this Agreement on behalf of a party hereto represents and warrants to the other parties hereto that it is duly authorized to execute this Agreement. Each First Lien Agent represents and warrants that this Agreement is binding upon the applicable Senior Lenders. Each Second Priority Agent represents and warrants that this Agreement is binding upon the applicable Second Priority Secured Parties."
"8.16 No Third Party Beneficiaries; Successors and Assigns. This Agreement and the rights and benefits hereof shall inure to the benefit of, and be binding upon, each of the parties hereto and their respective successors and assigns and shall inure to the benefit of each of, and be binding upon, the holders of Senior Lender Claims and Second Priority Claims. No other Person shall have or be entitled to assert rights or benefits hereunder."
"| | ---|---|--- [NEW AGENT] as New Agent | By: |  |  |  | Name: |  | Title: CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH as Credit Agreement Agent | By: |  |  |  | Name: |  | Title: | By: |  |  |  | Name: |  | Title: [INITIAL SECOND PRIORITY AGENT] as Initial Second Priority Agent | By: |  |  |  | Name: |  | Title: CEOC, LLC as Borrower | By: |  |  |  | Name: |  | Title: "
"SECTION 3.01 THIS AGREEMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY PRINCIPLE OF CONFLICTS OF LAW THAT COULD REQUIRE THE APPLICATION OF ANY OTHER LAW."
"| | ---|---|--- [NEW AGENT] as New Agent | By: |  |  |  | Name: |  | Title: CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH as Credit Agreement Agent | By: |  |  |  | Name: |  | Title: | By: |  |  |  | Name: |  | Title: [INITIAL SECOND PRIORITY AGENT] as Initial Second Priority Agent | By: |  |  |  | Name: |  | Title: CEOC, LLC as Borrower | By: |  |  |  | Name: |  | Title: "
"WHEREAS, on January17, 2017, the Bankruptcy Court entered the Order Confirming Debtors Third Amended Joint Plan of Reorganization Pursuant to Chapter 11 of the Bankruptcy Code [Docket No.6334] (the Confirmation Order) confirming the Debtors Third Amended Joint Plan of Reorganization Pursuant to Chapter 11 of the Bankruptcy Code [Docket No.6318] (including all exhibits and supplements thereto, the Plan);"
" | e. | Final Order means an order or judgment of a court of competent jurisdiction that has been entered on the docket maintained by the clerk of such court and has not been reversed, vacated, or stayed and as to which (i)the time to appeal, petition for certiorari, or move for a new trial, reargument, or rehearing has expired and as to which no appeal, petition for certiorari, or other proceedings for a new trial, reargument, or rehearing shall then be pending or, (ii)if an appeal, writ of certiorari, new trial, reargument, or rehearing thereof has been sought, (1)such order or judgment shall have been affirmed by the highest court to which such order was appealed, certiorari shall have been denied, or a new trial, reargument, or rehearing shall have been denied or resulted in no modification of such order and (2)the time to take any further appeal, petition for certiorari, or move for a new trial, reargument, or rehearing shall have expired. ---|---|--- "
"(a) Successors and Assigns. All covenants, rights, obligations and other agreements contained in this Release by or on behalf of any of the Parties bind and inure to the benefit of such Party and its respective successors and permitted assigns, whether so expressed or not. This Release, and the rights and obligations of each Party, shall not be assigned by such Party without prior written consent of the other Parties."
"(g) Governing Law. This Release shall be construed and enforced in accordance with, and the rights of the Parties shall be governed by, the laws of the State of New York excluding choice-of-law principles of the laws of such State that would permit the application of the laws of a jurisdiction other than such State."
"(i) Specific Performance. The Parties recognize and acknowledge that a breach by such Party of any covenants or agreements contained in this Release will cause the other Parties to sustain damages for which such other Parties would not have an adequate remedy at law for money damages, and therefore each Party agrees that in the event of any such breach, the other Parties shall be entitled to the remedy of specific performance of such covenants and agreements and injunctive and other equitable relief in addition to any other remedy to which such other Parties may be entitled, at law or in equity."
"E. Pursuant to the Credit Agreement and certain collateral documents executed in connection therewith, to secure the Credit Agreement Obligations, Tenant and each other Subsidiary Loan Party granted to the Credit Agreement Collateral Agent (for the benefit of the Credit Agreement Claimholders) a subordinate and second priority security interest in and to the CPLV Lease Collateral, and a first priority security interest in all or substantially all of Tenants and such Subsidiary Loan Parties other personal property, by executing and delivering that certain Collateral Agreement, dated as of the date hereof (as amended, restated, amended and restated, supplemented, otherwise modified or replaced from time to time, the Credit Agreement Collateral Agreement), by and among CEOC Inc., CEOC, Desert Palace, each other Subsidiary Loan Party party thereto and the Credit Agreement Collateral Agent;"
"L. In consideration of the foregoing, the mutual covenants and obligations herein set forth and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, each of Landlord, the Credit Agreement Collateral Agent (for itself and on behalf of each Credit Agreement Claimholder), each Additional Tenant Financing Collateral Agent (for itself and on behalf of each Additional Tenant Financing Claimholder represented by it), Tenant and Landlord Financing Lender intending to be legally bound, hereby agrees as follows:"
"Additional Tenant Financing Debt means any Indebtedness and guarantees thereof that is incurred, issued or guaranteed by Tenant or any of its Affiliates other than the Credit Agreement Debt, which Indebtedness and guarantees are secured by the Tenant Financing Collateral (or a portion thereof); provided, however, that with respect to any such Indebtedness incurred after the date hereof (i)such Indebtedness is permitted to be incurred and secured on the basis so secured by the CPLV Lease, (ii)unless already a party with respect to that Series of Additional Tenant Financing Debt, the Tenant Financing Collateral Agent for the holders of such Indebtedness shall have become party to this Agreement pursuant to, and by satisfying the conditions set forth in, Section9.6 and (iii)each of the other requirements of Section9.6 shall have been complied with."
"Bank Product Obligations means, all obligations and liabilities (whether direct or indirect, absolute or contingent, due or to become due or now existing or hereafter incurred) of Tenant, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise, which may arise under, out of, or in connection with any treasury, investment, depository, clearing house, wire transfer, cash management or automated clearing house transfers of funds services or any related services, to any Person permitted to be a secured party in respect of such obligations under the applicable Tenant Financing Loan Documents."
"Agreement; provided that any proceeds or products of the CPLV Lease Collateral, other than any such proceeds or products thereof that (i)arise from an Enforcement Action by Landlord with respect to the CPLV Lease Collateral (but for avoidance of doubt, not Related Property) or (ii)would otherwise independently constitute Tenants Pledged Property (as defined above), shall, in each case, constitute Tenant Financing Separate Collateral and shall not constitute CPLV Lease Collateral."
"CPLV Lease Exercise Conditions means that either (i)there are no Permitted Leasehold Mortgagees (as defined in the 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 CPLV Lease, a copy of the applicable notice of default pursuant to Section17.1(c) of the CPLV Lease and the Right to Terminate Notice pursuant to Section17.1(d) of the CPLV Lease, and (solely for purposes of this clause (ii)) either of the following occurred:"
"(b) Both (1)the 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 CPLV Lease) and (2)no Permitted Leasehold Mortgagee has acted in accordance with Section17.1(f) of the CPLV Lease to obtain a New Lease (as defined in the CPLV Lease) prior to the expiration of the period described therein."
"CPLV MLSA means that certain Management and Lease Support Agreement (CPLV), dated as of the date hereof, by and among Tenant, as tenant, the Manager, the Lease Guarantor, Landlord, as landlord, and certain other parties, as amended, restated, amended and restated, supplemented or otherwise modified from time to time, and shall include any replacement thereof entered into in accordance with the CPLV Lease and, if applicable, the then existing CPLV MLSA."
(e) termination or cash collateralization (in an amount and manner reasonably satisfactory to the applicable letter of credit issuer) or the making of other arrangements satisfactory to the applicable letter of credit issuer of all letters of credit issued under the applicable Tenant Financing Documents constituting Tenant Financing Obligations of such Series.
"Discharge of Tenant Financing Obligations means, except to the extent otherwise provided in Section5.4, the Discharge of each Series of Tenant Financing Obligations has occurred; provided, that the Discharge of Tenant Financing Obligations shall be deemed not to have occurred if Tenant incurs, issues, secures or guaranties any Additional Tenant Financing Obligations substantially concurrently with the Discharge of the applicable Series of Tenant Financing Obligations and such Additional Tenant Financing Obligations have not themselves been Discharged."
"Landlord Financing SNDA shall mean that certain Subordination, Non- Disturbance and Attornment Agreement (CPLV Lease), by and between Landlord Financing Lender and Tenant, and acknowledged and agreed by Landlord, dated as of the date hereof, as the same may be amended, restated, amended and restated, supplemented or replaced or otherwise modified from time to time, to the extent the same is in effect."
"(a) any definition of or reference herein to any agreement, instrument or other document, shall be construed as referring to such agreement, instrument or other document, as amended, restated, amended and restated, supplemented or otherwise modified from time to time and any reference herein to any statute or regulations shall include any amendment, renewal, extension or replacement thereof;"
"(a) (i)the Credit Agreement Leasehold Mortgage (as in effect on the date hereof) constitutes a Permitted Leasehold Mortgage (as defined in the CPLV Lease) for all purposes under the CPLV Lease and (ii)the Credit Agreement Collateral Agent as in existence on the date hereof (on behalf of the Credit Agreement Claimholders) constitutes a Permitted Leasehold Mortgagee (as defined in the CPLV Lease) for all purposes under the CPLV Lease, with respect to Tenants initial financing under the Credit Agreement as in effect on the date of this Agreement and shall be entitled to exercise and enforce all rights and benefits of a Permitted Leasehold Mortgagee under the CPLV Lease (subject to the terms and provisions of this Agreement) so long as it is a Permitted Leasehold Mortgagee as of the date of such exercise. Landlord hereby acknowledges (A)its receipt and the sufficiency of all notices and documents required to be delivered by Tenant to Landlord with respect thereto pursuant to Section17.1(b) of the CPLV Lease and (B)any Tenant Financing Claimholder or any other Person who acquires any portion of Tenants 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 be bound by all obligations of Tenant hereunder and the other terms and conditions hereof applicable to Tenant and the terms and conditions of the CPLV Lease and Landlord Financing SNDA (and, concurrently with such acquisition, Tenant Financing Claimholder shall, or shall cause such other Person to, become party to this Agreement as Tenant by executing the joinder attached hereto and to become a party to a new Landlord Financing SNDA on terms substantially the same as the existing Landlord Financing SNDA) (for the avoidance of doubt, the obligations under this clause (B)shall be applicable regardless of whether Landlord Financing Lender sends the notice referred to in clause (A)above);"
"2.2 Relative Priorities. Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the Tenant Financing Obligations granted on the CPLV Lease Collateral or of any Liens securing the CPLV Lease Obligations granted on the CPLV Lease Collateral and notwithstanding any provision of the UCC or any other applicable law or the Tenant Financing Documents or any defect or deficiencies in, or failure to perfect or lapse in perfection of, or avoidance as a fraudulent conveyance or otherwise of, the Liens on the CPLV Lease Collateral securing the CPLV Lease Obligations, the subordination of such Liens to any other Liens, or any other circumstance whatsoever, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against Tenant, each Tenant Financing Collateral Agent, for itself and on behalf of each other Tenant Financing Claimholder represented by it, hereby agrees that:"
"or otherwise exercising rights and remedies with respect to the 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."
"(1) Subject to Section6 hereof, take any and all actions and enforce any rights available to a secured creditor with respect to the CPLV Lease Collateral in any Insolvency or Liquidation Proceeding; provided that so long as any Tenant Financing Collateral Agent or any Tenant Financing Claimholder is pursuing a Tenant Financing Permitted Action, Landlord shall not take any action intended to frustrate such action and provided further than Landlord may not complete any foreclosure prior to the satisfaction of the CPLV Lease Termination Conditions;"
"(e) Nothing in this Agreement shall prohibit the receipt by Landlord of the required payments of Rent and other amounts owed in respect of the CPLV Lease Obligations so long as such receipt is not the direct or indirect result of the exercise by Landlord of rights or remedies as a secured creditor against the CPLV Lease Collateral (including set-off and recoupment) or enforcement in contravention of this Agreement of any Lien held by Landlord or as a result of any other violation by Landlord of the express terms of this Agreement. Except as provided herein in respect of Related Property, nothing in this Agreement impairs or otherwise adversely affects any rights or remedies that any Tenant Financing Collateral Agent or any other Tenant Financing Claimholder may have with respect to the Tenant Financing Separate Collateral."
"(a) From and after the occurrence of the CPLV Lease Exercise Conditions, until the Discharge of CPLV Lease Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against Tenant, as between Tenant Financing Claimholders and Landlord, Landlord shall have the exclusive right to commence and maintain an Enforcement Action or otherwise enforce rights, exercise remedies (including set off, recoupment and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the CPLV Lease Collateral without any consultation with or the consent of the Tenant Financing Claimholders and any Enforcement Action with respect to CPLV Lease Collateral then undertaken by any Tenant Financing Collateral Agent shall thereupon immediately cease; provided, that as between Landlord and Tenant the limitations in the CPLV Lease shall govern and control. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the CPLV Lease Collateral, Landlord may enforce the provisions of the CPLV Lease Documents and exercise remedies thereunder, all in such order and in such manner as it may determine in the exercise of its sole discretion in compliance with any applicable law and the terms of the CPLV Lease Documents and without consultation with the Tenant Financing Claimholders. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of CPLV Lease Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction."
"(2) will not contest, protest, object to or take any other action that would hinder any foreclosure proceeding or action brought by Landlord or any other exercise by Landlord of any rights and remedies relating to the CPLV Lease Collateral under the CPLV Lease Documents or otherwise (including any Enforcement Action initiated by or supported by Landlord),"
"and it is hereby acknowledged and agreed that Landlord may apply any proceeds of any exercise of rights and remedies with respect to the CPLV Lease Collateral received by it against the CPLV Lease Obligations regardless of the lien priorities set forth herein, and the Tenant Financing Claimholders hereby waive any right to such proceeds."
"(5) except to the extent that such actions would adversely impact the right of Tenant, or any Replacement Tenant, to make full use of such property in the operation of the Leased Properties, bid for or purchase CPLV Lease Collateral at any public, private or judicial foreclosure upon such CPLV Lease Collateral initiated by any Landlord, or at any sale of CPLV Lease Collateral during an Insolvency or Liquidation Proceeding; and"
"(d) Solely to the extent not inconsistent with this Agreement, the Tenant Financing Collateral Agents and other Tenant Financing Claimholders may exercise rights and remedies as unsecured creditors against Tenant in accordance with the terms of the Tenant Financing Documents and applicable law; provided that (i)in the event that any Tenant Financing Claimholder becomes a judgment Lien creditor in respect of CPLV Lease Collateral as a result of its enforcement of its rights as an unsecured creditor with respect to the Tenant Financing Obligations, such judgment Lien shall be subject to the terms of this Agreement for all purposes (including in relation to the CPLV Lease Obligations) in the same manner as the other Liens securing the Tenant Financing Obligations are subject to this Agreement."
"3.3 Actions Upon Breach; Specific Performance. The parties hereto acknowledge and agree that if any Tenant Financing Claimholder or Landlord in any way takes, attempts to or threatens to take any action in contravention of the terms of the Agreement (including any attempt to realize upon or enforce any remedy with respect to this Agreement), (i) Landlords damages or the Tenant Financing Claimholders damages, as applicable, from such actions may at that time be difficult to ascertain and may be irreparable, and (ii)each Tenant Financing Claimholder or Landlord, as applicable, waives any defense that Landlord or the Tenant Financing Claimholders, as applicable, cannot demonstrate damage and/or be made whole by the awarding of damages. Each of Landlord and any Tenant Financing Collateral Agent may demand"
"injunctive relief and/or specific performance of this Agreement. Landlord and each Tenant Financing Collateral Agent, on behalf of itself and each other Tenant Financing Claimholder represented by it, hereby irrevocably waives any defense based on the adequacy of a remedy at law and any other defense which might be asserted to bar the remedy of injunctive relief and/or specific performance in any action which may be brought by Landlord or any Tenant Financing Collateral Agent or other Tenant Financing Claimholders, as the case may be. No provision of this Agreement shall constitute or be deemed to constitute a waiver by Landlord or any Tenant Financing Collateral Agent on behalf of itself and each other Tenant Financing Claimholder represented by it of any right to seek damages from any Person in connection with any breach or alleged breach of this Agreement."
"(a) So long as the Discharge of Tenant Financing Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against Tenant, unless the CPLV Lease Exercise Conditions have occurred, upon the entry and consummation of (i)any New Lease pursuant to and in accordance with Section17.1(f) of the CPLV Lease, or (ii)any transfer of Tenants Leasehold Estate to a Replacement Tenant pursuant to and in accordance with Section17.1 (d) of the CPLV Lease, Section17.1(e) of the CPLV Lease and/or Section22 of the CPLV Lease, in each case in a manner consistent with this Agreement, any proceeds from such transaction received by the Tenant Financing Collateral Agents and the other Tenant Financing Claimholders shall be applied by the applicable Tenant Financing Collateral Agent to the Tenant Financing Obligations in such order as specified in the relevant Tenant Financing Documents; provided that any CPLV Lease Collateral (but not the proceeds thereof) and, solely to the extent that such Tenant Financing Collateral Agent is reasonably capable of causing such property to be so transferred, the Related Property shall be transferred by the applicable Tenant Financing Collateral Agent to the new Tenant under the CPLV Lease (or New Lease) in accordance with the terms of Section17.1(e) or 17.(f) of the CPLV Lease. Upon the Discharge of Tenant Financing Obligations, the applicable Tenant Financing Collateral Agent shall deliver such proceeds of such CPLV Lease Collateral to Tenant, its successors or assigns from time to time, or to whomever may be lawfully entitled to receive the same."
"(b) From and after the earlier to occur of the Discharge of Tenant Financing Obligations and the CPLV Lease Exercise Conditions, so long as the Discharge of CPLV Lease Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against Tenant, any CPLV Lease Collateral or any proceeds thereof received in connection with any Enforcement Action or other exercise of remedies by Landlord shall be transferred to any new Tenant to the extent required by the CPLV Lease subject to a lien in favor of Landlord. Upon the Discharge of CPLV Lease Obligations,"
"(a) (i) Solely with respect to any deposit accounts and securities accounts constituting CPLV Lease Collateral (the Pledged Collateral) under the control (within the meaning of Section9-104 or 9-106 of the UCC) of Landlord or Landlord Financing Lender, Landlord and Landlord Financing Lender agree to also hold such deposit accounts in accordance with the terms and conditions hereof and the Landlord Financing SNDA."
"(ii) Solely with respect to any deposit accounts and securities accounts constituting CPLV Lease Collateral (the Pledged Collateral) under the control (within the meaning of Section9-104 or 9-106 of the UCC) of any Tenant Financing Collateral Agent or any Tenant Financing Claimholder, such Tenant Financing Collateral Agent and such Tenant Financing Claimholder agree to also hold control over such deposit accounts for the Landlord (or, if applicable, Landlord Financing Lender), subject to the terms and conditions of this Section5.3."
"obligations of the parties hereto from such date of reinstatement, and (i)the tenant under such New Lease shall become party hereto as Tenant and shall be treated for all purposes hereunder as Tenant and (ii)such tenant, Landlord, each Tenant Financing Collateral Agent, Landlord Financing Lender and each other party hereto shall promptly enter into such documents and agreements (including amendments or supplements to this Agreement) as any Tenant Financing Collateral Agent, Landlord or Landlord Financing Lender shall reasonably request in order to provide it the rights contemplated hereby, in each case consistent in all material respects with the terms of this Agreement. This Section5.4(a) shall survive termination of this Agreement."
"relief, action or proceeding based on a claim of a lack of adequate protection or (iii)the payment of interest, fees, expenses or other amounts to any Tenant Financing Collateral Agent or other Tenant Financing Claimholder under Section506(b) or 506(c) of the Bankruptcy Code or otherwise; provided, in each case, that (a)such adequate protection does not result in any Tenant Financing Claimholders receiving any Lien on CPLV Lease Collateral that is not subordinated to the Liens on the CPLV Lease Collateral securing the CPLV Lease Obligations in accordance with the terms of this Agreement, (b)no amounts owed by Tenant with respect to such adequate protection take priority over any claims under the CPLV Lease that may arise prior to any rejection of the CPLV Lease and (c)Tenant Financing Collateral Agent is a Permitted Leasehold Mortgagee."
"(b) Each Tenant Financing Representative, on behalf of itself and the Tenant Financing Claimholders, agrees that it shall not object to or contest, or support any other Person objecting to or contesting, in each case to the extent that such actions are not inconsistent with this Agreement, (i)any request by Landlord for adequate protection under Bankruptcy Law; or (ii)any objection by Landlord to any motion, relief, action or proceeding based on a claim of a lack of adequate protection or (iii)the payment of interest, fees, expenses or other amounts to Landlord under Section506(b) or 506(c) of the Bankruptcy Code or otherwise."
"To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that the claims of Landlord and the Tenant Financing Claimholders in respect of the CPLV Lease Collateral constitute only one secured claim (rather than separate classes of senior and junior secured claims), then each of the parties hereto hereby acknowledges and agrees that all distributions shall be made as contemplated hereunder as if there were separate classes of secured claims against Tenant in respect of the CPLV Lease Collateral."
"6.7 Effectiveness in Insolvency or Liquidation Proceedings. Each party hereto acknowledge that this Agreement is a subordination agreement under Section510(a) of the Bankruptcy Code, which will be effective before, during and after the commencement of an Insolvency or Liquidation Proceeding. All references in this Agreement to Tenant will include such Person as a debtor- in-possession and any receiver or trustee for such Person in an Insolvency or Liquidation Proceeding."
"(c) except as otherwise expressly set forth in this Agreement, any exchange of any security interest in any CPLV Lease Collateral or any other collateral, or any amendment, waiver or other modification, whether in writing or by course of conduct or otherwise, of all or any of the CPLV Lease Obligations or Tenant Financing Obligations or any guarantee thereof;"
"8.1 Tenant Financing Claimholder. Landlord Financing Lender and Landlord acknowledge and agree that any Tenant Financing Collateral Agent or any other Person who acquires any portion of Tenants leasehold 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 such leasehold interest Leased Property shall be entitled, upon an assumption of Tenants rights and obligations under the CPLV Lease, to exercise and enforce all rights and benefits of Tenant under, and subject to, the Landlord Financing SNDA or any other any subordination, nondisclosure and attornment agreement or similar agreement entered into between Landlord Financing Lender or any related party and Tenant. If a New Lease is entered into pursuant to Section17.1(f) of the CPLV Lease, Landlord Financing Lender , at the cost and expense of Tenant, shall enter into new subordination, nondisclosure and attornment agreements or similar agreements with the tenant under such New Lease in substantially the same forms and substance as the corresponding agreement that were entered into with respect to the CPLV Lease."
"9.2 Effectiveness; Continuing Nature of this Agreement; Severability. This Agreement shall become effective when executed and delivered by the parties hereto. Each of Landlord and each Tenant Financing Collateral Agent, on behalf of itself and each other Tenant Financing Claimholder represented by it, hereby waives any right it may have under applicable law to revoke this Agreement or any of the provisions of this Agreement. The terms of this Agreement shall survive, and shall continue in full force and effect, in any Insolvency or Liquidation Proceeding. 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. The parties hereto shall endeavor in good faith negotiations to replace any invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to those of the invalid, illegal or unenforceable provisions. All references to Tenant shall include Tenant as debtor and debtor-in-possession and any receiver, trustee or similar person for Tenant in any Insolvency or Liquidation Proceeding. This Agreement shall terminate and be of no further force and effect on the earlier to occur of (x)the date on which there has been a Discharge of CPLV Lease Obligations and (y)the date on which there has been a Discharge of Tenant Financing Obligations, in each case, subject to Section5.4 and Section6.4; provided, however, that no termination shall relieve any party of its obligations incurred hereunder prior to the date of termination."
"9.3 Amendments; Waivers. No amendment, modification or waiver of any of the provisions of this Agreement by any party hereto shall be deemed to be made unless the same shall be in writing signed on behalf of each party hereto or its authorized agent and each waiver, if any, shall be a waiver only with respect to the specific instance involved and shall in no way impair the rights of the parties making such waiver or the obligations of the other parties to such party in any other respect or at any other time."
"(a) Subject to the terms of the CPLV Lease, Tenant may incur (or issue and sell), secure and guarantee one or more series or classes of Indebtedness that Tenant designates as Additional Tenant Financing Debt. Such Additional Tenant Financing Debt may be in addition to the Credit Agreement and/or may refinance the Credit Agreement in full or in part."
"(3) Tenant shall have delivered a Designation to each other then-existing Tenant Financing Collateral Agent and Landlord substantially in the form of ExhibitB hereto, pursuant to which Tenant shall (A)identify the Indebtedness to be designated as Additional Tenant Financing Obligations, (B)specify the name and address of the applicable Additional Tenant Financing Collateral Agent, and (C)certify that the conditions set forth in this Section9.6 are satisfied with respect to such Additional Tenant Financing Debt; provided that, in the case of a replacement or refinancing of the Credit Agreement, the Tenant may identify in such Designation a particular Tenant Financing Collateral Agent as the new Credit Agreement Collateral Agent, and in such case, such Tenant Financing Collateral Agent shall be deemed to be the Credit Agreement Collateral Agent for all purposes hereunder and the Tenant Financing Documents to which such Credit Agreement Collateral Agent is party shall be deemed to the Credit Agreement Loan Documents for all purposes hereunder."
"(e) With respect to any incurrence, issuance or sale of Indebtedness after the date hereof under the Credit Agreement or the Additional Tenant Financing Loan Documents of a Series of Additional Tenant Financing Debt whose Tenant Financing Collateral Agent is already a party to this Agreement, the requirements of Section9.6(b) shall not be applicable and such Indebtedness shall automatically constitute Additional Tenant Financing Debt subject to the provisions of this Agreement."
"(a) submits for itself and its property in any legal action or proceeding relating to this Agreement and the Collateral Documents (whether arising in contract, tort or otherwise) to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the general jurisdiction of the courts of the State of New York sitting in the Borough of Manhattan, the courts of the United States for the Southern District of New York sitting in the Borough of Manhattan, and any bankruptcy court having jurisdiction over any Insolvency or Liquidation Proceeding, and appellate courts from any of the foregoing;"
(c) 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 and that nothing in this Agreement or any other CPLV Lease Document or Tenant Financing Document shall affect any right that any Secured Party may otherwise have to bring any action or proceeding relating to this Agreement or any other CPLV Lease Document or Tenant Financing Document against Tenant or any of its assets in the courts of any jurisdiction;
"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)."
"9.11 APPLICABLE LAW. THIS AGREEMENT AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY PRINCIPLE OF CONFLICTS OF LAW THAT COULD REQUIRE THE APPLICATION OF ANY OTHER LAW (OTHER THAN ANY MANDATORY PROVISIONS OF THE UCC RELATING TO THE LAW GOVERNING PERFECTION AND THE EFFECT OF PERFECTION OR PRIORITY OF THE SECURITY INTERESTS IN THE CPLV LEASE COLLATERAL)."
"9.14 Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile or other electronic transmission (e.g., in pdf or tif format) shall be effective as delivery of a manually executed counterpart hereof."
"9.19 Acknowledgment of CPLV Lease as True Lease. Each Tenant Financing Representative, on behalf of itself and the related Tenant Financing Claimholders, agrees and acknowledges that it will not take any action, directly or indirectly, whether under this Agreement, the Tenant Financing Documents or otherwise, and whether or not any Insolvency or Liquidation Proceeding has been commenced by or against Tenant or Guarantor, (i)to challenge any assertion by any party that the CPLV Lease is a true lease, or (ii)to contend that the CPLV Lease is not a true lease or to support any such contention."
"2\. Representations and Warranties. New Collateral Agent represents and warrants to Landlord and the other Tenant Financing Collateral Agents and that (i)it has full power and authority to enter into this Joinder Agreement, in its capacity as [agent][trustee], (ii)this Joinder Agreement 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 and the terms of the Intercreditor Agreement and (iii)the Tenant Financing Documents relating to such Additional Tenant Financing Debt provide that, upon the New Collateral Agents entry into this Agreement, the Additional Tenant Financing Claimholders in respect of such Additional Tenant Financing Debt will be subject to and bound by the provisions of the Intercreditor Agreement as Tenant Financing Claimholders."
"3\. Counterparts. This Joinder Agreement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Joinder Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually signed counterpart of this Joinder Agreement."
"F. In connection with the Credit Agreement, Tenant is required to grant leasehold mortgages and deeds of trust in respect of Tenants interest in the Non-CPLV Lease and the Leased Property (as defined in the Non-CPLV Lease) to the Credit Agreement Collateral Agent (for the benefit of the Credit Agreement Claimholders) to secure Tenants obligations under the Credit Agreement Loan Documents (as such leasehold deeds of trust and mortgages may be amended, restated, amended and restated, supplemented, otherwise modified from time to time, the Credit Agreement Leasehold Mortgage);"
"L. In connection with the Landlord Financing Agreements, each Landlord is required to grant a Fee Mortgage (as defined in the Non-CPLV Lease) in respect of such Landlords interest in the Leased Property (as defined in the Non-CPLV Lease) and all other property referenced therein (collectively, the Landlord Financing Collateral) to each of the Landlord Credit Lender and Landlord Note Lender to secure such Landlords guarantee of the Borrowers and Issuers respective obligations under the Landlord Credit Agreement, Landlord First Lien Indenture and Landlord Second Lien Indenture, as applicable, pursuant to those certain (i)First Lien Fee and Leasehold Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filings and (ii)Second Lien Fee and Leasehold Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filings, entered into from time to time, in each case, in substantially the forms attached as Exhibits to the Landlord Credit Agreement with such changes thereto as the Landlord Credit Lender shall agree (collectively, as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the Landlord Financing Fee Mortgages) by such Landlord in favor of the Landlord Credit Lender and Landlord Note Lender, as applicable;"
"N. In consideration of the foregoing, the mutual covenants and obligations herein set forth and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, each of Landlord, the Credit Agreement Collateral Agent (for itself and on behalf of each Credit Agreement Claimholder), each Additional Tenant Financing Collateral Agent (for itself and on behalf of each Additional Tenant Financing Claimholder represented by it), Tenant and each Landlord Financing Lender intending to be legally bound, hereby agrees as follows:"
"Additional Tenant Financing Debt means any Indebtedness and guarantees thereof that is incurred, issued or guaranteed by Tenant or any of its Affiliates other than the Credit Agreement Debt, which Indebtedness and guarantees are secured by the Tenant Financing Collateral (or a portion thereof); provided, however, that with respect to any such Indebtedness incurred after the date hereof (i)such Indebtedness is permitted to be incurred and secured on the basis so secured by the Non-CPLV Lease, (ii)unless already a party with respect to that Series of Additional Tenant Financing Debt, the Tenant Financing Collateral Agent for the holders of such Indebtedness shall have become party to this Agreement pursuant to, and by satisfying the conditions set forth in, Section9.6 and (iii)each of the other requirements of Section9.6 shall have been complied with."
"(b) to the extent required under the Tenant Financing Collateral Documents of such Series in order for the liens granted thereunder to be released, payment in full in cash of all Hedging Obligations and all Bank Product Obligations constituting Tenant Financing Obligations of such Series secured by Tenant Financing Collateral Documents or the cash collateralization of all such applicable Hedging Obligations and Bank Product Obligations on terms satisfactory to each applicable counterparty (or the making of other arrangements satisfactory to the applicable counterparty);"
"(c) payment in full in cash of all other Tenant Financing Obligations under the applicable Tenant Financing Documents of such Series that are due and payable or otherwise accrued and owing at or prior to the time such principal and interest are paid (other than any indemnification obligations for which no claim or demand for payment, whether oral or written, has been made at such time);"
"Discharge of Tenant Financing Obligations means, except to the extent otherwise provided in Section5.4, the Discharge of each Series of Tenant Financing Obligations has occurred; provided, that the Discharge of Tenant Financing Obligations shall be deemed not to have occurred if Tenant incurs, issues, secures or guaranties any Additional Tenant Financing Obligations substantially concurrently with the Discharge of the applicable Series of Tenant Financing Obligations and such Additional Tenant Financing Obligations have not themselves been Discharged."
"Non-CPLV Lease Collateral means Tenants Pledged Property as defined in the Non-CPLV Lease as in effect on the date hereof and the Non-CPLV Lease Reserve Account Collateral and shall include any property or assets subject to replacement Liens or adequate protection Liens in favor of Landlord, provided that such replacement Liens or adequate protection Liens, as the case may be, are subject to the provisions of this Agreement; provided that any proceeds or products of the Non-CPLV Lease Collateral, other than any such proceeds or products thereof that (i)arise from an Enforcement Action by Landlord with respect to the Non-CPLV Lease Collateral (but for avoidance of doubt, not Related Property) or (ii)would otherwise independently constitute Tenants Pledged Property (as defined above), shall, in each case, constitute Tenant Financing Separate Collateral and shall not constitute Non-CPLV Lease Collateral."
"Non-CPLV Lease Documents means the Non-CPLV Lease, the Non-CPLV MLSA, the Non-CPLV Lease Collateral Documents and each of the documents and instruments entered into for the purpose of evidencing or securing the Non-CPLV Lease Obligations and any other document or instrument executed or delivered at any time in connection with any Non-CPLV Lease Obligations, as each may be amended, restated, amended and restated, supplemented, replaced or otherwise modified from time to time in accordance with the provisions of this Agreement, the Non-CPLV Lease, or the MLSA."
"(a) Either (1)no Permitted Leasehold Mortgagee has satisfied the requirements in Section17.1(d) of the Non-CPLV Lease 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) of the Non- CPLV Lease 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) of the Non-CPLV Lease or otherwise failed at any time to satisfy the conditions for extending the termination date as provided in Section17.1(e)(i) of the Non-CPLV Lease; or"
"Non-CPLV Lease Termination Conditions means that both (x)the Non-CPLV Lease has been either (i)rejected in bankruptcy (and no Permitted Leasehold Mortgagee (as defined in the Non-CPLV Lease) is entitled to obtain a New Lease (as defined in the Non-CPLV Lease) in accordance with Section17.1(f) thereof or (ii)terminated by Landlord pursuant to Section16.2(x) of the Non-CPLV Lease, and (y)the Non-CPLV Lease Exercise Conditions have occurred."
"Related Property shall mean (i)all of Tenants Pledged Property (as defined in the Non-CPLV Lease) that is not subject to a valid, perfected, first priority lien in favor of Landlord, (ii)any and all gaming licenses and other licenses necessary for or used in connection with the operation of the Leased Properties and the operations and businesses related thereto, and (iii)all Equity Interests (whether shares of stock, limited liability company interests or otherwise) of any Person that holds, owns or otherwise is the beneficiary or beneficial owner of any such gaming licenses or other licenses, but specifically excluding any cash (other than cash (including all cage cash) located on-site at the Leased Properties), securities or investments."
Tenant Financing Leasehold Mortgage means the Credit Agreement Leasehold Mortgage and any other leasehold mortgage or other document or instrument under which any Lien on real property leased by Tenant under the Non-CPLV Lease is granted to secure any Tenant Financing Obligations or under which rights or remedies with respect to any such Liens are governed.
"itself to any liability for doing so) and (iii)any 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 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 Non-CPLV Lease (and, concurrently with such acquisition, such 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 any Landlord Financing Lender sends the notice referred to in clause (ii)above). Notwithstanding anything to the contrary herein or in any Landlord Financing Document, any Enforcement Action or other action by, or on behalf of or for the benefit of, Landlord Financing Lender with respect to the Non-CPLV Lease Collateral shall be subject to the terms and conditions of this Agreement and the Non-CPLV Lease that would be applicable to such Enforcement Action or other action if it was taken by Landlord."
"(b) any Lien on the Non-CPLV Lease Collateral securing any Tenant Financing Obligations now or hereafter held by or on behalf of any Tenant Financing Collateral Agent, any Tenant Financing Claimholders or any agent or trustee therefor regardless of how acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, and regardless of whether or when such Lien is perfected, shall be junior and subordinate to all Liens on the Non-CPLV Lease Collateral securing any Non-CPLV Lease Obligations, subject to, and in accordance with, the terms of this Agreement."
"(3) will not bid for or purchase Non-CPLV Lease Collateral at any public, private or judicial foreclosure upon such Non-CPLV Lease Collateral initiated by any Tenant Financing Collateral Agent or any other Tenant Financing Claimholder, or any sale of Non-CPLV Lease Collateral during an Insolvency or Liquidation Proceeding, in each case in connection with a Tenant Financing Permitted Action."
"(b) Subject to Section2.4, Section3.1 and Section6 of this Agreement, until the Discharge of Tenant Financing Obligations has occurred, so long as the Non-CPLV Lease Exercise Conditions have not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against Tenant, the Tenant Financing Collateral Agents and the other Tenant Financing Claimholders shall have the exclusive right to commence and maintain an Enforcement Action (but excluding any Permitted Non-CPLV Lease Reserve Account Collateral Application) and make determinations regarding the release, disposition or restrictions with respect to the Non-CPLV Lease Collateral without any consultation with or the consent of Landlord; provided that (A)with respect to any Non-CPLV Lease Collateral and any Related Property, such Enforcement Action is a Tenant Financing Permitted Action and provided any acquirer of such Non-CPLV Lease Collateral and such Related Property expressly agrees in writing for the benefit of Landlord that such Non-CPLV Lease Collateral and such Related Property that is transferred will be made available to the new tenant of the Leased Premises and will be utilized on the Tenants Leasehold Estate in connection with a New Lease or any transfer of Tenants Leasehold Estate to a Replacement Tenant under Section17.1(e) and 22 of the Non-CPLV Lease (but subject in each case to Section6 of the Non-CPLV Lease) and (B)notwithstanding any such Enforcement Action or other exercise of any such right or remedy, the Non-CPLV Lease Collateral shall remain subject to the continuing first priority lien of Landlord (which has been collaterally assigned to the Landlord Financing Lenders) and the Tenant Collateral Agent or its designee or assignee so acquiring the Non-CPLV Lease Collateral (whether in connection with any credit bid, Enforcement Action or otherwise) shall expressly acknowledge in writing that it is acquiring the Non-CPLV Lease Collateral subject to the first priority Lien of Landlord (which has been collaterally assigned to Landlord Financing Lenders). It is the express intention of all the parties hereto that the Non-CPLV Lease Collateral remain subject to the Non-CPLV Lease (or any New Lease entered into in accordance with Section17.1(f) of the Non-CPLV Lease), including after the exercise of any rights and remedies by any Tenant Financing Collateral Agent and/or any other Tenant Financing Claimholder. In commencing or maintaining any Enforcement Action or"
"Landlord agrees that it will not take or receive any Non-CPLV Lease Collateral or any proceeds of Non-CPLV Lease Collateral in connection with the exercise of any right or remedy (including set-off and recoupment) with respect to any Non-CPLV Lease Collateral in its capacity as a creditor, except to the extent that the Non-CPLV Lease Termination Conditions have occurred. Without limiting the generality of the foregoing, unless and until the Non-CPLV Lease Termination Conditions have occurred, except as expressly provided in Section3.1(a) or this Section3.1(c) or any other provision of this Agreement, the sole right of Landlord with respect to the Non-CPLV Lease Collateral is to hold a Lien on the Collateral pursuant to the Non-CPLV Lease Collateral Documents for the period and to the extent granted therein."
"Lease or to permit either to exercise such rights and remedies at a time or in a manner inconsistent with the Non-CPLV Lease); provided that in the event that Landlord becomes a judgment Lien creditor in respect of Non-CPLV Lease Collateral as a result of its enforcement of its rights as landlord under the Non-CPLV Lease, such judgment Lien shall be subject to the terms of this Agreement for all purposes (including in relation to the Tenant Financing Obligations) in the same manner as the other Liens securing the Non-CPLV Lease Obligations are subject to this Agreement."
"(a) From and after the occurrence of the Non-CPLV Lease Exercise Conditions, until the Discharge of Non-CPLV Lease Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against Tenant, as between Tenant Financing Claimholders and Landlord, Landlord shall have the exclusive right to commence and maintain an Enforcement Action or otherwise enforce rights, exercise remedies (including set-off, recoupment and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Non-CPLV Lease Collateral without any consultation with or the consent of the Tenant Financing Claimholders and any Enforcement Action with respect to Non-CPLV Lease Collateral then undertaken by any Tenant Financing Collateral Agent shall thereupon immediately cease; provided, that as between Landlord and Tenant the limitations in the Non-CPLV Lease shall govern and control. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect to the Non-CPLV Lease Collateral, Landlord may enforce the provisions of the Non-CPLV Lease Documents and exercise remedies thereunder, all in such order and in such manner as it may determine in the exercise of its sole discretion in compliance with any applicable law and the terms of the Non-CPLV Lease Documents and without consultation with the Tenant Financing Claimholders. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Non- CPLV Lease Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction."
"(3) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Tenant Financing Claimholders, including any claims secured by the Non-CPLV Lease Collateral, if any, in each case in a manner that is not prohibited by, or inconsistent with, this Agreement;"
"(d) Solely to the extent not inconsistent with this Agreement, the Tenant Financing Collateral Agents and other Tenant Financing Claimholders may exercise rights and remedies as unsecured creditors against Tenant in accordance with the terms of the Tenant Financing Documents and applicable law; provided that (i)in the event that any Tenant Financing Claimholder becomes a judgment Lien creditor in respect of Non-CPLV Lease Collateral as a result of its enforcement of its rights as an unsecured creditor with respect to the Tenant Financing Obligations, such judgment Lien shall be subject to the terms of this Agreement for all purposes (including in relation to the Non-CPLV Lease Obligations) in the same manner as the other Liens securing the Tenant Financing Obligations are subject to this Agreement."
"(g) Nothing in this Agreement shall prohibit the receipt by Landlord of the required payments of principal, interest and other amounts owed in respect of the Non-CLPV Lease Obligations so long as such receipt is not the direct or indirect result of the exercise by Landlord 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 Landlord of the terms of this Agreement and so long as the Landlord has acted in accordance with the Lease and the Non-CPLV Lease Documents."
"Non-CPLV Lease Obligations, Landlord shall, in the following order, (x)unless a Discharge of Tenant Financing Obligations has already occurred, deliver any remaining proceeds of Non-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 Non-CPLV Lease Collateral to Tenant, its successors or assigns from time to time, or to whomever may be lawfully entitled to receive the same."
"(a)(i) Solely with respect to any deposit accounts and securities accounts constituting Non-CPLV Lease Collateral (the Pledged Collateral) under the control (within the meaning of Section9-104 or 9-106 of the UCC) of Landlord or any Landlord Financing Lender, Landlord and such Landlord Financing Lender agree to also hold control over such deposit accounts for the Tenant Financing Collateral Agents, subject to the terms and conditions of this Section5.3."
"(b) If, at any time after the Discharge of Tenant Financing Obligations has occurred, Tenant enters into any Additional Tenant Financing Loan Document evidencing any Additional Tenant Financing Obligations, so long as the Tenant Financing Collateral Agent and the Tenant Financing Claimholders are Permitted Leasehold Mortgagees (as defined in the Non-CPLV Lease) then Landlord and each Landlord Financing Lender, at the cost and expense of Tenant, shall, upon the request of Tenant, promptly enter into a new intercreditor agreement, in substantially the same form as this Agreement, with the Tenant Financing Collateral Agent in respect of such Additional Tenant Financing Obligations and the Tenant. This Section5.4(b) shall survive termination of this Agreement."
"No Tenant Financing Claimholder may participate, directly or indirectly, in, or support any other Person that is seeking approval of, any DIP Financing secured by Non-CPLV Lease Collateral unless (a)any Liens on the Non-CPLV Lease Collateral securing such DIP Financing are subordinated to the Liens on the Non-CPLV Lease Collateral securing the Non-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 Non-CPLV Lease that may arise prior to any rejection of the Non-CPLV Lease."
"(b) Each Tenant Financing Representative, on behalf of itself and the Tenant Financing Claimholders, agrees that it shall not object to or contest, or support any other Person objecting to or contesting, in each case to the extent that such actions are not inconsistent with this Agreement, (i)any request by Landlord for adequate protection under Bankruptcy Law; or (ii)any objection by Landlord to any motion, relief, action or proceeding based on a claim of a lack of adequate protection or (iii)the payment of interest, fees, expenses or other amounts to Landlord under Section506(b) or 506(c) of the Bankruptcy Code or otherwise."
"9.3 Amendments; Waivers. No amendment, modification or waiver of any of the provisions of this Agreement by any party hereto shall be deemed to be made unless the same shall be in writing signed on behalf of each party hereto or its authorized agent and each waiver, if any, shall be a waiver only with respect to the specific instance involved and shall in no way impair the rights of the parties making such waiver or the obligations of the other parties to such party in any other respect or at any other time."
"(a) With respect to the value of any payments or distributions in cash, property or other assets that any of the Tenant Financing Claimholders or Tenant Financing Collateral Agents pays over to Landlord under the terms of this Agreement, such Tenant Financing Claimholders and Tenant Financing Collateral Agents shall be subrogated to the rights of Landlord; provided that each such Tenant Financing Collateral Agent, on behalf of itself and each other Tenant Financing Claimholder represented by it, hereby agrees not to assert or enforce any such rights of subrogation it may acquire as a result of any payment hereunder until the Discharge of Non-CPLV Lease Obligations has occurred. Tenant acknowledges and agrees that the value of any payments or distributions in cash, property or other assets received by the Tenant Financing Collateral Agents or the Tenant Financing Claimholders that are paid over to Landlord pursuant to this Agreement shall not reduce any of the Tenant Financing Obligations."
"(2) such Additional Tenant Financing Collateral Agent shall have executed and delivered to each other then-existing Tenant Financing Collateral Agent and Landlord a Joinder Agreement substantially in the form of ExhibitA hereto (with such changes as may be reasonably approved by such Persons and such Additional Tenant Financing Collateral Agent) pursuant to which such Additional Tenant Financing Collateral Agent becomes a Tenant Financing Collateral Agent hereunder and the related Tenant Financing Claimholders, as applicable, become subject hereto and bound hereby; and"
"(3) Tenant shall have delivered a Designation to each other then-existing Tenant Financing Collateral Agent and Landlord substantially in the form of ExhibitB hereto, pursuant to which Tenant shall (A)identify the Indebtedness to be designated as Additional Tenant Financing Obligations, (B)specify the name and address of the applicable Additional Tenant Financing Collateral Agent, and (C)certify that the conditions set forth in this Section9.6 are satisfied with respect to such Additional Tenant Financing Debt; provided that, in the case of a replacement or refinancing of the Credit Agreement, the Tenant may identify in such Designation a particular Tenant Financing Collateral Agent as the new Credit Agreement Collateral Agent, and in such case, such Tenant Financing Collateral Agent shall be deemed to be the Credit Agreement Collateral Agent for all purposes hereunder and the Tenant Financing Documents to which such Credit Agreement Collateral Agent is party shall be deemed to the Credit Agreement Loan Documents for all purposes hereunder."
"(e) With respect to any incurrence, issuance or sale of Indebtedness after the date hereof under the Credit Agreement or the Additional Tenant Financing Loan Documents of a Series of Additional Tenant Financing Debt whose Tenant Financing Collateral Agent is already a party to this Agreement, the requirements of Section9.6(b) shall not be applicable and such Indebtedness shall automatically constitute Additional Tenant Financing Debt subject to the provisions of this Agreement."
"(a) submits for itself and its property in any legal action or proceeding relating to this Agreement and the Collateral Documents (whether arising in contract, tort or otherwise) to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the general jurisdiction of the courts of the State of New York sitting in the Borough of Manhattan, the courts of the United States for the Southern District of New York sitting in the Borough of Manhattan, and any bankruptcy court having jurisdiction over any Insolvency or Liquidation Proceeding, and appellate courts from any of the foregoing;"
(c) 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 and that nothing in this Agreement or any other Non-CPLV Lease Document or Tenant Financing Document shall affect any right that any Secured Party may otherwise have to bring any action or proceeding relating to this Agreement or any other Non-CPLV Lease Document or Tenant Financing Document against Tenant or any of its assets in the courts of any jurisdiction;
"9.12 Binding on Successors and Assigns. This Agreement shall be binding upon Landlord, the Tenant Financing Collateral Agents, the other Tenant Financing Claimholders, Tenant and each Landlord Financing Lender and their respective successors and assigns from time to time. If any Tenant Financing Collateral Agent resigns or is replaced pursuant to the Tenant Financing Documents, its successor and/or assign shall be deemed to be a party to this Agreement and shall have all the rights of, and be subject to all the obligations of, this Agreement. No provision of this Agreement will inure to the benefit of a bankruptcy trustee, debtor-in-possession, creditor trust or other representative of an estate or creditor of Tenant, including where any such bankruptcy trustee, debtor-in-possession, creditor trust or other representative of an estate is the beneficiary of a Lien securing Non-CPLV Lease Collateral by virtue of the avoidance of such Lien in an Insolvency or Liquidation Proceeding."
"9.13 Section Headings. The section headings and the table of contents used in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose, be given any substantive effect, affect the construction hereof or be taken into consideration in the interpretation hereof."
"9.19 Acknowledgment of Non-CPLV Lease as True Lease. Each Tenant Financing Representative, on behalf of itself and the related Tenant Financing Claimholders, agrees and acknowledges that it will not take any action, directly or indirectly, whether under this Agreement, the Tenant Financing Documents or otherwise, and whether or not any Insolvency or Liquidation Proceeding has been commenced by or against Tenant or Guarantor, (i)to challenge any assertion by any party that the Non-CPLV Lease is a true lease, or (ii)to contend that the Non-CPLV Lease is not a true lease or to support any such contention."
"2. Title, Duties and Responsibilities. While Executive is employed by the Company, Executive will serve as the President and Chief Operating Officer of OptiNose,Inc. and will report to 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 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; provided, however, that Executive will be permitted to devote a reasonable amount of time either during or after business hours to Outside Activities (as defined below), so long as such activities (i) do not prohibit or interfere with Executives performance of Executives duties under this Agreement, (ii) do not conflict with the business of the Company or violate any of the provisions of Section8 herein and (iii)are approved in advance in writing by the Chief Executive Officer of OptiNose,Inc. and the Nominating and Corporate Governance Committee (which consent shall not be unreasonably withheld). For purposes of this Agreement, Outside Activities shall include the oversight of passive investments and activities involving professional, charitable, education, religious and other organizations (including membership on boards of for-profit and non-profit organizations). 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."
"(a) Discretionary Bonus. Executive will be eligible to receive an annual target cash bonus of 50% 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."
"(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):"
"(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):"
(c) All determinations under this Section7 will be made by an accounting firm or law firm (the 280G Firm) that is mutually agreed to by Executive and the Company prior to a change in ownership or control of a corporation (within the meaning of Treasury regulations under Section280G of the Code). The 280G Firm shall be required to evaluate the extent to which payments are exempt from Section280G of the Code as reasonable compensation for services rendered before or after the Change in Control. All fees and expenses of the 280G Firm shall be paid solely by the Company. The Company will direct the 280G Firm to submit any determination it makes under this Section7 and detailed supporting calculations to both Executive and the Company as soon as reasonably practicable.
"(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"
"(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"
"(h) Cooperation. Upon the receipt of notice from the Company (including outside counsel), Executive agrees that while employed by the Employer (for no additional compensation) and thereafter (for reasonable compensation for Executives time), Executive will respond and provide information with regard to matters in which Executive has knowledge as a result of Executives employment with the Employer, and will provide reasonable assistance to the Employer and its representatives in defense of any claims that may be made against the Employer, and will assist the Employer in the prosecution of any claims that may be made by the Employer, to the extent that such claims may relate to the period of Executives employment with the Employer (or any predecessor). Executive agrees to promptly inform the Company if Executive becomes aware of any lawsuits involving such claims that may be filed or threatened against the Employer. Executive also agrees to promptly inform the Company (to the extent Executive is legally permitted to do so) if Executive is asked to assist in any investigation of the Employer (or their actions), regardless of whether a lawsuit or other proceeding has then been"
"(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)."
"(l) Prior Agreements. Executive represents and warrants to the Company that there are no restrictions, agreements or understandings whatsoever to which Executive is a party that would prevent or make unlawful Executives execution of this Agreement or Executives employment hereunder, is or would be inconsistent or in conflict with this Agreement or Executives employment hereunder, or would prevent, limit or impair in any way the performance by Executive of the obligations hereunder."
"18. Severability. The provisions of this Agreement will be deemed severable and the invalidity of unenforceability of any provision will not affect the validity or enforceability of the other provisions hereof No failure to exercise, delay in exercising, or single or partial exercise of any right, power or remedy by either party, and no course of dealing between the parties, shall constitute a waiver of, or shall preclude any other or further exercise of, any right, power or remedy."
"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."
"(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) 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."
"(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"
"(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 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"
"(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."
(c) All determinations under this Section7 will be made by an accounting firm or law firm (the 280G Firm) that is mutually agreed to by Executive and the Company prior to a change in ownership or control of a corporation (within the meaning of Treasury regulations under Section280G of the Code). The 280G Firm shall be required to evaluate the extent to which payments are exempt from Section280G of the Code as reasonable compensation for services rendered before or after the Change in Control. All fees and expenses of the 280G Firm shall be paid solely by the Company. The Company will direct the 280G Firm to submit any determination it makes under this Section7 and detailed supporting calculations to both Executive and the Company as soon as reasonably practicable.
"(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."
"arbitrator mutually agreed to by the Company and Executive, sitting in Philadelphia, Pennsylvania or such other location agreed to by Executive 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 Executive 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 Philadelphia Office of the American Arbitration Association. 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."
"15. Notices. All notices and other communications required or permitted hereunder or necessary or convenient in connection herewith shall be in writing and shall be deemed to have been given when hand delivered or three (3)days after being mailed by registered or certified mail to Executive or the Company, as the case may be, at Executives address set forth below or the Companys address set forth below, or to such other names or addresses as Executive or the Company, as the case may be, shall designate by notice to each other person entitled to receive notices in the manner specified in this Section(provided that notice of change of address shall be deemed given only when received)."
"(e) Notwithstanding anything in Section6(f)hereof to the contrary, in the event that Executive is entitled to the amount set forth in Section6(f)(i)as a result of a termination of Executives employment within twelve (12) months after the date of the Change in Control, and such Change in Control does not constitute a change in ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company, within the meaning of Section409A(a)(2)(A)(v)of the Code and its corresponding regulations, and any portion of the severance benefit payable to Executive pursuant to Section6(e)(i)is deemed to constitute deferred compensation subject to the requirements of Section409A of the Code at the time of Executives termination, then such portion that constitutes deferred compensation shall reduce the amount that is paid in a lump sum as provided in Section6(f)(i)and such deferred compensation portion shall instead be paid in substantially equal installments over the installment period as described in Section6(e)(i)."
"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."
"1. Employment. The Parties agree that Executives employment with the Company is subject to the terms and conditions set forth herein. The initial term of the Previous Agreement (the Initial Term) began on January 18, 2016 (the Effective Date) and was renewed as of January 1, 2017 for an additional one-year term, and may be renewed for additional one-year periods beginning January 1, 2018 (each a Renewal Term), provided that any such renewal must be approved by at least two (2) members of the Board of Directors of the Company (the Board) and agreed to in writing by the Parties no later than the last day of the Initial Term or expiring Renewal Term, as applicable."
"(a) If Executive is employed by the Company as of December 31, 2017, Executive shall be eligible to receive a cash bonus with respect to the fiscal year ended December 31, 2017 equal to 10 percent (10%) of the then-applicable Base Salary payable within 90 days of the end of the fiscal year ended December 31, 2017, if the Companys net revenues for such fiscal year equal or exceed $12,960,000 and the Companys net income before taxes, adjusted to exclude the effect of (i) bonuses paid to officers, (ii) contract disbursements to Sandia National Labs, the U.S. Naval Research Laboratory, and such other R&D contractors as may be agreed, and (iii) stock option expense attributable to the Stock Options (as defined below) (Adjusted Net Income), exceeds $1,620,000."
"(c) In the event the Vesting Conditions are not met in either the fiscal year ending December 31, 2019 or the fiscal year ending December 31, 2020, but are met in the fiscal year ending December 31, 2021, and this Agreement is still in effect as of December 31, 2021, then 25% of the Stock Options will vest in full as of that date and the remaining 75% of the Stock Options will be deemed cancelled."
"5.4 Welfare and Benefit Plans. During Executives employment, (A) Executive shall be entitled to participate in all incentive, savings and retirement plans, practices, policies and programs of the Company; and (B) Executive and/or Executives family, as the case may be, shall be eligible to participate in, and shall receive all benefits under, all welfare benefit plans, practices, policies and programs provided by the Company (including, to the extent provided, without limitation, medical, prescription, dental, vision, disability, salary continuance, employee life insurance, group life insurance, accidental death and travel accident insurance plans and programs) (all such plans collectively, the Plans). Except as provided herein, the Company shall not be required to establish or continue the Plans or take any action to cause Executive to be eligible for any Plans on a basis more favorable than that applicable to all its executive-level employees generally. The Company reserves the right to modify or discontinue the Plans in the Companys sole discretion."
"(b) The Companys obligations under this Section 6.2 are subject to the requirements and time periods set forth in this Section 6.2 and in the Release Agreement. Prior to receiving the payments described in this Section 6.2, Executive shall execute the Release Agreement on or before the date that is seventy-five (75) days after the last day of Executives employment. If Executive fails to timely execute and remit the Release Agreement, Executive waives any right to the payments provided under this Section 6.2. The Company will have no further obligations to Executive under this Agreement or otherwise after making payments pursuant to this Section 6.2. Payments under this Section 6.2 shall be made within fifteen (15) days of Executives execution and delivery of the Release Agreement, provided that Executive does not revoke the Release Agreement."
"(c) Executive agrees that payments made pursuant to this Section 6.2 shall constitute the exclusive and sole remedy for any termination of Executives employment, and Executive covenants not to assert or pursue any other remedies, at law or in equity, with respect to any termination of employment. The foregoing shall not limit any of Executives rights with regard to any rights to indemnification, advancement or payment of legal fees and costs, and coverage under directors and officers liability insurance."
"7.2 Good Reason shall mean, in the context of a resignation by Executive, a resignation that occurs within thirty (30) days following (i) a material diminution of Executives duties, excluding inadvertent or isolated actions not taken in bad faith and promptly remedied after written notice thereof, (ii) any material reduction in Executives Base Salary or nonpayment of Executives Base Salary, or (iii) any material breach of this Agreement by the Company, provided that in the case of a material breach, Good Reason shall only exist where Executive has provided the Company with written notice of the breach and, if the breach is reasonably capable of being cured within a period of fifteen (15) business days, the Company has failed to cure within fifteen (15) business days."
"9.4 Executive represents and warrants that, upon separation of employment, and without any request by the Company, Executive will return to Company any and all property, documents, and files (including all recorded media, such as papers, computer disks or other data storage devices, copies, photographs, maps, transparencies, and microfiche) that contain Confidential Information or relate in any way to Company or its business. Executive agrees, to the extent Executive possesses any files, data, or information relating in any way to Company or its business on any personal computer, Executive will delete those files, data, or information (and will retain no copies in any form). Executive also will return any Company tools, equipment, calling cards, credit cards, access cards or keys, any keys to any filing cabinets, vehicles, vehicle keys, and all other Company property in any form prior to the last date of employment."
"10.3 Executive warrants and represents that there are no original works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks, service marks, or trade secrets, or inventions which were made or acquired by Executive prior to Executives employment by the Company, which are owned in whole or in part by Executive, which relate to the business, or the Companys proposed business, and which are not assigned to the Company under this Agreement."
"b. Executive voluntarily executes this Agreement (i) after having been advised to consult with legal counsel, (ii) after having had opportunity to consult with legal counsel, and (iii) without being pressured or influenced by any statement or representation or omission of any person acting on behalf of the Company including, without limitation, the officers, directors, board members, committee members, employees, agents, and attorneys for the Company."
"b. Executive shall not use, nor disclose to any third party, any of the Companys business, personnel, or financial information that Executive learned during Executives employment with the Company. Executive hereby expressly acknowledges that any breach of this Paragraph 7 shall result in a claim for injunctive relief and/or damages against Executive by the Company, and possibly by others."
"18. Interpretation. The determination of the terms of, and the drafting of, this Agreement has been by mutual agreement after negotiation, with consideration by and participation of all Parties. Accordingly, the Parties agree that rules relating to the interpretation of contracts against the drafter of any particular clause shall not apply in the case of this Agreement. The term Paragraph shall refer to the enumerated paragraphs of this Agreement. The headings contained in this Agreement are for convenience of reference only and are not intended to limit the scope or affect the interpretation of any provision of this Agreement."
"(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 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). 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."
"(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."
"(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."
(j) Injunctive Relief. It is further expressly agreed that the Employer will or would suffer irreparable injury if Executive were to violate the provisions of this Section8 and that the Employer would by reason of such violation be entitled to injunctive relief in a court of appropriate jurisdiction and Executive further consents and stipulates to the entry of such injunctive relief in such court prohibiting Executive from violating the provisions of this Section8.
"13. 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."
"15. Notices. All notices and other communications required or permitted hereunder or necessary or convenient in connection herewith shall be in writing and shall be deemed to have been given when hand delivered or three (3)days after being mailed by registered or certified mail to Executive or the Company, as the case may be, at Executives address set forth below or the Companys address set forth below, or to such other names or addresses as Executive or the Company, as the case may be, shall designate by notice to each other person entitled to receive notices in the manner specified in this Section(provided that notice of change of address shall be deemed given only when received)."
"(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"
"(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."
"(e) Notwithstanding anything in Section6(f)hereof to the contrary, in the event that Executive is entitled to the amount set forth in Section6(f)(i)as a result of a termination of Executives employment within twelve (12) months after the date of the Change in Control, and such Change in Control does not constitute a change in ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company, within the meaning of Section409A(a)(2)(A)(v)of the Code and its corresponding regulations, and any portion of the severance benefit payable to Executive pursuant to Section6(e)(i)is deemed to constitute deferred compensation subject to the requirements of Section409A of the Code at the time of Executives termination, then such portion that constitutes deferred compensation shall reduce the amount that is paid in a lump sum as provided in Section6(f)(i)and such deferred compensation portion shall instead be paid in substantially equal installments over the installment period as described in Section6(e)(i)."
"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."
"1. Term. Subject to the terms and provisions of this Agreement, this Agreement shall be effective upon the closing of the OptiNose,Inc. initial public offering of its common stock, and shall continue until Executives employment with the Company is terminated by the Company or by Executive. At all times, Executives employment with the Company is at-will, which means that Executives employment with the Company may be terminated at any time by the Company with or without Cause or by Executive with or without Good Reason (as each such term is defined below)."
"(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."
"(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,"
"(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."
"(h) Cooperation. Upon the receipt of notice from the Company (including outside counsel), Executive agrees that while employed by the Employer (for no additional compensation) and thereafter (for reasonable compensation for Executives time), Executive will respond and provide information with regard to matters in which Executive has knowledge as a result of Executives employment with the Employer, and will provide reasonable assistance to the Employer and its representatives in defense of any claims that may be made against the Employer, and will assist the Employer in the prosecution of any claims that may be made by the Employer, to the extent that such claims may relate to the period of Executives employment with the Employer (or any predecessor). Executive agrees to promptly inform the Company if Executive becomes aware of any lawsuits involving such claims that may be filed or threatened against the Employer. Executive also agrees to promptly inform the Company (to the extent Executive is legally permitted to do so) if Executive is asked to assist in any investigation of the Employer (or their actions), regardless of whether a lawsuit or other proceeding has then been filed against the Employer with respect to such investigation, and will not do so unless legally required."
"(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)."
(j) Injunctive Relief. It is further expressly agreed that the Employer will or would suffer irreparable injury if Executive were to violate the provisions of this Section8 and that the Employer would by reason of such violation be entitled to injunctive relief in a court of appropriate jurisdiction and Executive further consents and stipulates to the entry of such injunctive relief in such court prohibiting Executive from violating the provisions of this Section8.
"11. Arbitration; Attorneys Fees. Executive agrees that all disputes and controversies arising under or in connection with this Agreement, other than seeking injunctive or other equitable relief under Section8(j), will be settled by arbitration conducted before one (1)arbitrator mutually agreed to by the Company and Executive, sitting in Philadelphia, Pennsylvania or such other location agreed to by Executive 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 Executive 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 Philadelphia Office of the American Arbitration Association. 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."
"(e) Notwithstanding anything in Section6(f)hereof to the contrary, in the event that Executive is entitled to the amount set forth in Section6(f)(i)as a result of a termination of Executives employment within twelve (12) months after the date of the Change in Control, and such Change in Control does not constitute a change in ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company, within the meaning of Section409A(a)(2)(A)(v)of the Code and its corresponding regulations, and any portion of the severance benefit payable to Executive pursuant to Section6(e)(i)is deemed to constitute deferred compensation subject to the requirements of Section409A of the Code at the time of Executives termination, then such portion that constitutes deferred compensation shall reduce the amount that is paid in a lump sum as provided in Section6(f)(i)and such deferred compensation portion shall instead be paid in substantially equal installments over the installment period as described in Section6(e)(i)."
"THIS LEASE (CPLV) (this Lease) is entered into as of October6, 2017, by and among CPLV Property Owner LLC, a Delaware limited liability company (together with its successors and assigns, Landlord), and Desert Palace LLC, a Nevada limited liability company, Caesars Entertainment Operating Company, Inc., a Delaware corporation, and CEOC, LLC, a Delaware limited liability company (as successor by merger to Caesars Entertainment Operating Company, Inc.), jointly and severally (collectively, or if the context clearly requires, individually, and together with their respective successors and permitted assigns, Tenant)."
"The Leased Property is leased subject to all covenants, conditions, restrictions, easements and other matters of any nature affecting the Leased Property or any portion thereof as of the Commencement Date and such subsequent covenants, conditions, restrictions, easements and other matters as may hereafter arise in accordance with the terms of this Lease or as may otherwise be agreed to in writing by Landlord and Tenant, whether or not of record, including any matters which would be disclosed by an inspection or accurate survey of the Leased Property or any portion thereof."
"1.2 Single, Indivisible Lease. This Lease constitutes one indivisible lease of the Leased Property and not separate leases governed by similar terms. The Leased Property constitutes one economic unit, and the Rent and all other provisions have been negotiated and agreed upon based on a demise of all of the Leased Property to Tenant as a single, composite, inseparable transaction and would have been substantially different had separate leases or a"
"Accounts: All Tenants accounts, including deposit accounts (but excluding any impound accounts established pursuant to Section4.1 or any Fee Mortgage Reserve Accounts), all rents, profits, income, revenues or rights to payment or reimbursement derived from Tenants use of any space within the Leased Property or any portion thereof and/or from goods sold or leased or services rendered by Tenant from the Leased Property or any portion thereof (including, without limitation, from goods sold or leased or services rendered from the Leased Property or any portion thereof by any Subtenant or Affiliated property manager) and all Tenants accounts receivable derived from the use of the Leased Property or goods or services provided from the Leased Property, in each case whether or not evidenced by a contract, document, instrument or chattel paper and whether or not earned by performance, including without limitation, the right to payment of management fees and all proceeds of the foregoing."
"Appointing Authority: Either (i)the Institute for Conflict Prevention and Resolution (also known as, and shall be defined herein as, the CPR Institute), unless it is unable to serve, in which case the Appointing Authority shall be (ii)the American Arbitration Association (AAA) under its Arbitrator Select Program for non-administered arbitrations or whatever AAA process is in effect at the time for the appointment of arbitrators in cases not administered by the AAA, unless it is unable to serve, in which case (iii)the Parties shall have the right to apply to any court of competent jurisdiction to appoint an Appointing Authority in accordance with the courts power to appoint arbitrators. The CPR Institute and the AAA shall each be considered unable to serve if it no longer exists, or if it no longer provides neutral appointment services, or if it does not confirm (in form or substance) that it will serve as the Appointing Authority within thirty (30)days after receiving a written request to serve as the Appointing Authority, or if, despite agreeing to serve as the Appointing Authority, it does not confirm appointment within sixty (60)days after receiving such written request."
"Bookings: Reservations, bookings and short-term arrangements with conventions, conferences, hotel guests, tours, vendors and other groups or individuals (it being understood that whether or not such arrangements or agreements are short-term or temporary shall be determined without regard to how long in advance such arrangements or agreements are entered into), in each case entered into in the ordinary course consistent with past practices."
"Capital Lease Obligations: With respect to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other similar arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations have been or should be classified and accounted for as capital leases on a balance sheet of such person under GAAP (as in effect on the date hereof) and, for purposes hereof, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP (as in effect on the date hereof)."
"CPI: The United States Department of Labor, Bureau of Labor Statistics Revised Consumer Price Index for All Urban Consumers (1982-84=100), U.S. City Average, All Items, or, if that index is not available at the time in question, then the index designated by such Department as the successor to such index, and if there is no index so designated, an index for an area in the United States that most closely corresponds to the entire United States, published by such Department, or if none, by any other instrumentality of the United States, all as reasonably determined by Landlord and Tenant."
CPLV Exclusive Customer: Any customer or guest of the Facility whose gaming theoretical value at the Facility constitutes seventy-five percent (75%) or more of the total gaming theoretical value of such customer or guest at all properties managed by the Manager during the twenty-four (24)month period immediately preceding the month in which the date of determination occurs.
"Disclosure Documents means, collectively, any written materials used or provided to any prospective investors and/or the rating agencies in connection with any public offering or private placement in connection with a securitization (including, without limitation, a prospectus, prospectus supplement, private placement memorandum, offering memorandum, offering circular, term sheet, road show presentation materials or other offering documents, marketing materials or information provided to prospective investors), in each case in preliminary or final form and including any amendments, supplements, exhibits, annexes and other attachments thereto."
"EBITDAR: For any applicable twelve (12)month period, the consolidated net income or loss of a Person on a consolidated basis for such period, determined in accordance with GAAP, provided, however, that without duplication and in each case to the extent included in calculating net income (calculated in accordance with GAAP): (i)income tax expense shall be excluded; (ii)interest expense shall be excluded; (iii)depreciation and amortization expense shall be excluded; (iv)amortization of intangible assets shall be excluded; (v)write-downs and reserves for non-recurring restructuring-related items (net of recoveries) shall be excluded; (vi)reorganization items shall be excluded; (vii)any impairment charges or asset write-offs, non-cash gains, losses, income and expenses resulting from fair value accounting required by the applicable standard under GAAP and related interpretations, and non-cash charges for deferred tax asset valuation allowances, shall be excluded; (viii)any effect of a change in accounting principles or policies shall be excluded; (ix)any non-cash costs or expense 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 shall be excluded; (x)any nonrecurring gains or losses (less all fees and expenses relating thereto) shall be excluded; (xi)"
"Fair Market Rental Value: The annual fixed fair market rental value for the Leased Property or any applicable part thereof (excluding Tenant Material Capital Improvements), as the context requires, as of the date of commencement of the Renewal Term for which the Fair Market Rental Value is being determined, in its then-condition, that a willing tenant would pay to a willing landlord on arms length terms (assuming (1)neither such tenant nor landlord is under any compulsion to lease 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, (2)such lease contained terms and conditions identical to the terms and conditions of this Lease, other than with respect to the length of term and payment of Rent, (3)neither party is paying any broker a commission in connection with the transaction, and (4)that the tenant thereunder will pay such Fair Market Rental Value for the entire term of such demise (i.e., no early termination)), taking into account the provisions of Section34.1(g), and otherwise taking all then-relevant factors into account (whether favorable to one, both or neither Party), 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. In all cases, for purposes of determining the Fair Market Ownership Value or the Fair Market Rental Value, as the case may be, (A)the Leased Property (or Facility, as applicable) to be valued pursuant hereto (as improved by all then existing Leased Improvements, and all Capital Improvements thereto, but excluding any Tenant Material Capital Improvements), shall be valued as (or as part of) a fully-permitted Facility operated in accordance with the provisions of this Lease for the Primary Intended Use, free and clear of any lien or encumbrance evidencing a debt (including any Permitted Leasehold Indebtedness) or judgment (including any mortgage, security interest, tax lien, or judgment lien) (provided, however, for purposes of determining Fair Market Ownership Value of any applicable Tenant Material Capital Improvements pursuant to Section10.4(e), the same shall be valued on the basis of the then-applicable status of any applicable permits, free and clear of only such liens and encumbrances that will be removed if and when conveyed to Landlord pursuant to said Section10.4(e)), (B) in determining the Fair Market Ownership Value or Fair Market Rental Value with respect to damaged or destroyed Leased Property, such value shall be determined as if such Leased Property had not been so damaged or destroyed (unless otherwise expressly provided herein), except that such value with respect to damaged or destroyed Tenant Material Capital Improvements shall only be determined as if such Tenant Material Capital Improvements had been restored if and to the extent Tenant is required to repair, restore or replace such Tenant Material Capital Improvements under this Lease (provided, however, for purposes of determining Fair Market Ownership Value pursuant to Section10.4(e), the same shall be valued taking into account any then- existing damage), and (C)the price shall represent the normal consideration for the property sold (or leased) unaffected by sales (or leasing) concessions granted by anyone associated with the transaction. In addition, the following specific matters shall be factored in or out, as appropriate, in determining Fair Market Ownership Value or Fair Market Rental Value as the case may be: (i)the negative value of (x)any deferred maintenance or other items of repair or replacement of the Leased Property to the extent arising from breach or failure of Tenant to perform or observe its obligations hereunder, (y)any then current or prior Gaming or other licensure violations by Tenant, Guarantor or any of their Affiliates, and (z)any breach or failure of Tenant to perform or observe its obligations hereunder (in each case with respect to the foregoing clauses (x), (y) and (z), without giving effect to any applicable cure periods hereunder), shall, in each case, when determining Fair Market Ownership Value or Fair Market Rental Value, as the case may be, not be taken into"
"Fee Mortgagee Securitization Indemnitee: Any Fee Mortgagee, any Affiliate of a Fee Mortgagee that has filed any registration statement relating to a Fee Mortgagee Securitization or has acted as the sponsor or depositor in connection with a Fee Mortgagee Securitization, any Affiliate of a Fee Mortgagee that acts as an underwriter, placement agent or"
"Gaming Facility: A facility at which there are operations of slot machines, video lottery terminals, blackjack, baccarat, keno operation, table games, any other mechanical or computerized gaming devices, pari-mutuel wagering or other applicable types of wagering (including, but not limited to, sports wagering), or which is otherwise operated for purposes of Gaming, and all related or ancillary real property."
"Gaming License: Any license, qualification, registration, accreditation, permit, approval, finding of suitability or other authorization issued by a state or other governmental regulatory agency (including any Native American tribal gaming or governmental authority) or Gaming Authority to operate, carry on or conduct any gaming, gaming device, slot machine, video lottery terminal, table game, race book or sports pool on the Leased Property or any portion thereof, or to operate a casino at the Leased Property required by any Gaming Regulation, including each of the licenses, permits or other authorizations set forth on Schedule 1, and including those related to the Leased Property that may be added to this Lease after the Commencement Date."
"Gaming Regulation(s): Any and all laws, statutes, ordinances, rules, regulations, policies, orders, codes, decrees or judgments, and Gaming License conditions or restrictions, as amended from time to time, now or hereafter in effect or promulgated, pertaining to the operation, control, maintenance, alteration, modification or capital improvement of a Gaming Facility or the conduct of a person or entity holding a Gaming License, including, without limitation, any requirements imposed by a regulatory agency, commission, board or other governmental body pursuant to the jurisdiction and authority granted to it under applicable law, including, but not limited to, the provisions of the Nevada Gaming Control Act, as amended from time to time, all regulations of the Nevada Gaming Commission promulgated thereunder, as amended from time to time, the provisions of the Clark County Code, as amended from time to time, and all other rules, regulations, orders, ordinances and legal requirements of any Gaming Authority."
"upon which letter of credit Landlord or Fee Mortgagee (as applicable) shall have the right to draw in full: (a)if Landlord or Fee Mortgagee (as applicable) has not received at least thirty (30)days prior to the date on which the then outstanding letter of credit is scheduled to expire, a notice from the issuing financial institution that it has renewed the applicable letter of credit; (b)thirty (30)days prior to the date of termination following receipt of notice from the issuing financial institution that the applicable letter of credit will be terminated; and (c)thirty (30)days after Landlord or Fee Mortgagee (as applicable) has given notice to Tenant that the financial institution issuing the applicable letter of credit ceases to either be an Eligible Institution or meet the rating requirement set forth above."
"Market Capitalization: With respect to any Person, an amount equal to (i)the total number of issued and outstanding shares of Equity Interests of such Person on the date of determination multiplied by (ii)the arithmetic mean of the closing sale price per share of such Equity Interests as reported in composite transactions for the principal securities exchange on which such Equity Interests are traded for the thirty (30)consecutive trading days (excluding any such trading day in which a material suspension or limitation was imposed on trading on such securities exchange) immediately preceding the date of determination. If such Equity Interests are not so traded, are not so reported or such Persons Market Capitalization is otherwise not readily observable, such Persons Market Capitalization for purposes of this Lease shall be its equity value based on a valuation by a valuation firm that is acceptable to both Landlord and Tenant and that is not an Affiliate of either Landlord or Tenant. For the purposes of this definition, the number of issued and outstanding shares of Equity Interests of a person shall not include shares held (a)by a Subsidiary of such person or (b)by such person as treasury stock or otherwise."
"Material Capital Improvement: Any single or series of related Capital Improvements that would or does (i)have a total budgeted or actual cost (as reasonably evidenced to Landlord) (excluding land acquisition costs) in excess of Fifty Million and No/100 Dollars ($50,000,000.00) and (ii)either (a)materially alter the Facility (e.g., shoring, permanent framework reconfigurations), (b)expand the Facility (i.e., construction of material additions to existing Leased Improvements) or (c)add improvements to undeveloped portion(s) of the Land."
"Minimum Cap Ex Reduction Amount: In each instance in which any Material Leased Property is removed from this Lease or any Other Leases (as applicable), the landlord under an Other Lease disposes of an Other Leased Property with respect to an Other Facility and a third party Severance Lease (as defined in the Other Leases) is executed, Landlord disposes of all of the Leased Property and this Lease is assigned to a third party Acquirer, an Other Lease"
"(2) In the event of expiration, cancellation or termination of any Ground Lease for any reason whatsoever whether voluntary or involuntary (by operation of law or otherwise) prior to the expiration date of this Lease, including extensions and renewals granted thereunder, then, thereafter, the Net Revenue attributable to the portion of the Leased Property subject to such Ground Lease shall not be included in the calculation of Net Revenue for the applicable base year, provided, that if Landlord (or any Fee Mortgagee) enters into a replacement lease with respect to substantially the same Ground Leased Property, then the Net Revenue attributable to such expired, cancelled or terminated Ground Lease shall once again be included in the calculation of Net Revenue for the applicable base year."
"(4) If Tenant assumes operation of space that in the applicable base year was operated under a Sublease with a Subtenant that was not wholly-owned by Guarantor, or if all of the direct or indirect ownership interests in a Person that was a Subtenant in the applicable base year are acquired by Guarantor (in either case, such that after entering into such Sublease revenue that would otherwise be included in Net Revenue for the applicable base year pursuant"
"(1) With respect to any Sublease from Tenant to a Subtenant in which Guarantor directly or indirectly owns less than fifty percent (50%) of the ownership interests, Net Revenue shall not include Gaming Revenues, Retail Sales or Promotional Allowances received by such Subtenant but shall include the rent and/or fees and all other consideration received by Tenant pursuant to such Sublease."
"Primary Intended Use: (i) Hotel and resort and related uses, (ii)gaming and/or pari-mutuel use, including, without limitation, horsetrack, dogtrack and other similarly gaming-related sporting uses, (iii)ancillary retail and/or entertainment use, (iv)such other uses required under any Legal Requirements (including those mandated by any applicable regulators), (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 hotel, resort and gaming industry use, and/or (vii)such other use as shall be approved by Landlord from time to time in its reasonable discretion."
"Qualified Transferee: A transferee that satisfies all of the following requirements: (a)such transferee, unless the Qualified Replacement Guarantor is CEC, (1)has, collectively with the Qualified Replacement Guarantor, a Market Capitalization (exclusive of the Leased Property) of no less than Four Billion and No/100 Dollars ($4,000,000,000.00), (2) has or is Controlled by a Person that has demonstrated expertise in owning or operating real estate or gaming properties and (3)shall Control Tenant and shall Control, be Controlled by or be under common Control with Qualified Replacement Guarantor, (b)such transferee and all of its applicable officers, directors, Affiliates (including the officers and directors of its Affiliates), to the extent required under applicable Gaming Regulations or other Legal Requirements, (i)are licensed and certified by applicable Gaming Authorities and hold all required Gaming Licenses to operate the Facility in accordance herewith and (ii)are otherwise found suitable to lease the Leased Property in accordance herewith, (c)such transferee has not been the subject of a material governmental or regulatory investigation which resulted in a conviction for criminal activity involving moral turpitude and has not been found liable pursuant to a non-appealable judgment in a civil proceeding for attempting to hinder, delay or defraud creditors, (d)such transferee has never been convicted of, or pled guilty or no contest to, a Patriot Act Offense and is not on any Government List; (e)such transferee has not been the subject of a voluntary or involuntary (to the extent the same has not been discharged) bankruptcy proceeding during the prior five (5)years from the applicable date of determination; (f)such transferee is not, and is not Controlled by an Embargoed Person or a person that has been found unsuitable for any reason or has had any application for a Gaming License withdrawn with prejudice by any applicable Gaming Authority; (g)such transferee and its equity holders comply with any Fee Mortgagees customary know your customer requirements; (h)such transferee shall not be a Landlord Prohibited Person and (i)such transferee is not associated with a person who has been found unsuitable, denied a Gaming License or otherwise precluded from participation in the Gaming Industry by any Gaming Authority where such association may adversely affect any of Landlords or its Affiliates Gaming Licenses or Landlords or its Affiliates then-current standing with any Gaming Authority; provided, however, so long as CEC remains the Guarantor and a wholly-owned subsidiary of CEC remains the Manager hereunder, such transferee shall not be required to satisfy requirement (a)to be deemed a Qualified Transferee hereunder."
"(i) Base Rent shall equal (x)for the eighth (8th) Lease Year, the product of eighty percent (80%) of Rent in effect as of the last day of the seventh (7th) Lease Year, multiplied by the Escalator, and (y)for each Lease Year from and after the commencement of the ninth (9th) Lease Year until the Initial Stated Expiration Date, the Base Rent payable for the immediately preceding Lease Year, as applicable, multiplied by the Escalator in each case."
"(x) in the event that the annual Net Revenue for the Fiscal Period ending immediately prior to the end of the seventh (7th) Lease Year (the First VRP Net Revenue Amount) exceeds the Base Net Revenue Amount (any such excess, the Year 8 Increase), the Year 8-10 Variable Rent shall equal the Variable Rent Base increased by an amount equal to the product of (a)thirteen percent (13%) and (b)the Year 8 Increase; or"
"(B) For each Lease Year from and after the commencement of the eleventh (11th) Lease Year until the Initial Stated Expiration Date (the Second Variable Rent Period), Variable Rent shall be equal to a fixed annual amount equal to the Year 8-10 Variable Rent, adjusted as follows (such resulting annual amount being referred to herein as the Year 11-15 Variable Rent):"
"(x) in the event that the annual Net Revenue for the Fiscal Period ending immediately prior to the end of the tenth(10th) Lease Year exceeds the First VRP Net Revenue Amount (any such excess, the Year 11 Increase), the Year 11-15 Variable Rent shall equal the Year 8-10 Variable Rent increased by an amount equal to the product of (a)thirteen percent (13%) and (b)the Year 11 Increase; or"
"(B) in the event that the annual Net Revenue for the Fiscal Period ending immediately prior to the end of the Preceding Lease Year is less than the annual Net Revenue for the Fiscal Period ending immediately prior to the Lease Year five(5) years prior to the Preceding Lease Year (i.e., (x) in respect of the first (1st) Renewal Term, the tenth (10th) Lease Year and (y)in respect of each subsequent Renewal Term, the Lease Year immediately preceding the first (1st) Lease Year of the immediately preceding Renewal Term) (any such difference, the respective Renewal Term Decrease), the Variable Rent for such Renewal Term shall equal the Variable Rent in effect as of the last day of the Preceding Lease Year decreased by an amount equal to the product of (a)thirteen percent (13%) and (b)such Renewal Term Decrease."
"System-wide IP: All of the Intellectual Property (in each case, excluding Property Specific IP and Property Specific Guest Data) that (i)Services Co or any of its Subsidiaries currently license, contemplate to license or otherwise provide to facilitate the provision of services by or on behalf of Services Co or any of its Subsidiaries to any properties owned by CEOC or its Affiliates, (ii)Services Co or any of its Subsidiaries currently provide or contemplate to provide pursuant to, or is otherwise necessary for the performance of, any Property Management Agreement (as defined in the Omnibus Agreement), (iii) is necessary for the provision of Enterprise Services (as defined in the Omnibus Agreement) by Services Co, (iv)"
"Taking: Any taking of all or any part of the Leased Property and/or the Leasehold Estate or any part thereof, in or by Condemnation, including by reason of the temporary requisition of the use or occupancy of all or any part of the Leased Property by any governmental authority, civil or military."
"Total Net Leverage Ratio: With respect to any Person and its Subsidiaries on a consolidated basis, on any date, the ratio of (i)(a) the aggregate principal amount of (without duplication) all indebtedness consisting of Capital Lease Obligations, indebtedness for borrowed money, unreimbursed obligations in respect of drawn letters of credit (but excluding contingent obligations under outstanding letters of credit) and other purchase money indebtedness and guarantees of any of the foregoing obligations, of such Person and its Subsidiaries determined on"
"Triennial Allocated Minimum Cap Ex Amount B Ceiling: The difference of (a)the Triennial Minimum Cap Ex Amount B, minus (b)the Triennial Allocated Minimum Cap Ex Amount B Floor (as defined in the Non-CPLV Lease). Notwithstanding anything herein to the contrary, fifty percent (50%) of all Capital Expenditures constituting Material Capital Improvements shall be credited toward the Triennial Allocated Minimum Cap Ex Amount B Ceiling applicable to the Triennial Period during which such Capital Expenditures were incurred and the other fifty percent (50%) of such Capital Expenditures constituting Material Capital Improvements shall not be credited toward the Triennial Allocated Minimum Cap Ex Amount B Ceiling."
"Services Co Capital Expenditures, (b)Capital Expenditures by any subsidiaries of Tenant that are non-U.S. subsidiaries or are unrestricted subsidiaries as defined under Tenants debt documentation, (c)any Capital Expenditures of Tenant related to gaming equipment, (d)any Capital Expenditures of Tenant related to corporate shared services, nor (e)any Capital Expenditures with respect to properties that are not included in the Leased Property or Other Leased Property. The Triennial Minimum Cap Ex Amount B shall be decreased from time to time (x)in the event of any partial termination of either this Lease or the Other Leases in connection with any Condemnation or in connection with a Casualty Event, in either case in accordance with the express terms of this Lease or the Other Leases (as applicable), in either case that results in the removal of Material Leased Property from this Lease or the Other Leases (as applicable); and (y)in connection with either (i)to the extent applicable to any Other Leases, any disposition of Other Leased Property by a landlord under the Other Leases in accordance with Article XVIII of the Other Leases and the execution of a third party Severance Lease with respect to such removed Other Leased Property, or (ii)any disposition of all of the Other Leased Property under any Other Lease in accordance with Article XVIII of such Other Lease and the assignment of such Other Lease to a third party Acquirer (as defined in such Other Lease); with such decrease, in each case of clause (x)or (y) above, being equal to the applicable Minimum Cap Ex Reduction Amount. Notwithstanding anything herein to the contrary, fifty percent (50%) of all Capital Expenditures and Other Capital Expenditures constituting Material Capital Improvements or Other Material Capital Improvements shall be credited toward the Triennial Minimum Cap Ex Amount B applicable to the Triennial Period during which such Capital Expenditures or Other Capital Expenditures were incurred and the other fifty percent (50%) of such Capital Expenditures and Other Capital Expenditures constituting Material Capital Improvements or Other Material Capital Improvements shall not be credited toward the Triennial Minimum Cap Ex Amount B. Without limitation of anything set forth in the foregoing, it is acknowledged and agreed that any Capital Expenditures with respect to any one or more of the London/Chester Properties shall not be included in the calculation of the Triennial Minimum Cap Ex Amount B."
"(b) Any refund due from any taxing authority in respect of any Imposition paid by or on behalf of Tenant shall be paid over to or retained by Tenant, and any refund due from any taxing authority in respect of any Imposition paid by or on behalf of Landlord, if any, shall be paid over to or retained by Landlord."
"4.3 Compliance Certificate. Landlord shall deliver to Tenant, promptly following Landlords receipt thereof, any bills received by Landlord for items required to be paid by Tenant hereunder, including, without limitation, Impositions, utilities and insurance. Promptly upon request of Landlord (but so long as no Event of Default is continuing no more frequently than one time per Fiscal Quarter), Tenant shall furnish to Landlord a certification stating that all or a specified portion of Impositions, utilities, insurance premiums or, to the extent specified by Landlord, any other amounts payable by Tenant hereunder that have, in each case, come due prior to the date of such certification have been paid (or that such payments are being contested in good faith by Tenant in accordance herewith) and specifying the portion of the Leased Property to which such payments relate."
"4.4 Impound Account. At Landlords option following the occurrence and during the continuation of a monetary Tenant Event of Default (to be exercised by thirty (30)days written notice to Tenant), and provided Tenant is not already being required to impound such payments in accordance with the requirements of Section31.3 below, Tenant shall be required to deposit, at the time of any payment of Rent, an amount equal to one-twelfth (1/12th) of the sum of (i)Tenants estimated annual real and personal property taxes required pursuant to Section4.1 hereof (as reasonably determined by Landlord), (ii) Tenants estimated annual insurance premium costs pursuant to Article XIII hereof (as reasonably determined by Landlord), and (iii)the amount of annual rent payable under the Octavius Ground Lease. Such amounts shall be applied to the payment of the obligations in respect of which said amounts were deposited, on or before the respective dates on which the same or any of them would become due. The reasonable cost of administering such impound account shall be paid by Tenant. Nothing in this Section4.4 shall be deemed to affect any other right or remedy of Landlord hereunder."
"Except as otherwise specifically provided in this Lease, Tenant shall remain bound by this Lease in accordance with its terms. The obligations of Landlord and Tenant hereunder shall be separate and independent covenants and agreements and the Rent and all other sums payable by Tenant hereunder shall continue to be payable in all events unless the obligations to pay the same shall be terminated pursuant to the express provisions of this Lease or by termination of this Lease as to all or any portion of the Leased Property other than by reason of an Event of Default. Without limitation of the preceding sentence, the respective obligations of Landlord and Tenant shall not be affected by reason of, except as expressly set forth in Articles XIV and XV, (i)any damage to or destruction of the Leased Property, including any Capital Improvement or any portion thereof from whatever cause, or any Condemnation of the Leased Property, including any Capital Improvement or any portion thereof or, discontinuance of any service or utility servicing the same; (ii)the lawful or unlawful prohibition of, or restriction upon, Tenants use of the Leased Property, including any Capital Improvement or any portion thereof or the interference with such use by any Person or by reason of eviction by paramount title; (iii)any claim that Tenant has or might have against Landlord by reason of any default or breach of any warranty by Landlord hereunder or under any other agreement between Landlord and Tenant or to which Landlord and Tenant are parties; (iv)any bankruptcy, insolvency, reorganization, consolidation, readjustment, liquidation, dissolution, winding up or other proceedings affecting Landlord or any assignee or transferee of Landlord; or (v)for any other cause, whether similar or dissimilar to any of the foregoing. Tenant hereby specifically waives all rights arising from any occurrence whatsoever which may now or hereafter be conferred upon it by law (a)to modify, surrender or terminate this Lease or quit or surrender the Leased Property or any portion thereof, or (b)which may entitle Tenant to any abatement, deduction, reduction, suspension or deferment of or defense, counterclaim, claim or set-off against the Rent or other sums payable by Tenant hereunder, except in each case as may be otherwise specifically provided in this Lease."
"(e) Landlord and Tenant acknowledge and agree that the Rent is the fair market rent for the use of the Leased Property and was agreed to by Landlord and Tenant on that basis, and the execution and delivery of, and the performance by Tenant of its obligations under, this Lease does not constitute a transfer of all or any part of the Leased Property, but rather the creation of the Leasehold Estate subject to the terms and conditions of this Lease."
"(a) To secure the performance of Tenants obligations under this Lease, including, without limitation, Tenants obligation to pay Rent hereunder, Tenant (on behalf of itself and on behalf of all of its Subsidiaries and Affiliates, as applicable), collectively, as debtor, hereby grants to Landlord, as secured party, a first priority security interest in all of Tenants (and all of Tenants Subsidiaries and Affiliates, as applicable) right, title and interest in and to Tenants Pledged Property now owned or in which Tenant (or any of Tenants Subsidiaries and Affiliates, as applicable) hereafter acquires an interest or right. This Lease constitutes a security agreement covering all such Tenants Pledged Property. The Parties acknowledge that the security interest granted hereunder is subject to the terms and conditions of the Intercreditor Agreement."
"(d) Notwithstanding the foregoing or anything herein to the contrary, Landlord may not foreclose upon or exercise remedies against Landlords security interest in Tenants Pledged Property unless and until both (i)the Landlords Enforcement Condition has occurred and (ii)this Lease has either (1)been rejected in bankruptcy (and no Permitted Leasehold Mortgagee is entitled to obtain a New Lease in accordance with Section17.1(f) hereof) or (2)terminated by Landlord pursuant to Section16.2(x) hereof; provided, however, that notwithstanding the foregoing or anything otherwise set forth in this Lease Landlord may, (I)at any time take such actions as are available to a secured creditor in any bankruptcy, insolvency or dissolution proceeding, and (II)commence foreclosure proceedings and otherwise take steps in connection with exercising its remedies under this Section6.3 with respect to Tenants Pledged Property after the occurrence and during the continuance of a Tenant Event of Default, so long as (x)Landlord does not consummate such foreclosure and does not complete any such other exercise of remedies which would, or take any other action which would, effect a transfer of ownership, title or possession of Tenants Pledged Property prior to termination or rejection of the Lease (and failure of any Permitted Leasehold Mortgagee to obtain a New Lease in accordance with Section17.1(f) hereof), and (y)during any period that any Permitted Leasehold Mortgagee is entitled to cure a Tenant Event of Default or obtain a New Lease pursuant to and in accordance with Sections 17.1(d), (e) and (f)of this Lease, as the case may be, Landlord does not impair or interfere with the exercise of any rights of Tenant hereunder (including but not limited to cure rights) or any rights of any Permitted Leasehold Mortgagee (including but not limited to cure rights) with respect to Tenants Pledged Property as set forth hereunder or in the Intercreditor Agreement. Notwithstanding anything herein to the contrary, the lien and security interest granted to Landlord pursuant to this Lease in the Tenants Pledged Property and the exercise of any right or remedy by Landlord hereunder against the Tenants Pledged Property are subject to the provisions of the Intercreditor Agreement. Subject to the restriction effected by clause (x)above, in the event of any conflict between the terms of the Intercreditor Agreement and this Lease, the terms of the Intercreditor Agreement shall govern and control."
"7.5 Operating Standard. Tenant shall cause the Facility to be Operated (as defined in the MLSA) in a Non-Discriminatory (as defined in the MLSA) manner, in accordance with the Operating Standard (as defined in the MLSA) and subject to Managers Standard of Care (as defined in the MLSA) (in each case as and to the extent required under the MLSA, including as provided in Section2.1.1, Section2.1.2, Section2.1.3, Section2.1.4, Section2.3.1, and Section2.3.2 of the MLSA, but subject to Section5.9.1 of the MLSA), in each case except to the extent failure to do so does not result in a material adverse effect on Landlord or on the Facility. For avoidance of doubt, the provisions of this Section7.5 and Section16.1(f) hereof shall continue to apply even if the Facility is being managed pursuant to a Replacement Management Agreement."
"9.4 End of Term. Subject to Sections 17.1(f) and 36.1, Tenant shall, upon the expiration or earlier termination of the Term, vacate and surrender and relinquish in favor of Landlord all rights to the Leased Property (together with all Capital Improvements, including all Tenant Capital Improvements, except to the extent provided in Section10.4 in respect of Tenant"
"(c) Such Work shall not, and, if an Architect has been engaged for such Work, the Architect shall certify to Landlord that such construction shall not, impair the structural strength of any component of the Facility or overburden the electrical, water, plumbing, HVAC or other building systems of any such component or otherwise violate applicable building codes or prudent industry practices;"
"(g) If applicable in accordance with customary and prudent industry standards, promptly following the completion of such Work, Tenant shall deliver to Landlord as built plans and specifications with respect thereto, certified as accurate by the licensed architect or engineer selected by Tenant to supervise such work, and copies of any new or revised certificates of occupancy or other licenses, permits and authorizations required in connection therewith. In addition, with respect to any Alteration or Capital Improvement having a budgeted cost equal to or less than Five Million and No/100 Dollars ($5,000,000.00), Tenant shall endeavor in good faith to (and upon Landlords request will) deliver to Landlord any as-built plans and specifications actually obtained by Tenant in connection with such Alteration or Capital Improvement."
"(d) If Tenant Declines Landlords MCI Financing Proposal. If Landlord timely submits Landlords MCI Financing Proposal and Tenant rejects or fails to accept or commence negotiating Landlords MCI Financing Proposal within the applicable 10-day period (or, following commencing negotiating said proposal, Tenant notifies Landlord of Tenants decision to cease such discussions), then, subject to the remaining terms of this paragraph, Tenant shall be permitted to either (1)use then-existing, or, subject to Article XVII, enter into a new, Third-Party MCI Financing for such Material Capital Improvement (subject to the following proviso) or (2)use Cash to pay for such Material Capital Improvement, provided, that Tenant may not use then-existing, or enter into a new, Third-Party MCI Financing, except in each case on terms that are, taken as a whole, economically more advantageous to Tenant than those offered under Landlords MCI Financing Proposal. In determining if financing is economically more advantageous,consideration may be given to, among other items, (x)pricing, amortization, length of term and duration of commitment period of such financing; (y)the cost, availability and terms of any financing sufficient to fund such Material Capital Improvement and other expenditures which are material in relation to the cost of such Material Capital Improvement (if any) which are intended to be funded in connection with the construction of such Material Capital Improvement and which are related to the use and operation of such Material Capital Improvement and (z)other customary considerations. Tenant shall provide Landlord with reasonable evidence of the terms of any such financing. If Tenant has not used then-existing, or entered into a new, Third-Party MCI Financing (or commenced such Material Capital Improvement utilizing Cash) by the date that is nine(9) months following receipt of Landlords MCI Financing Proposal, then, prior to entering into any such Third-Party MCI Financing and/or commencing such Material Capital Improvement after such nine (9)month period, Tenant shall again be required to send Tenants MCI Intent Notice seeking financing from Landlord (on the terms contemplated by this Section10.4). For purposes of clarification, Tenant may use Cash to finance any applicable Material Capital Improvement (subject to the express terms and conditions hereof, including, without limitation, Tenants obligation to provide Tenants MCI Intent Notice)."
"In the event that (1)Tenant is unable, for reasons beyond Tenants reasonable control, to satisfy any of the requirements set forth in this Section10.4(f) (and Landlord is unable or unwilling to waive the same), (2)Landlord and Tenant are unable (despite good faith efforts continuing for at least sixty (60)days after agreement on the Accepted MCI Financing Proposal) to agree on any of the requirements of, or the form of any document required under, this Section10.4(f), or (3)Landlord fails or refuses to consummate the Landlord MCI Financing and/or advance funds thereunder, then, notwithstanding anything to the contrary in this Section10.4, Tenant shall be entitled to use then- existing, or, subject to Article XVII, enter into a new, Third-Party MCI Financing for such Material Capital Improvement or use Cash to pay for such Material Capital Improvement, without any requirement to send a further Tenants MCI Intent Notice to Landlord, provided, that such Material Capital Improvement shall be treated hereunder as a Tenant Material Capital Improvement, unless the circumstances described in clause (1)shall have occurred."
"(vii) Dispositions of Material Property. In the event of a termination of this Lease or partial or total termination of an Other Lease or the disposition of any Material Leased Property or Material London/Chester Property, in each case for which the Minimum Cap Ex Amounts are to be decreased in accordance herewith, and such termination or disposition occurs"
"(viii) Application of Capital Expenditures. For the avoidance of doubt: (A)Required Capital Expenditures counted toward satisfying one of the Minimum Cap Ex Requirements also shall count (to the extent applicable) toward satisfying the other Minimum Cap Ex Requirements to the extent otherwise provided herein; (B)expenditures with respect to any property that is not included as Leased Property or Other Leased Property under this Lease or an Other Lease (as applicable) shall not constitute Capital Expenditures nor count toward the Minimum Cap Ex Requirements for purposes of the Leased Property Tests; (C)expenditures with respect to any property acquired by CEOC or its subsidiaries after the Commencement Date which is not included as Leased Property or Other Leased Property under this Lease or an Other Lease (as applicable) shall not constitute Capital Expenditures nor count toward the Minimum Cap Ex Requirements for purposes of the Leased Property Tests, and (D)expenditures with respect to any property (other than the London/Chester Properties) which is not included as Leased Property or Other Leased Property under this Lease or an Other Lease (as applicable) shall not constitute Capital Expenditures."
"(ix) Unavoidable Delays. In the event an Unavoidable Delay occurs during any full Fiscal Year or full Triennial Period during the Term that delays Tenants ability to perform Capital Expenditures prior to the expiration of such period, the applicable period for satisfying the Minimum Cap Ex Requirements applicable to such Fiscal Year or Triennial Period (as applicable) during which such Unavoidable Delay occurred shall be extended, on a day-for-day basis, for the same amount of time that such Unavoidable Delay affects Tenants ability to perform the Capital Expenditures, up to a maximum extension in each instance of one (1)Fiscal Year (for the Annual Minimum Per- Lease B&I Cap Ex Requirement) or one (1)Triennial Period (for the Triennial Minimum Cap Ex Requirement B). For the avoidance of doubt, Tenants obligation to satisfy the Minimum Cap Ex Requirements during any period during which an Unavoidable Delay did not occur shall not be extended as a result of the occurrence of an Unavoidable Delay during a prior period."
"into the Cap Ex Reserve). Furthermore, for the avoidance of doubt, and without limitation of Guarantors obligations under the MLSA (and as more particularly provided therein), Tenant acknowledges and agrees that the obligation of Tenant to expend the Required Capital Expenditures (or deposit funds into the Cap Ex Reserve) as provided in this Lease in each case constitutes a part of the monetary obligations of Tenant that are guaranteed by the Guarantor under the MLSA and, with respect to Required Capital Expenditures required to be spent during the Term, shall survive termination of this Lease."
"(e) Self Help. In order to facilitate Landlords completion of any work, repairs or restoration of any nature that are required to be performed by Tenant in accordance with any provisions hereof, upon the occurrence of the earlier of (i)an Event of Default by Tenant hereunder and (ii)any default by Tenant in the performance of such work under this Lease or as required by any applicable Additional Fee Mortgage Requirement, then, so long as (x)Landlord has provided Tenant thirty (30)days prior written notice thereof and Tenant has not cured such default within such thirty day period) and (y)an Event of Default has occurred under the Fee Mortgage Documents, Landlord shall have the right, from and after the occurrence of a default beyond applicable notice and cure periods under any applicable Fee Mortgage Documents, to enter onto the Leased Property and perform any and all such work and labor necessary as reasonably determined by Landlord to complete any work required by Tenant hereunder or expend any sums therefor and/or employ watchmen to protect the Leased Property from damage (collectively, the Landlord Work). In connection with the foregoing, Landlord shall have the right: (i)to use any funds in the FF&E Reserve or Cap Ex Reserve (as applicable) for the purpose of making or completing such Landlord Work; (ii)to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iii)to pay, settle or compromise all existing bills and claims which are or may become Liens against the Leased Property, or as may be necessary or desirable for the completion of such Landlord Work, or for clearance of title; (iv)to execute all applications and certificates in the name of Tenant which may be required by any of the contract documents; (v)to prosecute and defend all actions or proceedings in connection with the Leased Property or the rehabilitation and repair of the Leased Property; and (vi)to do any and every act which Tenant might do in its own behalf to complete the Landlord Work. Nothing in this Lease shall: (1)make Landlord responsible for making or completing any Landlord Work; (2)require Landlord to expend funds in addition to the FF&E Reserve or Cap Ex Reserve (as applicable) to make or complete any Landlord Work; (3)obligate Landlord to proceed with any Landlord Work; or (4)obligate Landlord to demand from Tenant additional sums to make or complete any Landlord Work."
"shall be subject and subordinate to the security interest granted to Landlord pursuant to Section6.3, and (y)Tenant shall in no event pledge to any Person that is not granted a Permitted Leasehold Mortgage hereunder any of Tenants Property to the extent that such Tenants Property cannot be removed from the Leased Property without (I)damaging or impairing the Leased Property (other than in a de minimis manner), (II) impairing in any material respect the operation of the Facility for its Primary Intended Use, or (III)impairing in any material respect Landlords or any Successor Tenants ability to acquire the Successor Assets at the expiration or termination of the Term in accordance with Section36.1 (after giving effect to the repayment of any indebtedness encumbering the Successor Assets and release of any liens thereon as required by such Section36.1)."
"Tenant, upon prior written notice to Landlord (except that no such notice shall be required to be given by Tenant to Landlord with respect to matters not exceeding Five Million and No/100 Dollars ($5,000,000.00)), on its own or in Landlords name, at Tenants expense, may contest, by appropriate legal proceedings conducted in good faith and with due diligence, the amount, validity or application, in whole or in part, of any licensure or certification decision (including pursuant to any Gaming Regulation), imposition of any disciplinary action, including both monetary and nonmonetary, pursuant to any Gaming Regulation, Imposition, Legal Requirement, Insurance Requirement, lien, attachment, levy, encumbrance, charge or claim; provided, that (i)in the case of an unpaid Imposition, lien, attachment, levy, encumbrance, charge or claim, the commencement and continuation of such proceedings shall suspend the collection thereof from Landlord and from the Leased Property; (ii)neither the Leased Property or any portion thereof, the Rent therefrom nor any part or interest in either thereof would be in any danger of being sold, forfeited, attached or lost pending the outcome of such proceedings; (iii)in the case of a Legal Requirement, neither Landlord nor Tenant would be in any imminent danger of criminal or material civil liability for failure to comply therewith pending the outcome of such proceedings; (iv)in the case of a Legal Requirement, Imposition, lien, encumbrance or charge, Tenant shall deliver to Landlord security in the form of cash, cash equivalents or a Letter of Credit, if and as may be reasonably required by Landlord to insure ultimate payment of the same and to prevent any sale or forfeiture of the Leased Property or any portion thereof or the Rent by reason of such non-payment or noncompliance; (v)in the case of an Insurance Requirement, the coverage required by Article XIII shall be maintained; (vi)upon Landlords request, Tenant shall keep Landlord reasonably informed as to the status of the proceedings; and (vii)if such contest be finally resolved against Landlord or Tenant, Tenant shall promptly pay the amount required to be paid, together with all interest and penalties accrued thereon, or comply with the applicable Legal Requirement or Insurance Requirement. Landlord, at Tenants expense, shall execute and deliver to Tenant such authorizations and other documents as may reasonably be required in any such contest, and, if reasonably requested by Tenant or if Landlord so desires, Landlord shall join as a party therein. The provisions of this Article XII shall not be construed to permit Tenant to contest the payment of Rent or any other amount (other than Impositions or Additional Charges contested in accordance herewith) payable by Tenant to Landlord hereunder. Tenant shall indemnify, defend, protect and save Landlord harmless from and against any liability, cost or expense of any kind that may be imposed upon Landlord in connection with any such contest and any loss resulting therefrom, except to the extent resulting from actions independently taken by Landlord (other than actions taken by Landlord at Tenants direction or with Tenants consent)."
"(ii) Such property insurance policy shall include, subject to Section13.1(a)(i) above: (i)agreed amount coverage and/or a waiver of any co-insurance; (ii)building ordinance coverage (ordinance or law) including loss of the undamaged portions, the cost of demolishing undamaged portions, and the increased cost of rebuilding; and also including, but not limited to, any non-conforming structures or uses; (iii)equipment breakdown coverage (boiler and machinery coverage); (iv) debris removal; and (v)business interruption coverage in an amount not less than two (2)years of Rent and containing an Extended Period of Indemnity endorsement for an additional minimum six months period. Subject to Section13.1(a)(i), the property policy shall cover: wind/windstorm, earthquake/earth movement and flood and any sub- limits applicable to wind (e.g. named storms), earthquake and flood are subject to the approval of the Landlord and Fee Mortgagee. Such policy shall (i)name Landlord as required pursuant to Section13.2 herein for its interests in the Leased Property and Rent; (ii)name each Fee Mortgagee and Permitted Leasehold Mortgagee as an additional insured, and (iii)include a New York standard mortgagee clause (or its equivalent) in favor of each Fee Mortgagee and Permitted Leasehold Mortgagee. Except as otherwise set forth herein, any property insurance loss adjustment settlement associated with the Leased Property shall require the written consent of Landlord, Tenant, and each Fee Mortgagee (to the extent required under the applicable Fee Mortgage Documents) unless the amount of the loss net of the applicable deductible is less than Fifty Million and No/100 Dollars ($50,000,000.00) in which event no consent shall be required."
"(c) Flood Insurance. With respect to any portion of the Leased Property that is security under a Fee Mortgage, if at any time the area in which such Leased Property is located is designated a Special Flood Hazard Area as designated by the Federal Emergency Management Agency (or any successor agency), Tenant shall obtain separate flood insurance through the National Flood Insurance Program. Such flood insurance may be provided as part of Section13.1(a) Property Insurance above."
"(e) Commercial General Liability Insurance. For bodily injury, personal injury, advertising injury and property damage on an occurrence form with coverage no less than ISO Form CG 0001 or equivalent. This policy shall include the following coverages: (i)Liquor Liability; (ii)Named Peril/Time Element Pollution, to the extent commercially available to operators of properties similar to the subject Leased Property; (iii)intentionally omitted; (iv)Terrorism Liability; and (v)a Separation of Insureds Clause."
"(j) Pollution Liability Insurance. For claims arising from the discharge, dispersal release or escape or any irritant or contaminant into or upon land, any structure, the atmosphere, watercourse or body of water, including groundwater. This shall include on and off-site clean up and emergency response costs and claims arising from above ground and below ground storage tanks. If this policy is provided on a claims made basis (i)the retroactive date shall remain as June26, 1998 for legal liability; and (ii)coverage shall be maintained for two (2)years after the Term."
"(d) In the event Tenant shall at any time fail, neglect or refuse to insure the Leased Property and Capital Improvements, or is not in full compliance with its obligations under this Article XIII, Landlord may, at its election, procure replacement insurance. In such event, Landlord shall disclose to Tenant the terms of the replacement insurance. Tenant shall reimburse Landlord for the cost of such replacement insurance within thirty (30)days after Landlord pays for the replacement insurance. The cost of such replacement insurance shall be reasonable considering the then-current market."
"14.1 Property Insurance Proceeds. All proceeds (except business interruption not allocated to rent expenses, if any) payable by reason of any property loss or damage to the Leased Property, or any portion thereof, under any property policy of insurance required to be carried hereunder shall be paid to Fee Mortgagee or to an escrow account held by a third party depositary reasonably acceptable to Landlord, Tenant and, if applicable, the Fee Mortgagee (in each case pursuant to an escrow agreement reasonably acceptable to the Parties and the Fee Mortgagee and intended to implement the terms hereof) and made available to Tenant upon request for the reasonable costs of preservation, stabilization, restoration, reconstruction and repair, as the case may be, of any damage to or destruction of the Leased Property, or any portion thereof; provided, however, that the portion of any such proceeds that are attributable to Tenants obligation to pay Rent shall be applied against Rent due by Tenant hereunder; and provided, further, that if the total amount of proceeds payable net of the applicable deductibles is Forty Million and No/100 Dollars ($40,000,000.00) or less, and, if no Tenant Event of Default has"
"(b) Partial Taking. If a portion (but not all) of the Leased Property (and, without limitation, any Capital Improvements with respect thereto) is subject to a permanent Taking (Partial Taking), this Lease shall remain in effect so long as the Facility is not thereby rendered Unsuitable for its Primary Intended Use, and Rent shall be adjusted in accordance with the Rent Reduction Amount with respect to the subject portion; provided, however, that if the remaining portion of the Facility is rendered Unsuitable for Its Primary Intended Use, this Lease shall terminate as of the day before the date of such Taking or Condemnation."
"Fee Mortgage Documents. In the event that the Fee Mortgagee elects, or is required under the related Fee Mortgage Documents, to apply the Award to the indebtedness secured by the Fee Mortgage in the case of a Taking or Condemnation as to which the restoration provisions apply, then Tenant shall not be obligated to restore the Facility and Landlord shall either (i)within six (6)months of the applicable Taking or Condemnation, make available to Tenant for restoration of the Leased Property funds (either through refinance or otherwise) equal to the amount applied to Fee Mortgage indebtedness (in which case Tenant shall be obligated to restore the Leased Property in accordance with this Lease upon receipt of such funds), or (ii)sell to Tenant the portion of the Leased Property that is not subject to the Taking or Condemnation (and Tenant shall be entitled to retain the remaining amounts of the Award (if any) to which Tenant is entitled after giving effect to the provisions concerning distribution of the Award under Section15.2) in exchange for a payment equal to the greater of (1)the difference between (a)the Fair Market Ownership Value of the Leased Property immediately prior to such Taking or Condemnation, and (b)the amount of the Award retained by the Fee Mortgagee or Landlord, and (2)the Fair Market Ownership Value (calculated without giving effect to clause (B)in the definition of Fair Market Rental Value, to the extent applicable) of the remaining portion of the Leased Property after such Taking or Condemnation, based on the average fair market value of similar real estate in the areas surrounding the Facility."
"(b) Tenant shall fail to pay any Additional Charge (excluding, for the avoidance of doubt the Minimum Cap Ex Amount) within seven (7)days after written notice from Landlord of Tenants failure to pay such Additional Charge when due (and such notice of failure from Landlord may be given any time after such payment of any Additional Charge is one (1)day late);"
"(q) unless the Guarantor EOD Conditions exist, if Guarantor shall, in any judicial or quasi-judicial case, action or proceeding, contest (or collude with or otherwise affirmatively assist any other Person, or solicit or cause to be solicited any other Person to contest) the validity or enforceability of Guarantors obligations under the MLSA (or any Qualified Replacement Guarantors obligations under a Replacement Guaranty); and"
"16.2 Landlord Remedies. Upon the occurrence and during the continuance of a Tenant Event of Default but subject to the provisions of Article XVII, Landlord may, subject to the terms of Section16.3 below, do any one or more of the following: (x)terminate this Lease by giving Tenant no less than ten (10)days notice of such termination and the Term shall terminate and all rights and obligations of Tenant under this Lease shall cease, subject to any provisions that expressly survive the Expiration Date, (y)seek damages as provided in Section16.3 hereof or (z)except to the extent expressly otherwise provided under this Lease, exercise any other right or remedy hereunder, at law or in equity available to Landlord as a result of any Tenant Event of Default. Tenant shall pay as Additional Charges all costs and expenses incurred by or on behalf of Landlord, including reasonable and documented attorneys fees and expenses, as a result of any Tenant Event of Default hereunder. Subject to ArticleXIX and Section17.1(f) hereof, at any time upon or following the Expiration Date, Tenant shall, if required by Landlord to do so, immediately surrender to Landlord possession of the Leased Property and quit the same and Landlord may enter upon and repossess such Leased Property by reasonable force, summary proceedings, ejectment or otherwise, and may remove Tenant and all other Persons and any of Tenants Property therefrom. Landlord shall refrain from exercising any remedies pursuant to this Section during any applicable cure periods of Guarantor to the extent expressly provided in Section17.2 of the MLSA."
"16.4 Receiver. Subject to the rights of Permitted Leasehold Mortgagees hereunder, upon the occurrence and continuance of a Tenant Event of Default, and upon commencement of proceedings to enforce the rights of Landlord hereunder, but subject to any limitations of applicable law (including Gaming Regulations), Landlord shall be entitled, as a matter of right, to the appointment of a receiver or receivers acceptable to Landlord of the Leased Property and of the revenues, earnings, income, products and profits thereof, pending the outcome of such proceedings, with such powers as the court making such appointment shall confer."
"(d) Nothing contained in this Article XVI or otherwise shall vitiate or limit Tenants obligation to pay Landlords attorneys fees as and to the extent provided in Article XXXVII hereof, or any indemnification obligations under any express indemnity made by Tenant of Landlord or of any Landlord Indemnified Parties as contained in this Lease."
"(ii) Landlord shall reasonably promptly following receipt of a communication purporting to constitute the notice provided for by subsection (b)(i) above (and such additional items requested by Landlord pursuant to the first sentence of Section17.1(b)(iii)) acknowledge by written notice receipt of such communication as constituting the notice provided for by subsection (b)(i) above and confirming the status of the Permitted Leasehold Mortgagee as such or, in the alternative, notify Tenant and the Permitted Leasehold Mortgagee of the rejection of such communication and any such items as not conforming with the provisions of this Section17.1 and specify the specific basis of such rejection."
"(iii) After Landlord has received the notice provided for by subsection (b)(i) above, Tenant shall with reasonable promptness provide Landlord with copies of the Permitted Leasehold Mortgage, note or other obligations secured by such Permitted Leasehold Mortgage and any other documents pertinent to the Permitted Leasehold Mortgage reasonably requested by Landlord. Tenant shall thereafter also provide Landlord from time to time with a copy of each material amendment or other modification or supplement to such instruments. All recorded documents shall be accompanied by the appropriate recording stamp or other certification of the custodian of the relevant recording office as to their authenticity as true and correct copies of official records and all nonrecorded documents shall be accompanied by a"
"(d) Right to Terminate Notice to Permitted Leasehold Mortgagee. Anything contained in this Lease to the contrary notwithstanding, if any Tenant Event of Default shall occur which entitles Landlord to terminate this Lease, Landlord shall have no right to terminate this Lease on account of such Tenant Event of Default unless Landlord shall notify every Permitted Leasehold Mortgagee for which notice has been properly provided to Landlord pursuant to Section17.1(b) hereof that the period of time given Tenant to cure such default or act or omission has lapsed and, accordingly, Landlord has the right to terminate this Lease (Right to Terminate Notice). The provisions of subsection (e)below of this Section17.1 shall apply if, during (x)the thirty (30)day period following Landlords delivery of the Right to Terminate"
"Notice if such Tenant Event of Default is capable of being cured by the payment of money, or (y)the ninety (90)day period following Landlords delivery of the Right to Terminate Notice, if such Tenant Event of Default is not capable of being cured by the payment of money, any Permitted Leasehold Mortgagee shall:"
"If the applicable default shall be cured pursuant to the terms and within the time periods allowed in this Section17.1(d), this Lease shall continue in full force and effect as if Tenant had not defaulted under the Lease. If a Permitted Leasehold Mortgagee shall fail to take all of the actions described in this Section17.1(d) prior to the deadlines set forth herein, such Permitted Leasehold Mortgagee shall have no further rights under this Section17.1(d) or Section17.1(e)."
"(iv) For the purposes of this Section17.1, no Permitted Leasehold Mortgagee shall be deemed to be an assignee or transferee of this Lease or of the Leasehold Estate hereby created by virtue of the Permitted Leasehold Mortgage so as to require such Permitted Leasehold Mortgagee, as such, to assume the performance of any of the terms, covenants or conditions on the part of Tenant to be performed hereunder; but the purchaser at any sale of this Lease (or, to the extent applicable, the direct or indirect interests in Tenant) (including a Permitted Leasehold Mortgagee if it is the purchaser at foreclosure) and of the Leasehold Estate hereby created in any proceedings for the foreclosure of any Permitted Leasehold Mortgage, or the assignee or transferee of this Lease and of the Leasehold Estate hereby created (or, to the extent applicable, the direct or indirect interests in Tenant) under any instrument of assignment or transfer in lieu of the foreclosure of any Permitted Leasehold Mortgage, shall be subject to all of the provisions, terms and conditions of this Lease including, without limitation, Section22.2(i) hereof."
"(f) New Lease. In the event that this Lease is rejected in any bankruptcy, insolvency or dissolution proceeding or is terminated by Landlord following a Tenant Event of Default other than due to a default that is subject to cure by a Permitted Leasehold Mortgagee under Section17.1(d) and Section17.1(e) above, Landlord shall provide each Permitted Leasehold Mortgagee with written notice that this Lease has been rejected or terminated (Notice of Termination), and, for the avoidance of doubt, upon delivery of such Notice of Termination, no Permitted Leasehold Mortgagee shall have the rights as described in Section17.1(d) and Section17.1(e) above, but rather such Permitted Leasehold Mortgagee instead shall have the rights described in this Section17.1(f)). Following any such rejection or termination, Landlord agrees to enter into a new lease (New Lease) of the Leased Property with such Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee for the remainder of the term of this Lease, effective as of the date of termination, at the rent and additional rent, and upon the terms, covenants and conditions (including all then-remaining options to renew but excluding requirements which have already been fulfilled) of this Lease, provided:"
"(h) Permitted Leasehold Mortgagee Need Not Cure Specified Defaults. Nothing herein contained shall require any Permitted Leasehold Mortgagee to cure any Incurable Default in order to comply with the provisions of Sections 17.1(d) and 17.1(e), or as a condition of entering into the New Lease provided for by Section17.1(f). For the avoidance of doubt, upon such foreclosure and/or the effectuation of such a New Lease in accordance with the provisions, terms and conditions hereof, any such defaults are automatically deemed waived through the effective date of such foreclosure or New Lease as to any such Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee, as the new tenant hereunder or under the New Lease, as applicable (it being understood that the provisions of this sentence shall not be deemed to relieve such new tenant of its obligations to comply with this Lease or such New Lease from and after the effective date of such foreclosure or New Lease)."
"18.1 Transfers Generally. Landlord may sell, assign, transfer or convey, without Tenants consent, the Leased Property, in whole (subject to exclusions for assets that may not be transferred and that, in the aggregate, are de minimis) but not in part (unless in part due to a transaction in which multiple Affiliates of a single Person (collectively, Affiliated Persons) will own the Leased Property as tenants in common, but only if this Lease remains as a single, indivisible Lease and all such Landlord Affiliated Persons execute a joinder to this Lease as Landlord, on a joint and several basis, the form and substance of which joinder shall be reasonably satisfactory to Tenant and Landlord) to a single transferee (such transferee, such tenants in common or any other permitted transferee of this Lease, in each case, (an Acquirer) and, in connection with such transaction, this Lease shall be assigned to the applicable Acquirer such that the Acquirer shall become successor Landlord as if an original party to this Lease. All Acquirers shall execute a joinder to the Intercreditor Agreement in form and substance reasonably acceptable to all parties thereto. If Landlord (including any permitted successor Landlord) shall convey the entire Leased Property (subject to exclusions for assets that may not be transferred and that, in the aggregate, are de minimis) in accordance with the terms of this Lease, other than as security for a debt, and the applicable Acquirer expressly assumes all"
"Gaming License or otherwise precluded from participation in the Gaming Industry by any Gaming Authority where such association may adversely affect, any of Tenants or its Affiliates Gaming Licenses or Tenants or its Affiliates then-current standing with any Gaming Authority. Any transfer by Landlord under this Article XVIII shall be subject to all applicable Legal Requirements, including any Gaming Regulations, and no such transfer shall be effective until any applicable approvals with respect to Gaming Regulations, if applicable, are obtained. Tenant shall attorn to and recognize any successor Landlord in connection with any transfer(s) permitted under this Article XVIII as Tenants landlord."
"(i) (a) subject to and in accordance with Section17.1, assign this Lease (and/or permit the assignment of direct or indirect interests in Tenant), in whole, but not in part, to a Permitted Leasehold Mortgagee for collateral purposes pursuant to a Permitted Leasehold Mortgage, (b)assign this Lease (and/or permit the assignment of direct or indirect interests in Tenant) to such Permitted Leasehold Mortgagee, its Permitted Leasehold Mortgagee Designee or any other purchaser following any foreclosure or transaction in lieu of foreclosure of the Permitted Leasehold Mortgage, and (c)assign this Lease (and/or direct or indirect interests in Tenant) to any subsequent purchaser thereafter (provided such subsequent purchaser is not CEC, any Affiliate of CEC or any other Prohibited Leasehold Agent), in each case, solely in connection with or following a foreclosure of, or transaction in lieu of foreclosure of, a Permitted Leasehold Mortgage; provided, however, that immediately upon giving effect to any Lease Foreclosure Transaction, (1)subject to the last sentence of this Section22.2, at the option of Foreclosure Successor Tenant, either of the following conditions (A)or (B) shall be satisfied (the Tenant Transferee Requirement): (A)(x) a Qualified Transferee will be the replacement Tenant hereunder or will Control, and own not less than fifty-one percent (51%) of all of the direct and indirect economic and beneficial interests in, Tenant or such replacement Tenant, (y)a replacement lease guarantor that is a Qualified Replacement Guarantor will have provided a Replacement Guaranty of the Lease, and (z)the Leased Property shall be managed pursuant to a Replacement Management Agreement by a Qualified Replacement Manager or a manager that is expressly approved in writing by Landlord or (B)(x) a transferee that satisfies the requirements set forth in clauses (b)through (i) in the definition of Qualified Transferee will be the replacement Tenant or will Control and own not less than fifty-one percent (51%) of all of the direct and indirect economic and beneficial interests in Tenant, (y)the Lease shall continue to be guaranteed by Guarantor under the MLSA (unless Landlord previously expressly consented in writing to the termination of the MLSA) (it being understood that in any event under this clause (B)Guarantors obligations under the MLSA shall continue in full force and effect, without any reduction or impairment whatsoever, and without the need to reaffirm the same), and (z)the Property shall be managed by the Manager (or a replacement manager previously appointed by Landlord following a Termination for Cause (as defined under the MLSA)) under the MLSA (or a replacement management agreement previously approved by Landlord); (2) the transferee and any other Affiliates shall have obtained all necessary Gaming Licenses as required under applicable Legal Requirements (including Gaming Regulations) and all other licenses, approvals, and permits required for such transferee to be Tenant under this Lease; (3)the transferee and its equity holders will comply with all customary know your customer requirements of any Fee Mortgagee; (4)a single Person or multiple Affiliated Persons as tenants in common (each of which satisfy the Tenant Transferee Requirement) (provided such Affiliated Persons have executed a joinder to this Lease as the Tenant on a joint and several basis, the form and substance of which joinder shall be reasonably satisfactory to Landlord) shall own, directly, all of Tenants Leasehold Estate and be Tenant under this Lease; and (5)the Foreclosure Successor Tenant shall (i)provide written notice to Landlord at"
"(v) transfer direct or indirect interests in CEC; provided, however, that in the event of a Change of Control of CEC, the qualifications, quality and experience of the management of Tenant, and the quality of the management and operation of the Facility must in each case be generally consistent with or superior to that which existed prior to such Change of Control (it being agreed that Tenant shall give no less than thirty (30)days prior notice to Landlord of any transaction or series of related transactions which would result in a Change of Control of CEC and Tenant shall furnish Landlord with such information and materials relating to the proposed transaction as Landlord may reasonably request in connection with making its determination under this clause (v) (to the extent in Tenants possession or reasonable control, subject to customary and reasonable confidentiality restrictions in connection therewith), and if Landlord determines that the quality of the management and operation of the Facility will not meet such requirement, then such determination shall be resolved pursuant to Section34.2 (except, however, for this purpose, the fifteen (15)day good faith negotiating period contemplated by Section34.2 shall not apply)); and/or"
"Notwithstanding anything otherwise contained in this Lease, Landlord and Tenant acknowledge that Landlord entered into this Lease with the expectation that (x)the Leased Property and the Other Leased Property would be under common management by the Manager pursuant to the MLSA and the Other MLSA, respectively, and (y)the Leased Property would be operated under the CPLV Brand and Trademark and other CPLV Trademark and the other Licensed Trademarks (each as defined in the CPLV Trademark License), and the Other Leased"
"(in Landlords discretion), the Subtenant shall make full and complete attornment to Landlord for the balance of the term of the Sublease, which attornment shall be evidenced by an agreement in form and substance reasonably satisfactory to Landlord and which the Subtenant shall execute and deliver within five (5)days after request by Landlord and the Subtenant shall waive the provisions of any law now or hereafter in effect which may give the Subtenant any right of election to terminate the Sublease or to surrender possession in the event any proceeding is brought by Landlord to terminate this Lease and (b)to the extent such Subtenant (and each subsequent subtenant separately permitted hereunder) is required to attorn to Landlord pursuant to subclause (a)above, the aforementioned attornment agreement shall recognize the right of the subtenant (and such subsequent subtenant) under the applicable Sublease and contain commercially reasonable, customary non- disturbance provisions for the benefit of such subtenant, so long as such Subtenant is not in default thereunder; and"
"(vii) the Facility shall be operated under the CPLV Trademark and the other Licensed Trademarks (each as defined in the CPLV Trademark License), and all of Tenants rights in, to and under Property Specific IP, Property Specific Guest Data and the CPLV Brand and Trademark License and, in the case of an assignment where the Leased Property continues to be managed by Manager or any other Affiliate of CEC, Property Related IP and other System-wide IP, shall also be assigned to the applicable assignee, in each case, to the fullest extent assignable."
"(B) quarterly unaudited financial statements, consisting of a statement of profit and loss, a balance sheet, and statement of cash flows for CEOC, together with a certificate, executed by the chief financial officer or treasurer of CEOC (A)certifying that no Tenant Event of Default has occurred or, if a Tenant Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (B)certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of CEOC and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), all of which shall be provided (x)within sixty (60)days after the end of each of the first three Fiscal Quarters of each Fiscal Year (commencing with the Fiscal Quarter ending March31, 2018); and"
"(iv) As soon as it is prepared and in no event later than sixty (60)days after the end of each Fiscal Year, a statement of Net Revenue with respect to the Facility with respect to the prior Lease Year (subject to the additional requirements as provided in Section3.2 hereof in respect of the periodic determination of the Variable Rent hereunder);"
"(vii) Within three (3)Business Days of obtaining actual knowledge of the occurrence of a Tenant Event of Default (or of the occurrence of any facts or circumstances which, with the giving of notice or the passage of time would ripen into a Tenant Event of Default and that (individually or collectively would be reasonably expected to result in a material adverse effect on Tenant or in respect of the Facility), a written notice to Landlord regarding the same, which notice shall include a detailed description of the Tenant Event of Default (or such facts or circumstances) and the actions Tenant has taken or shall take, if any, to remedy such Tenant Event of Default (or such facts or circumstances);"
"(A) at the sole cost and expense of Landlord (except with respect to the Existing Fee Mortgage, which shall be at the sole cost and expense of Tenant as provided in the final sentence of this clause (xix)), reasonably cooperate with Landlord in providing information with respect to the Property, Tenant or its Affiliates (excluding (i)any material non-public information, (ii)any Competitively Sensitive Information, and (iii)any information subject to bona fide confidentiality restrictions; provided, however, that the information described on Exhibit M shall not be so excluded even if such information qualifies within clauses (i), (ii) or (iii)of this parenthetical), to the extent reasonably requested by such Fee Mortgagee in order to satisfy the market standards to which such Fee Mortgagee customarily adheres or which may be reasonably required by prospective investors and/or rating agencies;"
"(b) Tenant understands that, from time to time, Landlord, PropCo 1, PropCo or Landlord REIT may conduct one or more financings (including for the avoidance of doubt, any securitization in connection with any such financing), which financings may involve the participation of placement agents, underwriters, initial purchasers or other persons deemed underwriters under applicable securities law. In connection with any such financings, Tenant shall, upon the request of Landlord, use commercially reasonable efforts to furnish to Landlord, to the extent reasonably requested or required in connection with any such financings, the information referred to in Section23.1(b) (subject to Section23.1(c) and Section23.1(e) as and to the extent applicable), as applicable and in each case including for any prior annual or quarterly periods as required by any Legal Requirements, as promptly as reasonably practicable after the request therefor (taking into account, among other things, the timing of any such request and any Legal Requirements applicable to Tenant, CEOC or CEC at such time). In addition, Tenant shall, upon the request of Landlord, use commercially reasonable efforts to provide Landlord and its Representatives with such management representation letters, comfort letters and consents of applicable certified independent auditors to the inclusion of their reports in applicable financing disclosure documents as may be reasonably requested or required in connection with the sale or registration of securities by Landlord, PropCo 1, PropCo or Landlord REIT. Landlord shall reimburse Tenant, CEOC and CEC, their respective Subsidiaries and their respective Representatives as promptly as reasonably practicable after the request therefor, for any reasonable and actual, documented expenses incurred in connection with any cooperation provided pursuant to this Section23.2(b) (and, unless any non-compliance with this Lease to more than a de minimis extent is revealed, any exercise by Landlord of audit rights pursuant to Section23.1(c)) (including, without limitation, reasonable and documented fees and expenses of accountants and attorneys, but excluding, for the avoidance of doubt, any such fees and expenses incurred in the preparation of the Financial Statements). In addition, Landlord shall indemnify and hold harmless Tenant, CEOC and CEC, their respective Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them (collectively, Losses) in connection with any cooperation provided pursuant to this Section23.2(b) or Section23.1(b)(xix) (including in connection with any Fee Mortgagee Securitization), except to the extent (i)such Losses were suffered or incurred as a result of the bad faith, gross negligence or willful misconduct of any such indemnified person, (ii)such Losses were caused by any untrue statement or alleged untrue statement of a material fact contained in any Financial Statements delivered by Tenant to Landlord hereunder, or caused by any omission or alleged omission to state therein a material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading or (iii)such Losses relate to a Fee Mortgagee Securitization in connection with an Existing Fee Mortgage."
"(a) Landlord agrees that, upon request of Tenant, it shall from time to time provide such information as may be reasonably requested by Tenant with respect to Landlords, PropCo 1s, PropCos and Landlord REITs capital structure and/or any financing secured by this Lease or the Leased Property in connection with Tenants review of the treatment of this Lease under GAAP."
"Upon reasonable advance written notice to Tenant, Tenant shall permit Landlord and its authorized representatives (including any Fee Mortgagee and its representatives) to inspect the Leased Property or any portion thereof during reasonable times (or at such time and with such notice as shall be reasonable in the case of an emergency) (and Tenant shall be permitted to have any such representatives of Landlord accompanied by a representative of Tenant). Landlord shall take reasonable care to minimize disturbance of the operations on the applicable portion of the Leased Property."
"No delay, omission or failure by Landlord to insist upon the strict performance of any term hereof or to exercise any right, power or remedy hereunder and no acceptance of full or partial payment of Rent during the continuance of any default or Tenant Event of Default shall impair any such right or constitute a waiver of any such breach or of any such term. No waiver of any breach shall affect or alter this Lease, which shall continue in full force and effect with respect to any other then existing or subsequent breach."
"No surrender to Landlord of this Lease or of the Leased Property or any part thereof, or of any interest therein, shall be valid or effective unless agreed to and accepted in writing by Landlord, and no act by Landlord or any representative or agent of Landlord, other than such a written acceptance by Landlord, shall constitute an acceptance of any such surrender."
"So long as no Tenant Event of Default shall have occurred and be continuing, Tenant shall peaceably and quietly have, hold and enjoy the Leased Property for the Term, free of any claim or other action by Landlord or anyone claiming by, through or under Landlord, but subject (i)to the provisions, terms and conditions of this Lease, and (ii)to all liens and encumbrances existing as of the Commencement Date, or thereafter as provided for in this Lease or consented to by Tenant. No failure by Landlord to comply with the foregoing covenant shall give Tenant any right to cancel or terminate this Lease or abate, reduce or make a deduction from or offset against the Rent or any other sum payable under this Lease, or to fail to perform any other obligation of Tenant hereunder. Notwithstanding the foregoing, Tenant shall have the right, by separate and independent action to pursue any claim it may have against Landlord as a result of a breach by Landlord of the covenant of quiet enjoyment contained in this Article XXX."
"32.1 Hazardous Substances. Tenant shall not allow any Hazardous Substance to be located in, on, under or about the Leased Property or any portion thereof or incorporated into the Facility; provided however that Hazardous Substances may be (i)brought, kept, used or disposed of in, on or about the Leased Property in quantities and for purposes similar to those brought, kept, used or disposed of in, on or about similar facilities used for purposes similar to the Primary Intended Use or in connection with the construction of facilities similar to the Leased Property and (ii)disposed of in strict compliance with Legal Requirements (other than Gaming Regulations). Tenant shall not allow the Leased Property or any portion thereof to be used as a waste disposal site or for the manufacturing, handling, storage, distribution or disposal of any Hazardous Substance other than in the ordinary course of the business conducted at the Leased Property and in compliance with applicable Legal Requirements (other than Gaming Regulations)."
"32.5 Environmental Inspections. In the event Landlord has a reasonable basis to believe that Tenant is in breach of its obligations under Sections 32.1 through 32.4, Landlord shall have the right, from time to time, during normal business hours and upon not less than five (5)Business Days written notice to Tenant (except in the case of an emergency of imminent threat to human health or safety or damage to property, in which event Landlord shall undertake reasonable efforts to notify a representative of Tenant as soon as practicable under the circumstances), to conduct an inspection of the Leased Property or any portion thereof (and Tenant shall be permitted to have Landlord or its representatives accompanied by a representative of Tenant) to determine the existence or presence of Hazardous Substances on or about the Leased Property or any portion thereof. In the event Landlord has a reasonable basis to believe that Tenant is in breach of its obligations under Sections 32.1 through 32.4, Landlord shall have the right to enter and inspect the Leased Property or any portion thereof, conduct any testing, sampling and analyses it reasonably deems necessary and shall have the right to inspect materials brought into the Leased Property or any portion thereof. Landlord may, in its discretion, retain experts to conduct the inspection, perform the tests referred to herein, and to prepare a written report in connection therewith if Landlord has a reasonable basis to believe that Tenant is in breach of its obligations under Sections32.1 through 32.4. All costs and expenses incurred by Landlord under this Section32.6 shall be the responsibility of Landlord, except solely to the extent Tenant has breached its obligations under Sections32.1 through 32.5, in which event such reasonable costs and expenses shall be paid by Tenant to Landlord as provided in Section32.4. Failure to conduct an environmental inspection or to detect unfavorable conditions if such inspection is conducted shall in no fashion constitute a release of any liability for environmental conditions subsequently determined to be associated with or to have occurred during Tenants tenancy. Tenant shall remain liable for any environmental condition related to or having occurred during its tenancy regardless of when such conditions are discovered and regardless of whether or not Landlord conducts an environmental inspection at the termination of this Lease. The obligations set forth in this Article XXXII shall survive the expiration or earlier termination of this Lease but in no event shall Article XXXII apply to matters first occurring after the later of (x)the end of the Term and (y)the date upon which Tenant shall have vacated the Leased Property and surrendered the same to Landlord, in each case to the extent such matters are not or were not caused by the acts or omissions of Tenant in breach of this Lease."
"(e) If a third appraiser is selected, Fair Market Ownership Value or Fair Market Base Rental Value or Fair Market Property Value (as the case may be) shall be the average of (x)the determination of Fair Market Ownership Value or Fair Market Base Rental Value or Fair Market Property Value (as the case may be) made by the third appraiser and (y)the determination of Fair Market Ownership Value or Fair Market Base Rental Value or Fair Market Property Value (as the case may be) made by the appraiser (selected pursuant to Section34.1(b)) whose determination of Fair Market Ownership Value or Fair Market Base Rental Value or Fair Market Property Value (as the case may be) is nearest to that of the third appraiser. Such average shall be binding and conclusive upon Landlord and Tenant as being the Fair Market Ownership Value or Fair Market Base Rental Value or Fair Market Property Value (as the case may be)."
"(j) The cost of the procedure described in this Section34.1 shall be borne equally by the Parties and the Parties will reasonably coordinate payment; provided, that if Landlord pays such costs, fifty percent (50%) of such costs shall be Additional Charges hereunder and if Tenant pays such costs, fifty percent (50%) of such costs shall be a credit against the next Rent payment hereunder."
"(c) The decision by the Arbitration Panel shall be final, binding and conclusive and shall be non-appealable and enforceable in any court having jurisdiction. All hearings and proceedings held by the Arbitration Panel shall take place in New York, New York unless otherwise mutually agreed by the Parties and the Arbitration Panel."
"36.2 Transfer of Intellectual Property. The Successor Assets shall include the Property Specific IP, the CPLV Trademark License, the CPLV Trademark Security Agreement and Successor Tenants access to the System-wide IP, which access shall be governed by that certain Transition and Management Services Agreement (CPLV). Without limiting the foregoing, Tenant shall, within thirty (30)days after the occurrence of the notice described in the first sentence of Section36.1, deliver to Landlord a copy of all CPLV Guest Data and all Property Specific Guest Data; provided, however, that Tenant shall have the right to retain and use copies of the Property Specific Guest data as required by Legal Requirements, including applicable Gaming Regulations, and with respect to any CPLV Guest Data, Tenant will have no further right, title, or interest to such CPLV Guest Data and will not be permitted to access such data for marketing, research or other activities by Tenant and unless such data cannot be expunged without destruction of any data that may be retained by the Tenant, must expunge such data, except that Tenant may retain and deliver to any governmental authority, copies of any such data to the extent required to comply with Legal Requirements, including applicable Gaming Regulations."
"(a) Anything contained in this Lease to the contrary notwithstanding, Tenant shall not without Landlords advance written consent (i)sublet, assign or enter into a management arrangement for the Leased Property on any basis such that the rental or other amounts to be paid by the subtenant, assignee or manager thereunder would be based, in whole or in part, on either (x)the income or profits derived by the business activities of the subtenant, assignee or manager or (y)any other formula such that any portion of any amount received by Landlord could reasonably be expected to cause any portion of the amounts to fail to qualify as rents from real property within the meaning of Section856(d) of the Code, or any similar or successor provision thereto; (ii)furnish or render any services to the subtenant, assignee or manager or manage or operate the Leased Property so subleased, assigned or managed; (iii)sublet, assign or enter into a management arrangement for the Leased Property to any Person (other than a taxable REIT subsidiary (within the meaning of Section856(l) of the Code, or any similar or successor provision thereto) of Landlord REIT) in which Tenant, Landlord or PropCo owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section"
"(c) Anything contained in this Lease to the contrary notwithstanding, upon request of Landlord, Tenant shall cooperate with Landlord in good faith and at no cost or expense (other than de minimis cost) to Tenant, and provide such documentation and/or information as may be in Tenants possession or under Tenants control and otherwise readily available to Tenant as shall be reasonably requested by Landlord in connection with verification of Landlord REITs real estate investment trust (within the meaning of Section856(a) of the Code, or any similar or successor provision thereto) compliance requirements. Anything contained in this Lease to the contrary notwithstanding, Tenant shall take such action as may be requested by Landlord from time to time in order to ensure compliance with the Internal Revenue Service requirement that Rent allocable for purposes of Section856 of the Code to personal property, if any, at the beginning and end of a calendar year does not exceed fifteen percent (15%) of the total Rent due hereunder as long as such compliance does not (i)increase Tenants monetary obligations under this Lease by more than a de minimis extent or (ii)materially increase Tenants nonmonetary obligations under this Lease or (iii)materially diminish Tenants rights under this Lease."
"41.5 Governing Law. (a) THIS LEASE WAS NEGOTIATED IN THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY. ACCORDINGLY, IN ALL RESPECTS THIS LEASE (AND ANY AGREEMENT FORMED PURSUANT TO THE TERMS HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OR CONFLICTS OF LAW) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA, EXCEPT THAT ALL PROVISIONS HEREOF RELATING TO THE CREATION OF THE LEASEHOLD ESTATE AND ALL REMEDIES SET FORTH IN ARTICLE XVI RELATING TO RECOVERY OF POSSESSION OF THE LEASED PROPERTY (SUCH AS AN ACTION FOR UNLAWFUL DETAINER, IN REM ACTION OR OTHER SIMILAR ACTION) SHALL BE CONSTRUED AND ENFORCED ACCORDING TO, AND GOVERNED BY, THE LAWS OF THE STATE OF NEVADA."
"41.13 Gaming Regulations. Notwithstanding anything to the contrary in this Lease, this Lease and any agreement formed pursuant to the terms hereof are subject to all applicable Gaming Regulations and all applicable laws involving the sale, distribution and possession of alcoholic beverages (the Liquor Laws). Without limiting the foregoing, each of Tenant and Landlord acknowledges that (i)it is subject to being called forward by any applicable Gaming Authority or governmental authority enforcing the Liquor Laws (the Liquor Authority) with jurisdiction over this Lease or the Facility, in each of their discretion, for licensing or a finding of suitability or to file or provide other information, and (ii)all rights, remedies and powers under this Lease and any agreement formed pursuant to the terms hereof, including with respect to the entry into and ownership and operation of a Gaming Facility, and the possession or control of Gaming equipment, alcoholic beverages or a Gaming License or liquor license, may be exercised only to the extent that the exercise thereof does not violate any applicable provisions of the Gaming Regulations and Liquor Laws and only to the extent that required approvals (including prior approvals) are obtained from the requisite governmental authorities."
"Notwithstanding anything to the contrary in this Lease or any agreement formed pursuant to the terms hereof, (subject to Section41.12) each of Tenant, Landlord, and each of Tenants or Landlords successors and assigns agree to cooperate with each Gaming Authority and each Liquor Authority in connection with the administration of their regulatory jurisdiction over the Parties, including, without limitation, the provision of such documents or other information as may be requested by any such Gaming Authorities and/or Liquor Authorities relating to Tenant, Landlord, Tenants or Landlords successors and assigns or to this Lease or any agreement formed pursuant to the terms hereof."
"If there shall occur a Licensing Event, then the Party with respect to which such Licensing Event occurs shall notify the other Party, as promptly as practicable after becoming aware of such Licensing Event (but in no event later than twenty (20)days after becoming aware of such Licensing Event). In such event, the Party with respect to which such Licensing Event has occurred, shall and shall cause any applicable Affiliates to use commercially reasonable efforts to resolve such Licensing Event within the time period required by the applicable Gaming Authorities by submitting to investigation by the relevant Gaming Authorities and cooperating with any reasonable requests made by such Gaming Authorities (including filing requested forms and delivering information to the Gaming Authorities). If the Party with respect to which such Licensing Event has occurred cannot otherwise resolve the Licensing Event within the time period required by the applicable Gaming Authorities and any aspect of such Licensing Event is attributable to any Person(s) other than such Party, then such Party shall disassociate with the applicable Persons to resolve the Licensing Event. It shall be a material breach of this Lease by Landlord if a Licensing Event with respect to Landlord shall occur and is not resolved in accordance with this Section41.13 within the later of (i)thirty (30) days or (ii)such additional time period as may be permitted by the applicable Gaming Authorities."
"(b) Each Party acknowledges that in granting any consents, approvals or authorizations under this Lease, and in providing any advice, assistance, recommendation or direction under this Lease, neither such Party nor any Affiliates thereof guarantee success or a satisfactory result from the subject of such consent, approval, authorization, advice, assistance, recommendation or direction. Accordingly, each Party agrees that neither such Party nor any of its Affiliates shall have any liability whatsoever to any other Party or any third person by reason of: (i)any consent, approval or authorization, or advice, assistance, recommendation or direction, given or withheld; or (ii)any delay or failure to provide any consent, approval or authorization, or advice, assistance, recommendation or direction (except in the event of a breach of a covenant herein not to unreasonably withhold or delay any consent or approval); provided, however, each agrees to act in good faith when dealing with or providing any advice, consent, assistance, recommendation or direction."
"bankruptcy, or any other proceeding) of any other Person; (ii)diligence, presentment, notice of acceptance, notice of dishonor, notice of presentment, or demand for payment of or performance of the obligations under this Lease or under any other document executed, or to be executed, in connection herewith and all other suretyship defenses generally; (iii)any defense that may arise by reason of any action required by any statute to be taken against any other entity comprising Tenant; (iv)any defense that may arise by reason of the dissolution or termination of the existence of any other entity comprising Tenant; (v)any defense that may arise by reason of the voluntary or involuntary liquidation, sale, or other disposition of all or substantially all of the assets of any other entity comprising Tenant; (vi)any defense that may arise by reason of the voluntary or involuntary receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, assignment, composition, or readjustment of, or any similar proceeding affecting, any other entity comprising Tenant, or any of the assets of any other entity comprising Tenant; (vii)any right of subrogation, indemnity or reimbursement against any other entity comprising Tenant at any time during which a Tenant Event of Default has occurred and is continuing or until all obligations to Landlord have been irrevocably paid and satisfied in full; (viii)any and all rights and defenses arising out of an election of remedies by Landlord, even though that election of remedies might impair or destroy any right, if any, of any other entity comprising tenant of subrogation, indemnity or reimbursement; (ix)any defense based upon Landlords failure to disclose to any entity comprising Tenant any information concerning any other entity comprising Tenants financial condition or any other circumstances bearing on Tenants ability to pay all sums payable under or in respect of this Lease or any other document executed, or to be executed, by it in connection herewith; and (x)any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in any other respects more burdensome than that of a principal. Additionally, to the extent permitted by Legal Requirements, each entity comprising Tenant waives all rights, legal and equitable, it may now or hereafter have to require marshaling of assets or to require foreclosure sales of assets in a particular order, including any rights provided by NRS 100.040 and 100.050, as such sections may be amended or recodified from time to time. Each successor and assign of each entity comprising Tenant agrees that it shall be bound by the above waiver, as if it had given the waiver itself."
"PARKING AGREEMENT AND GRANT OF RECIPROCAL EASEMENTS AND DECLARATION OF COVENANTS, RECORDED MAY3, 2016, IN BOOK 20160503 AS DOCUMENT NO. 0002965, IN THE OFFICIAL RECORDS, CLARK COUNTY, NEVADA, AND AMENDED BY THAT SECOND AMENDMENT TO SECOND AMENDED AND RESTATED PARKING AGREEMENT AND GRANT OF RECIPROCAL EASEMENTS AND DECLARATION OF COVENANTS, RECORDED , IN BOOK AS DOCUMENT NO. , IN THE OFFICIAL RECORDS, CLARK COUNTY, NEVADA."
|  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  NKC - Harrahs North Kansas City (Including Gaming Equipment)
|  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  HBR - Horseshoe Council Bluffs (Including Gaming Equipment)
|  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  UTU - Horseshoe Tunica (Including Gaming Equipment)
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"|  | | | |  | | | |  | | | |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  Memo: Amount Allocated to Non-CLV, if Any (Enter as Negative Value)"
"|  | | | |  | | | |  | | | |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  Memo: CLV Amount, if Any (Enter as Negative Value)"
|  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  JOL - Harrahs Joliet - B&I CapEx Only
|  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  UHA - Horseshoe Hammond - B&I CapEx Only
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|  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  UTU - Horseshoe Tunica - Net Revenue Only
|  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  | |  |  |  |  |  |  |  STU - Tunica Roadhouse - Net Revenue Only
"COMMENCING AT THE SOUTHERN MOST PROPERTY CORNER OF SAID LOT 1, SAID CORNER BEING A POINT ON THE NORTHERLY RIGHT-OF-WAY OF FLAMINGO ROAD, FROM WHICH POINT THE SOUTHWEST CORNER OF SOUTHEAST QUARTER (SE 1/4) OF SAID SECTION 17 BEARS NORTH 821142 WEST, 1466.24 FEET; THENCE ALONG THE BOUNDARY OF SAID LOT 1 AND SAID RIGHT-OF-WAY, NORTH 013156 EAST, 48.00 FEET; THENCE NORTH 882804 WEST, 92.55 FEET; THENCE DEPARTING SAID BOUNDARY AND RIGHT-OF-WAY, NORTH 013156 EAST, 64.36 FEET TO THE POINT OF BEGINNING;"
"THENCE NORTH 882515 WEST, 81.28 FEET; THENCE SOUTH 013445 WEST, 9.75 FEET; THENCE NORTH 882515 WEST, 20.92 FEET; THENCE NORTH 013445 EAST, 9.75 FEET; THENCE NORTH 882515 WEST, 44.74 FEET; THENCE SOUTH 013445 WEST, 21.67 FEET; THENCE NORTH 882515 WEST, 65.60 FEET; THENCE NORTH 013445 EAST, 21.67 FEET; THENCE NORTH 882515 WEST, 44.73 FEET; THENCE SOUTH 013445 WEST, 9.75 FEET; THENCE NORTH 882515 WEST, 20.93 FEET; THENCE NORTH 013445 EAST, 9.75 FEET; THENCE NORTH 882515 WEST, 82.67 FEET; THENCE NORTH 013445 EAST, 124.63 FEET; THENCE SOUTH 882515 EAST, 55.51 FEET; THENCE SOUTH 013445 WEST, 26.49 FEET; THENCE SOUTH 882515 EAST, 11.92 FEET; THENCE NORTH 013445 EAST, 10.41 FEET; THENCE SOUTH 882515 EAST, 19.42 FEET; THENCE SOUTH 013445 WEST, 10.41 FEET; THENCE SOUTH 882515 EAST, 11.92 FEET; THENCE NORTH 013445 EAST, 26.49 FEET; THENCE SOUTH 882515 EAST, 52.75 FEET; THENCE SOUTH 013445 WEST, 28.32 FEET; THENCE SOUTH 882515 EAST, 12.83 FEET; THENCE NORTH 013445 EAST, 31.99 FEET; THENCE SOUTH 882515 EAST, 53.58 FEET; THENCE SOUTH 013445 WEST, 31.99 FEET; THENCE SOUTH 882515 EAST, 8.83 FEET; THENCE NORTH 013445 EAST, 25.82 FEET; THENCE SOUTH 882515 EAST, 37.04 FEET; THENCE SOUTH 013445 WEST, 23.99 FEET; THENCE SOUTH 882515 EAST, 12.29 FEET; THENCE NORTH 013445 EAST, 2.92 FEET; THENCE SOUTH 882515 EAST, 3.42 FEET; THENCE SOUTH 013445 WEST, 4.79 FEET; THENCE SOUTH 882515 EAST, 13.82 FEET; THENCE NORTH 013445 EAST, 4.46 FEET; THENCE SOUTH 882515 EAST, 30.09 FEET; THENCE NORTH 013445 EAST, 2.32 FEET;"
" | (iii) | sublet or assigned to, or entered into a management arrangement for the Leased Property with any Person (other than a taxable REIT subsidiary (within the meaning of Section856(l) of the Code, or any similar or successor provision thereto) of Landlord REIT) in which Tenant, Landlord or PropCo owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section856(d)(5) of the Code, or any similar or successor provision thereto); or ---|---|--- "
|  | Rm Nts |  |  | Total Rev |  |  | Rm Nts |  |  | Total Rev |  |  | Rm Nts |  |  | Total Rev |  |  | Rm Nts |  |  | Total Rev |  |  | Rm Nts |  |  | Total Rev |  |  | Rm Nts |  |  | Total Rev |  |  | Rm Nts |  |  | Total Rev |  |  | Rm Nts |  |  | Total Rev |  |  | Rm Nts |  |  | Total Rev |  |  | Rm Nts |  |  | Total Rev |  |  | Rm Nts |  |  | Total Rev |  |  | Rm Nts |  |  | Total Rev |  |  | Rm Nts |  |  | Rate |  |  | Rm Rev |  |  | Bqt/Rm Nt |  |  | Bqt Min |  |  | Rev/Rm Nt |  |  | Total Rev |  04/01/2010 for 2012
|  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | 04/01/2015 for 2017
|  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  |
|  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | 04/01/2012 for 2015
|  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | 04/01/2013 for 2016
|  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | 04/01/2015 for 2018
|  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | |  | | | 04/01/2017 for 2020
"5. | The licenses, permits, and regulatory agreements, approvals and registrations relating to the Leased Property, including the Gaming Licenses, may not be, and have not been, transferred by Tenant, to any location other than the Leased Property; have not been pledged as collateral security for any other loan or indebtedness that is outstanding as of the Commencement Date (other than a junior lien or pledge in favor of any Permitted Leasehold Mortgagee); and are held by Tenant, free from restrictions or known conflicts that would materially impair the use or operation of the Leased Property as intended, are in full force and effect and in good standing and are not provisional, conditional or probationary in any manner (except in each case, to the extent that any such failure would not reasonably be expected to have a Material Adverse Effect). ---|--- "
"File Name | | | | | | | 8152 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Avanti | | Gobbio LLC |  | LEASE AGREEMENT |  | 4/1/2014 |  | 9545 - Caesars Palace - Gobbio LLC - Retail Lease Agreement - Executed Final.pdf | | | | | | | 8704 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Avanti | | GOBBIO, LLC |  | FIRST AMENDMENT TOTHELEASE AGREEMENT |  | 7/7/2014 |  | Lease Agmt_Caesars Palace and Gobbio_1st Amend_Unexecuted_7.7.14.PDF | | | | | | | 14680 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Caesars Palace Octavius Tower |  | Caesars Octavius, LLC |  | AMENDED ANDRESTATED OPERATING LEASE BETWEEN CAESARS OCTAVIUS, LLC AND DESERT PALACE, INC. |  | 10/11/2013 |  | 10 - Octavius OperatingLease (Caesars Octavius to Desert Palace).pdf | | | | | | | 14932 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Caf Americano |  | BISTRO CENTRAL, LV, LLC |  | REVIVAL OF LEASE AGREEMENT | | 6/24/2014 |  | VV1 CP Revival of Lease.pdf | | | | | | | 14933 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Caf Americano |  | Jamil Dib |  | LIMITED SECURED GUARANTY OF LEASE AGREEMENT |  | 2/6/2015 |  | VV1 CP Guaranty - Dib.pdf | | | | | | | 14931 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Caf Americano |  | Robert Kang |  | LIMITED SECURED GUARANTY OF LEASE AGREEMENT |  | 2/6/2015 |  |"
"0001.pdf | | | | | | | 8553 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Goodfellows Shoeshine |  | SLB, Inc. d/b/a Goodfellows Shoeshine of Las Vegas |  | FIRST AMENDMENT TO REVOCABLE LICENSE AGREEMENT |  | 7/1/2013 | |"
"|  | Caesars Palace Las Vegas |  | Its About Time |  | Las Vegas WatchGallery LLC d/b/a Las Vegas Watch Gallery |  | FIRST AMENDMENT TO THE LEASE AGREEMENT |  | 6/1/2014 |  | 10041 - Las Vegas Watch Gallery LLC - First Amendment to Lease Agreement - Final.pdf | | | | | | | 8628 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | King Baby |  | King Baby Studio, Inc. |  | LICENSE AGREEMENT |  | 7/9/2012 |  | 2012-07-12 Executed License Agreement Caesars Palace and King Baby Studio.pdf | | | | | | | 15247 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Kodak Roving Photographers |  | Kodak Solaris EIS Inc. |  | REVOCABLE LICENSE AGREEMENT |  | 1/1/2014 |  | Caesars 1.1.2014 - executed.pdf | | | | | | | 15248 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Kodak Roving Photographers |  | Kodak Solaris EIS Inc. |  | AMENDMENT #1 TO REVOCABLE LICENSE AGREEMENT |  | 6/24/2014 |  | Caesars Amend #1 - 6.24.2014 - executed.pdf | | | | | | | 15249 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Kodak Roving Photographers |  | Kodak Solaris EIS Inc. |  | SUBCONTRACTOR CONSENT LETTER |  | 1/24/2014 |  | Caesars Palace Subcontractor Consent Letter.pdf | | | | | | | 8630 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Landau | | The Hyman Companies, Inc. |  | RETAIL LEASE AGREEMENT |  | 9/30/2010 | | Caesars Hyman Executed Landau Kiosk Lease Agmt Sept. 30, 2010.pdf | | | | | | | 8629 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Landau | | The Hyman Companies, Inc. |  | FIRST AMENDMENT TO RETAIL LEASE AGREEMENT |  | 10/1/2011 |  | Caesars Hyman EXECUTED First Amendment to Lease-10-24-11.pdf | | | | | | | N/A |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Martin& MacArthur |  | Martin& MacArthur (Nevada), Inc. |  | LEASE |  | 8/1/2016 |  | CLVMartin& MacArthur Lease Fully Executed.pdf "
"|  | 9/30/2010 |  | First Amendmentto Development Operation Agreement Payard v1 (2).doc | | | | | | | 14872 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Payard |  | Payard Management, LLC |  | SECOND AMENDMENT TO THE DEVELOPMENT AND OPERATION AGREEMENT |  | 8/1/2015 |  |"
"Am- Fully Executed.pdf | | | | | | | 8587 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Phillips Seafood |  | Phillips Franchising LLC |  | LICENSE AGREEMENT |  | 8/14/2014 |  | 9409-Phillips Franchising, LLC-License Agreement - Fully Executed.pdf | | | | | | | 8758 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Pure Nightclub (assuming for Omnia) |  | Touch, LLC |  | AMENDED AND RESTATED LEASE |  | 4/9/2014 |  |"
"PDF | | | | | | | 14870 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Raos | | Raos Restaurant Group, LLC |  | FIRST AMENDMENT TO THE DEVELOPMENT AND OPERATION AGREEMENT |  | 11/1/2015 |  | CLV Raos First Amendment Fully Executed.pdf | | | | | | | N/A |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Roberto Coin |  | Roberto Coin, Inc. |  | LICENSE AGREEMENT |  | 10/13/2015 | | CLV Roberto Coin License Agmt Fully Executed.pdf | | | | | | | 8698 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Searsucker |  | Las Vegas Eats, LLC |  | LEASE AGREEMENT |  | 6/13/2014 |  |"
"File Name | | | | | | | 8724 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Serendipity |  | Moti Partners, LLC |  | DEVELOPMENT, OPERATION AND LICENSE AGREEMENT |  | 3/9/2015 |  | Moti_Serendipity License Agmt Fully Executed.pdf | | | | | | | 8433 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Smashburger |  | Smashburger Franchising LLC |  | FRANCHISE AGREEMENT | | 9/9/2014 |  | 10014 Smashburger CP Franchise Agreement - Fully Executed.pdf | | | | | | | 8418 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | The Forum Shops |  | The Forum Developers Limited Partnership |  | SECOND AMENDED AND RESTATED GROUND LEASE AGREEMENT |  | 2/7/2003 |  | 16 - Second Amended& Restated Ground Lease (Complete) (32936613)_(34170367_1).PDF | | | | | | | 8420 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | The Forum Shops |  | The Forum Developers Limited Partnership |  | SECOND AMENDED AND RESTATED PARKING AGREEMENT |  | 2/7/2003 |  | 16 - Second Amended& Restated Parking Agreement (32936615)_(34170365_1).PDF | | | | | | | N/A |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | The Forum Shops |  | Forum Shops, LLC |  | FIRST AMENDMENT TO SECOND AMENDED AND RESTATED PARKING AGREEMENT |  | 4/29/2016 |  | 1st Am to 2nd A&R Parking Agreement (Record....pdf | | | | | | | N/A |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | The Forum Shops |  | Forum Shops, LLC |  | FIRST AMENDMENT TO SECOND AMENDED AND RESTATED GROUND LEASE |  | 9/18/2015 |  | CLV Simon 1st Am to 2nd A&R Ground Lease.pdf | | | | | | | N/A |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | The Forum Shops |  | Forum Shops, LLC |  | SECOND AMENDMENT TO SECOND AMENDED AND RESTATED GROUND LEASE |  | 4/14/2016 |  | CLV Forum 2nd Am to 2nd A&R Ground Lease Fully Executed.pdf "
"File Name | | | | | | | 8677 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Vittorio |  | Vittorio, LLC d/b/a Vittorio |  | LEASE AGREEMENT |  | 11/15/2010 |  | Executed Vittorio Lease Agmt 11-15-10.pdf | | | | | | | N/A |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Vittorio |  | Vittorio, LLC |  | FIRST AMENDMENT TO LEASE |  | 7/1/2015 |  | 194-RE-CLV Vittorio 1st Am - Fully Executed.pdf | | | | | | | N/A |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Vittorio |  | Vittorio, LLC |  | SECOND AMENDMENT TO LEASE |  | 7/1/2015 |  | CLV Vittorio 2nd Am Fully Executed.pdf | | | | | | | N/A |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Vittorio |  | Vittorio, LLC |  | THIRD AMENDMENT TO LEASE |  | 7/1/2016 |  | CLV Vittorio 3d Am Fully Executed.pdf | | | | | | | 15250 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Wyndham Kiosks |  | Wyndham Vacation Resorts, Inc. |  | LICENSE AGREEMENT |  | 11/1/2006 |  | Wyndham Executed Agreement.pdf | | | | | | | 8771 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Wyndham Kiosks |  | Wyndham Vacation Resorts, Inc. |  | FIRST AMENDMENT TO LICENSE AGREEMENT |  | 11/1/2009 |  | Wyndham Vacation Resorts Executed First Amendment.pdf | | | | | | | 8554 |  | Desert Palace LLC |  | Caesars Palace Las Vegas |  | Wyndham Kiosks |  | Wyndham Vacation Resorts, Inc. |  | SECOND AMENDMENT TO LICENSE AGREEMENT |  | 10/1/2013 |  | 8365 - Wyndham (Caesars Palace) - Second Amendment - Final.pdf "
"|  |  | 14,305,500 |  |  |  | 16,425,264 |  |  |  | 16,311,502 |  |  |  | 2,006,002 |  |  |  | (2,373 | ) |  |  | (949,350 | ) * * *"
"|  |  | 14,883,442 |  |  |  | 16,425,264 |  |  |  | 16,311,502 |  |  |  | 1,428,060 |  |  |  | 137,741 |  |  |  | 55,096,265 |  * * *"
|  | Original Agreement Rent/BaseRent (w/ minimum Escalator) |  |  | Rent Allocation |  |  | 467 Rent |  |  | 467 Rent Adjustment |  |  | 467 Interest |  |  | 467 Loan Balance Beginning of Period |  Oct-22
"2. Title, Duties and Responsibilities. While Executive is employed by the Company, Executive will serve as the Chief Legal Officer and Corporate Secretary of OptiNose,Inc. and will report to 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 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."
"(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."
"(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."
"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."
"(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):"
"(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."
"(d) If the 280G Firm determines that one or more reductions are required under this Section7, such Payments shall be reduced in the order that would provide Executive with the largest amount of after-tax proceeds (with such order, to the extent permitted by Sections 280G and 409A of the Code, designated by Executive, or otherwise determined by the 280G Firm) to the extent necessary so that no portion thereof shall be subject to the Excise Tax, and the Company shall pay such reduced amount to Executive. Executive shall at any time have the unilateral right to forfeit any equity award in whole or in part."
"(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."
"(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."
(j) Injunctive Relief. It is further expressly agreed that the Employer will or would suffer irreparable injury if Executive were to violate the provisions of this Section8 and that the Employer would by reason of such violation be entitled to injunctive relief in a court of appropriate jurisdiction and Executive further consents and stipulates to the entry of such injunctive relief in such court prohibiting Executive from violating the provisions of this Section8.
"13. 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."
"3. Effective Date; Revocation. Executive acknowledges and represents that he has been given [twenty-one (21)][forty-five (45)] days during which to review and consider the provisions of this Agreement and, specifically, the General Release set forth in Section1 above. Executive further acknowledges and represents that he has been advised by the Company that he has the right to revoke this Agreement for a period of seven (7)days after signing it. Executive acknowledges and agrees that, if he wishes to revoke this Agreement, he must do so in a writing, signed by him and received by the Company no later than 5:00 p.m.Eastern Time on the seventh (7th) day of the revocation period. If no such revocation occurs, the General Release and this Agreement shall become effective on the eighth (8th) day following his execution of this Agreement and shall be final and binding on Executive."
"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."
B. The Premises. Premises is the office space located in an area of the Building which is shown as outlined and labeled as the Premises on the floor plan attached hereto as Exhibit B. The Premises are known or are to be known by the suite number(s) specified in Paragraph 1.01 A above.
"2.02 Construction of Tenant Finish Improvements and Possession. Landlord will perform or cause to be performed the work, if any, set forth on Exhibit D attached hereto (Landlords Work). Landlord shall perform Landlords Work in accordance with the terms of Exhibit D and otherwise in compliance with all applicable laws, rules, regulations, codes and ordinances, subject to events and delays due to Acts of God, force majeure or other matters or occurrences beyond the reasonable control of Landlord and for which Landlord will not be liable to Tenant in any way. Upon delivery of possession of the Premises to Tenant, Landlord covenants that the Premises shall be habitable in accordance with and required by applicable law, and Landlord and Tenant shall execute the Acceptance of Premises Amendment, which, besides fixing the Commencement Date and Expiration Date, will contain acknowledgments that Tenant has accepted the Premises in the then present condition thereof, and that the Premises and the Building are satisfactory in all respects except for minor punch list items agreed to in writing by Landlord and Tenant, which Landlord will promptly remedy. If Tenant takes possession of the Premises, Tenant shall be deemed to have accepted the Premises even though the Acceptance of Premises Amendment may not have yet been executed. Other than Landlords Work, Tenant shall make all other necessary improvements to the Premises to operate Tenants business (Tenants Work). Tenants Work shall comply with all applicable statutes, ordinances, regulations and codes and shall strictly comply with the requirements of Paragraph 7.03 hereof. In the event that Landlord is unable to deliver possession of the Premises upon the Scheduled Commencement Date due to matters or occurrences within Landlords reasonable control, then Tenant shall, as its sole remedy, be entitled (a)to recover from Landlord, and Landlord shall pay to Tenant upon the actual Commencement Date and delivery of the Premises to Tenant, the aggregate holdover rent paid by Tenant for its currently occupied premises with respect to the period from and after the Scheduled Commencement date to the actual Commencement Date at a rate not to exceed $3,440 per month, and (b)to rent-free dry storage of Tenants boxed and secured laboratory equipment, which Landlord shall at its expense move to and store in the Building pending completion and delivery of possession of the Premises to Tenant."
"irreparable damage to Landlord and that it will be impossible to estimate or determine the damage that will be suffered by Landlord in such an event. Therefore during such tenancy, unless Landlord has otherwise agreed in writing, Tenant agrees to pay to Landlord monthly Base Rent at a rate equal to 125% of the monthly Base Rent which was payable in the month immediately preceding the month in which the expiration or termination occurs and to be otherwise bound by all of the terms, covenants and conditions contained in this Lease. If Tenant fails to surrender the Premises upon the termination of this Lease, in addition to any other liabilities to Landlord arising therefrom Tenant shall indemnify and hold Landlord harmless from loss or liability resulting from such failure from whatever source. In the event that this Lease is extended by Landlord and Tenant in writing after any prior termination, the parties agree that the Base Rent negotiated for the extension term shall control over and apply to the tenancy of Tenant in the Premises without regard to the holdover rent provided for herein."
"3\. Succeeding Year Expenses. Prior to the beginning of each Adjustment Year, Landlord shall advise Tenant of the estimated amount, if any, of the increase in Operating Expenses, Taxes and Insurance Expenses over the Base Year, for the upcoming calendar year, and Tenant shall pay to Landlord Tenants Pro Rata Share of such estimated increase in equal monthly installments on the first day of each month during that Adjustment Year together with the Base Rent. At the end of each Adjustment Year, Landlord shall ascertain and advise Tenant of Tenants Pro Rata Share of the actual amount of any increase in Operating Expenses, Taxes and Insurance Expenses for the preceding year and any additional sum owed by Tenant to Landlord shall be paid to Landlord within thirty (30)days following the receipt of Landlords notice thereof. Should any excess have been paid by Tenant to Landlord for the preceding year, Landlord shall apply the excess toward sums due for the next following calendar year."
"3.04 Late Charge. If any payment due Landlord under this lease has not been received by Landlord within ten (10)days after the same has become due, a late charge of five percent (5%)of the amount of the payment so overdue may be charged, and an additional five percent (5%)late charge may be charged on the first day of each calendar month thereafter until the delinquent payment has been paid in full."
"4.01 As security for the performance and observance by Tenant of all of its obligations under this Lease, Tenant has deposited with Landlord the sum specified in Paragraph 1.01E, which sum shall be held by Landlord as a security deposit during the Term. If Tenant performs and observes all of it obligations under this Lease, Landlord shall return the security deposit, or balance thereof then held by Landlord, without interest, to Tenant within thirty (30)days after the Expiration Date or after Tenant surrenders possession of the Premises, whichever is later. In the event of a default by Tenant under this Lease, whether in payment of rent or otherwise, then Landlord may, at its option and without notice, apply all or any part of the security deposit in payment of such rent or to cure any other such default; and if Landlord does so, Tenant shall, upon request, deposit with Landlord the amount so applied so that Landlord will have on hand at all times during the Term the full amount of the security deposit. Landlord may commingle the security deposit with Landlords other funds."
"5.02 Compliance with Building Rules and Regulations. Rules and regulations governing the use and occupancy of the Premises and all other leased space in the Building have been adopted by Landlord for the mutual benefit and protection of all the tenants in the Building (as existing and modified from time to time, the Rules and Regulations). Tenant shall comply with and conform to the Rules and Regulations currently in effect, which are set forth on Exhibit E attached hereto. Landlord shall have the right to amend the Rules and Regulations or to make new Rules and Regulations from time to time in any reasonable manner upon at least ten (10)days prior written notice to the Tenant. Any such amendments or additions to the Rules and Regulations shall be set forth in writing and shall be given to Tenant, who shall thereafter comply with and conform to the same. The Landlord shall use its good faith and commercially reasonable efforts to apply the Rules and Regulations in an even-handed non-discriminatory manner to all tenants of the Building."
"7.02 Repair and Maintenance of Premises. Tenant shall keep and maintain the interior of the Premises and all improvements thereto (including, but not limited to Tenant Finish Improvements) in good order, condition, and repair, reasonable wear and tear excepted. Such requirement notwithstanding, Landlord shall repair and maintain the Premises and the Building, including building standard plumbing, heating, ventilating, air conditioning and electrical systems installed or furnished by Landlord, and the cost of all such repairs shall be included by Landlord as part of the Operating Expenses, unless such maintenance and repairs are caused in part or in whole by the act, neglect, fault of or omission of any duty by Tenant, its agents, servants, employees or invitees, in which case Tenant shall pay to Landlord, as Additional Rent, the reasonable cost of such maintenance and repairs. Tenant shall immediately notify Landlord in writing of any needed repairs and in the event of any damage or casualty to the Premises. If Landlord provides any nonstandard services and/or supplies to Tenant or the Leased Premises (including, without limitation, photocopies, carpet cleaning, repairs, locks, additional keys, additional directory strips and replacement specialty light bulbs) at Tenants request, all charges for these services imposed by Landlord together with all applicable sales tax or other taxes thereon shall be billed to Tenant and payable by Tenant as Additional Rent."
"8.03 Rental Abatement during Reconstruction. In the event of any damage or destruction of the Premises or Building to the extent that the Premises shall have been rendered unfit for use for Tenants business purposes, Landlord shall, in Landlords sole discretion, either (1)relocate Tenant in another comparable building within a three (3)mile radius with comparable office space and Landlord shall pay all reasonable uninsured moving expenses of said relocation and rent shall remain as specified within this Lease; or (2)provide an abatement of rent which shall be made corresponding to the time during which, and the extent to which, the Premises may not be used by Tenant for its business purposes. The abatement of rent will terminate on the day that Landlord has completed its repair of the Premises and tenders possession of the Premises to Tenant."
"8.04 Landlords Damage Obligations. No damages, compensations, setoffs or claims shall be payable by Landlord for inconvenience, loss of business or annoyance arising from any repair or restoration of any portion of the Premises or of the Building required to be made by Landlord under the provisions of this Article VIII, but this paragraph shall not be construed to limit the abatement of Tenants rent in accordance with Paragraph 8.03 above. Landlord covenants with Tenant that it shall use its best commercially reasonable efforts to effect all such repairs promptly and in such manner as to not unreasonably interfere with Tenants occupancy."
"|  | Commercial General Liability Insurance policies shall name Landlord as an additional insured. All insurance carried by Tenant shall be in a form approved by Landlord and in an insurance company approved by Landlord, authorized to do business in the State and have a policy holders rating of no less than A and with a financial class size of IX or better in the most current edition of Bests Insurance Reports. Upon the commencement of this Lease and prior to the expiration of any of its required insurance policies, and at interim dates upon Landlords reasonable request, Tenant shall furnish Landlord with a certificate or certificates of insurance confirming the existence and continuity of coverage. All policies maintained by Tenant in conformance with the requirements of this Lease shall provide at least thirty (30)days advance written notice to Landlord of cancellation, material change or intent not to renew and ten (10)days notice to Landlord for non-payment. Should Tenant fail to carry such insurance and/or furnish Landlord with a copy of all such certificates after a request to do so, Landlord shall have the right to obtain such insurance and collect the cost thereof from Tenant as Additional Rent or, at Landlords discretion, to evict Tenant and all its business operations from the Premises, without liability to Landlord."
"8.08 Landlords Insurance. Landlord shall be responsible for insuring and shall at all times during the Term carry, as an operating expense for the Building, a policy of insurance which insures the Building, including the Premises, against loss or damage by fire or other casualty (namely, the perils against which insurance is afforded by the standard insurance policy and"
"9.01 In the event the Building, or any portion thereof necessary, in the sole opinion of Landlord, to the continued efficient and/or economically feasible use of the Building shall be taken or condemned in whole or in part for public purposes, or sold to a condemning authority to prevent taking, then the Term shall, at the option of Landlord, forthwith cease and terminate. All compensation awarded for such taking or conveyance shall be the property of Landlord without any deduction therefrom for any present or future estate of Tenant, and Tenant hereby assigns to Landlord all its right, title and interest in and to any such award. All compensation awarded is subject to the rights of Landlords mortgagee. However, Tenant shall have the right to recover from such authority, but not from Landlord, such compensation as may be awarded to Tenant on account of moving and relocation expenses and depreciation to and removal of Tenants trade fixtures and personal property as long as such award does not diminish the award to Landlord, and if Landlord receives any such awards in favor of Tenant, Landlord shall promptly remit the same to Tenant. Upon receipt of written notice of any such pending condemnation action, Landlord shall so notify Tenant."
"10.01 Tenant will keep the Premises and Building free and clear of all mechanics and materialmens liens and other liens on account of work done for Tenant or persons claiming under it. Should any such lien be filed against the Premises and/or the Building, Landlord may, without notice to Tenant, elect to obtain the release of each lien and any sums expended by Landlord shall be immediately repaid to Landlord by Tenant together with interest at the rate of fifteen percent (15%)per annum. Should Tenant elect to dispute the amount required to release such lien or the"
"11.01 Tenant shall pay before delinquency any and all taxes, assessments, fees or charges, including any sales, gross income, rental, business occupation or other taxes, levied or imposed upon Tenants business operations in the Premises and any personal property or similar taxes levied or imposed upon Tenants trade fixtures, leasehold improvements or personal property located within the Premises. In the event any such taxes, assessments, fees or charges are charged to the account of, or levied or imposed upon the property of, Landlord, Tenant shall reimburse Landlord for the same as Additional Rent. Notwithstanding the foregoing, Tenant shall have the right to contest in good faith any such item and to defer payment, if permitted by applicable law, until after Tenants liability therefore is finally determined."
"13.01 Landlord shall have the right to subordinate this Lease to any mortgage or deed of trust presently existing or hereafter placed upon the Building, and the recording of any such mortgage or deed of trust shall make it prior and superior to this Lease regardless of the date of execution or recording of either document. Tenant shall, at Landlords request, execute and deliver to Landlord, without cost, any instrument which may be deemed necessary or desirable by Landlords lender to confirm the subordination of this Lease; and, if Tenant fails or refuses to do so, Landlord may execute such instrument in the name and as the act of Tenant. Notwithstanding the foregoing, no default by Landlord under any such mortgage or deed of trust shall affect Tenants rights hereunder so long as Tenant is not in default under this Lease. Tenant shall, in the event any proceedings are brought forth for foreclosure of any such mortgage or deed of trust, attorn to the purchaser upon any such foreclosure and recognize such purchaser as Landlord under this Lease."
"Tenant shall not cause or permit any Hazardous Material (as hereinafter defined) to be brought upon, kept, or used in or about the Premises by Tenant, its agents, employees, contractors or invitees, except for such Hazardous Material as is necessary to Tenants business provided that Tenant has notified Landlord that it will be bringing upon, keeping or using such Hazardous Material on or about the Premises."
"17.03 Americans with Disabilities Act. Any costs for alterations, additions or improvements required to modify the Common Areas of the Building in conjunction with the Americans with Disabilities Act (ADA) shall be paid by Landlord, and the cost thereof (excluding the amount of any fines or penalties assessed against Landlord for knowing and intentional non-compliance with the ADA), shall be an Operating Expense of the Building. Such alternations, additions or improvements shall be made In the sole discretion of Landlord. Any alterations, additions or improvements required to modify the Premises in conjunction with the ADA shall be approved by Landlord and paid by Tenant. Within ten (10)days after receipt, Tenant shall advise Landlord in"
"18.01 Notices. Any notice by Tenant to Landlord must be served by overnight delivery service (with confirmation of delivery), U.S. certified mail, postage prepaid, return receipt requested, addressed to Landlord at the place designated in Paragraph 1.01H, or at such other address as Landlord may designate from time to time by written notice. Any notice by Landlord (which may be given by Landlord or Landlords attorney or management company) to Tenant must be served by overnight delivery service (with confirmation of delivery), U.S. certified mail, postage prepaid, return receipt requested, addressed to Tenant at the place designated in Paragraph 1.01H, or at such other address as Tenant may designate from time to time by written notice to Landlord. All notices shall be effective upon delivery or attempted delivery, and shall be deemed delivered three (3)business days after deposit in the U.S. mail, in accordance with this Paragraph 18.01."
"provisions of this Lease have not been changed except as otherwise represented by Landlord; (ii)that this Lease has not been canceled or terminated except as otherwise represented by Landlord; (iii)that not more than one months Base Rent or other charges have been paid in advance; and (iv)that Landlord is not in default under the Lease. In such event, Tenant shall be estopped from denying the truth of such facts. Tenant shall also, on 20 days written notice, provide an agreement in favor of and in the form customarily used by such encumbrance holder, by the terms of which Tenant will agree to give prompt written notice to any such encumbrance holder in the event of any casualty damage to the Premises or in the event of any default on the part of Landlord under this Lease, and will agree to allow such encumbrance holder a reasonable length of time after notice to cure or cause the curing of such default before exercising Tenants right of self-help under this Lease, if any, or terminating or declaring a default under this Lease, In the event Tenant fails to timely deliver any document under this Paragraph 19.02, Landlord may charge Tenant a penalty of Fifty Dollars ($50) for each day such delivery is delinquent."
"11\. Tenant will not occupy or permit any portion of the Premises to be occupied as an office for a public stenographer or typist, or for the possession, storage, manufacture, or sale of liquor, narcotics, dope, tobacco (except vending machine sale of tobacco for the convenience of Tenants employees) in any form, or as a barber or manicure shop, or as a public employment bureau or agency, or for a public finance (personal loan) business. Tenant will not permit the Premises to be used for lodging or sleeping or for any immoral or illegal purpose. Tenant will not use or permit the use of the Premises in any manner which involves the unusual risk of injury to any person. No cooking will be done or permitted by Tenant on the Premises, except in area of the Premises which are specially constructed for cooking, and except that use by Tenant of Underwriters Laboratory - approved microwave equipment or equipment for brewing coffee, tea, hot chocolate and similar beverages will be permitted so long as such use is in accordance with all applicable federal, state and city laws, codes, ordinances, rules and regulations."
"14\. Tenant will not deface any part of the Premises or the Building of which they form a part. Without the prior written consent of Landlord, Tenant will not lay linoleum or other similar floor covering. If such floor covering is to be used, an interlining of builders deadening felt will be first affixed to the floor, by a paste of other material soluble in water. The use of cement or other similar adhesive material is expressly prohibited. In those portions of the Premises in which carpet has been provided directly or indirectly by Landlord, Tenant will at its own expense install and maintain pads to protect the carpet under all furniture having casters other than carpet casters,"
"17\. Tenant will see that the doors of the Premises are closed and locked and that all water faucets, water apparatus and utilities are shut off before Tenant or Tenants employees leave the Premises, so as to prevent waste or damage, and for any default or carelessness in this regard Tenant will make good all injuries sustained by other tenants or occupants of the Building or Landlord. On multiple-tenancy floors, all tenants will keep the doors to the Building corridors closed at all times except for ingress and egress."
"23\. All persons entering or leaving the Building after standard hours of operation including Saturday, Sunday, and holidays will comply with such off- hours regulations as Landlord may establish and modify from time to time. Landlord reserves the right to limit or restrict access to the Building during such time periods."
"29\. Tenant will store all of its trash and garbage within the Premises. No material will be placed in the trash boxes or receptacles if such material is of such nature that it may not be disposed of in the ordinary and customary manner of removing and disposing of trash and garbage without being in violation of any law or ordinance governing such disposal. All garbage and refuse disposal will be made only through entryway and elevators provided for such purposes and at such times as Landlord may designate. Removal of any furniture or furnishings, large equipment, packing crates, packing materials and boxes will be the responsibility of Tenant, and such items may not be disposed of in the Building trash receptacles, nor will they be removed by the Buildings janitorial service, except at Landlords sole option and at Tenants expense. No furniture, appliances, equipment or flammable products of any type may be disposed of in the Building trash receptacles."
"THIS ADDENDUM TO LEASE is entered into by and between DHB Properties. LLC, a Kentucky professional services corporation (Landlord), and Apellis Pharmaceuticals, Inc., a Delaware corporation (Tenant) to amend the terms of the Lease (Lease) between Tenant and Landlord for certain office space located The Bluegrass Eye Building, 8400 Westwind Way, Crestwood, Kentucky, designated as Suite A."
"THIS ACCEPTANCE OF PREMISES AMENDMENT to the Lease by and between DHB Properties, LLC, (Landlord), and Apellis Pharmaceuticals, Inc., (Tenant), is intended to amend the terms of the Lease between Landlord and Tenant for certain office space located in The Bluegrass Eye Building, 6400 Westwind Way, Crestwood, Kentucky, 40014 known as Suite ."
"| | | | ---|---|---|---|--- |  | (b) |  | The monthly installments of Base Rent due and payable to Landlord for the Original Premises shall increase as of March1, 2016 (based on an annual rental amount of $18.00 per square foot), and will be due and payable to Landlord by Tenant in monthly amounts of $3,160.50 commencing on March1, 2016, and continuing on the first (1sl)day of each month thereafter through the remaining Term as extended by this Third Addendum. | |  | First Expansion Premises: | | |  |"
"|  | Base Rent for the area of the Premises which comprises the First Expansion Space shall commence on October7, 2014, and shall be due and payable to Landlord by Tenant in monthly installments of $2,398.42 (based on an annual rental amount of $17.00 per square foot) on October7, 2014, and continuing on the first (1st)day of each month thereafter through February 2016. | | |  | (b) |  | The monthly installments of Base Rent due and payable to Landlord for the area of the Premises which comprises the First Expansion Space shall increase as of March1, 2016 (based on an annual rental amount of $18.00 per square foot), and will be due and payable to Landlord by Tenant in monthly amounts of $2,539.50 commencing on March1, 2016, and continuing on the first (1st)day of each month thereafter through the remaining Term as extended by the Third Addendum. | |  | Second Expansion Premise | | 5. |  | (a) |  | Base Rent for the area of the Premises which comprises the Second Expansion Space shall commence on delivery estimated to be July15, 2015 and shall be due and payable to Landlord by Tenant in monthly installments of $4,710.42 (based on an annual rental amount of $17.00 per square foot) and continuing on the first (1sl)day of each month thereafter through February 2016. | | |  | (b) |  | The monthly Installments of Base Rent due and payable to Landlord for the area of the Premises which comprises the Second Expansion Space shall increase as of March1, 2016 (based on an annual rental amount of $18.00 per square foot), and will be due and payable to Landlord by Tenant In monthly amounts of $4,987.50 commencing on March1, 2016, and continuing on the first (1st)day of each month thereafter through the remaining Term as extended by the Third Addendum, | 6. |  | Tenant Finish: The Landlords Work with regard to the Second Expansion Space is out depicted and described on Exhibit B attached hereto and made a part hereof (the Tenant Finish), and Tenant shall be responsible for and shall pay the cost of the Tenant Finish, up to an agreed aggregate maximum amount of $207,788.00 (the Tenant Contribution), in two stages as follows: | | |  | (a) |  | On or about , Landlord shall provide to Tenant a copy of an invoice from the general contractor (the General Contractor) for one-half (1/2)of the cost of the Tenant Finish, which invoice amount Tenant shall directly pay to the General Contractor up to a maximum amount of $89,644. * * *"
"|  | |  | |  | |  | Title: |  | COO |  | | | | | |  | LANDLORD: |  | |  | DHB Properties, LLC a Kentucky limited liability company |  | | | | | | |  | |  | |  | By: |  |"
"Ten (10) years and five (5) months, commencing on the date on which Landlords Work is substantially completed (as defined in Exhibit D below) (the Term Commencement Date); and ending at 5:00 p.m. on the last day of the calendar month that is ten (10) years and five (5) months following the anniversary of the Term Commencement Date, subject to adjustment as mutually agreed to by Tenant and Landlord and earlier termination as provided in the Lease. Promptly following the Term Commencement Date, Landlord and Tenant shall execute and deliver the Form of Confirmation of Term and Rent Commencement Dates attached hereto as Exhibit I. ---|--- "
"and septic expenses; (I) the review of independent auditors; and (J) the Buildings share of the expenses (as described below in this Section 4(b)(2)) per the Reciprocal Easement Agreement (Book 63958, Page 511) & Elmwood Park Subdivision Plan (Plan No. 496 of 2014) recorded in the Middlesex Registry of Deeds, which may be amended from timetotime (the REA); the REA is attached hereto as Exhibit H."
"The Buildings pro rata share, as referred to in subsection (J) above, of the costs of operating, managing, maintaining and cleaning (including, without limitation, snow and ice removal) the common areas and facilities of Elmwood Park (the Park) shared by the Building and other buildings in the Park, include, without limitation, the costs of landscaping, insurance, security, snow plowing/sanding; the cost of maintaining and repairing the entrance and side roads and sidewalks within the Park, the drainage system, the Park directory and signage, the irrigation system and the street lights; and the cost of providing electricity to the street lights.The Buildings pro rata share (as referred to in the preceding sentence) shall be equal to a fraction, the numerator of which is the total number of rentable square feet of floor area in the Building and the denominator of which is the total number of rentable square feet of floor area in all the buildings in the Park, from timetotime."
"(3)Operating Costs shall not include costs for (i) any increase in Landlords insurance rates which may result from the negligent failure of Landlord or its agents, employees or contractors to comply with the provisions of this Lease; (ii) depreciation; (iii) principal and interest payments on debt and amortization of debt; (iv) the cost of leasehold improvements, including redecorating work, for other tenants of the Building; (v) fees and expenses (including legal and brokerage fees) for procuring new tenants for the Building or settling disputes with tenants of the Building; (vi) costs incurred in financing or refinancing of the Building; (vii) the cost of any work or service performed for any tenant in the Building (other than Tenant) to a materially greater extent or in a materially more favorable manner than that furnished generally to tenants (including Tenant) in the Building; (viii) capital improvements and all costs and expenses which are capital in nature; (ix) the cost of any item included in Operating Costs to the extent that Landlord is actually reimbursed for such cost by an insurance company, a condemning authority, another tenant or any other party; (x) ground rent; and (xi) Taxes (defined below); (xii) federal income taxes imposed on or measured by the income of Landlord from the operation of the Building; and (xiii) the costs of electricity for space demised to tenants, whether or not vacant (i.e., any space other than Common Areas)."
"(7)Tenant shall have the right to examine, copy and audit Landlords books and records establishing Operating Costs for any calendar year during the Term, for a period of ninety (90) days following the date that Tenant receives the Operating Costs and Tax Statement for such calendar year from Landlord.Tenant shall give Landlord not less than thirty (30) days prior written notice of its intention to examine and audit such books and records, which examination and audit shall be conducted (i) at the place where Landlord maintains its books and records for the Property, (ii) by a certified public accountant applying GAAP, and (iii) only on a noncontingency fee basis.Tenant represents and warrants that except to the extent disclosure is required by applicable law or to enforce Tenants rights hereunder, all its employees and agents granted access to such books and records shall keep all information provided by Landlord for the purpose of such audit, as well as the results of such audit, strictly confidential, and all third parties engaged by Tenant for the purpose of conducting such audit shall be apprised by Tenant of the confidential nature of such information, and at Landlords option, all such third parties shall be required to agree in writing to maintain the confidentiality of all such information, except to the extent strictly necessary to enforce Tenants rights hereunder.Tenant or its agents may make paper copies (but not electronic copies) of Landlords books and records, provided that (i) all such paper copies shall be returned to Landlord and accounted for upon the conclusion of the audit, (ii) no such paper copies shall be removed from Landlords office where such audit is being conducted, and (iii) Tenant and its agents conducting such audit shall not make any paper or electronic copies or such copies.All costs of the examination and audit shall be borne by Tenant, unless it is determined that Tenant was overcharged by more than 5%, in which case the cost of the audit shall be borne by Landlord.If, pursuant to the audit, the payments made for such calendar year by Tenant exceed Tenants required payment on account thereof for such calendar year, Landlord shall credit the amount of overpayment against subsequent obligations of Tenant with respect to Operating Costs (or, if the Lease Term has ended and Tenant has no further obligation to Landlord, refund such overpayment within thirty (30) days following the conclusion of such examination and audit); but, if the payments made by Tenant for such calendar year are less than Tenants required payment as established by the examination and audit, Tenant shall pay the deficiency to Landlord within thirty (30) days after conclusion of the examination and audit."
"All past due payments required of Tenant hereunder shall bear interest after the date due until paid at the lesser of 10% per annum or the maximum lawful rate of interest; additionally, Landlord may charge Tenant a fee equal to five (5%) of the delinquent payment or $250, whichever is greater (the Inconvenience Penalty), to reimburse Landlord for its cost and inconvenience incurred as a consequence of Tenants delinquency.Notwithstanding the foregoing, Tenant shall not be required to pay the Inconvenience Penalty with respect to the first delinquent payment in any calendar year during the Term, unless such payment is still not made on or before the day on which such failure to pay becomes an Event of Default.Payments made following such date shall be subject to imposition of the Inconvenience Penalty as of the day following the day on which such payment is due, regardless of whether the same is the first late payment in any calendar year.In no event, however, shall the charges permitted under this Section 5 or elsewhere in this Lease, to the extent they are considered to be interest under applicable Law, exceed the maximum lawful rate of interest."
"The reduction set forth above shall automatically be applied to the monthly installment of Basic Rent then due and payable under this Lease. If, however, Tenant provides the Security Deposit in the form of a Letter of Credit as set forth below in Section 6(b) below, and Tenant is entitled to the Reduction(s) as set forth above, then Landlord agrees to reasonably cooperate with Tenant to amend the Letter of Credit to reflect such Reduction(s)."
"In the event Tenant fails timely to deliver to Landlord a Substitute Letter of Credit.Then Landlord shall have the right, at any time after such event, without giving any further notice to Tenant, to draw down the Letter of Credit and to hold the proceeds thereof (the Security Proceeds) in accordance with this Section 6(b).If Landlord draws down the Letter of Credit pursuant to this Section, then: (1) such draw and Landlords right to hold the Security Proceeds pursuant to this Section shall be Landlords sole remedy based on Tenants failure to timely deliver a Substitute Letter of Credit as required hereunder;and (2) upon the expiration or prior termination of the Term, Landlord shall return to Tenant any Security Proceeds then being held by Landlord, to the extent that any such Security Proceeds exceed the amounts then due from Tenant to Landlord."
"(b)Landlords Right to Perform Tenants Obligations.Following thirty (30) days prior written notice to Tenant, Landlord may perform any of Tenants maintenance, repair, and replacement obligations and any other items that are Tenants obligations pursuant to Section 9(b) that Tenant has failed to perform, andTenant shall reimburse Landlord for the cost incurred in so doing within thirty (30) days after being invoiced therefor."
"(c)Excess Utility Use.Tenant shall not install any electrical equipment requiring special wiring or requiring voltage exceeding the Buildings current capacity unless approved in advance by Landlord.The use of electricity in the Premises shall not exceed the capacity of existing feeders and risers to or wiring in the Premises.Any risers or wiring required to meet Tenants excess electrical requirements shall, upon Tenants written request, be installed by Landlord, at Tenants cost, if, in Landlords judgment, the same are necessary and shall not cause permanent damage to the Building or the Premises, cause or create a dangerous or hazardous condition, entail excessive or unreasonable alterations, repairs, or expenses, or interfere with or disturb other tenants of the Building.If Tenant uses machines or equipment in the Premises which affect the temperature otherwise maintained by the air conditioning system or otherwise overload any utility, Landlord may install supplemental air conditioning units or other supplemental equipment in the Premises, and the cost thereof, including the cost of installation, operation, use, and maintenance, shall be paid by Tenant to Landlord within 30 days after Landlord has delivered to Tenant an invoice therefor.Tenant shall ensure that its employees, contractors, agents, invitees and any persons making deliveries to the Premises do not transport freight, inventory or equipment of any kind in the passenger elevators serving the Building."
"(b)Consent Standards.Landlord shall not unreasonably withhold, condition or delay its consent to any proposed Transfer, provided that the proposed transferee (i) is creditworthy, (ii) has a good reputation in the business community, (iii) will only use the Premises for Tenants Permitted Use, (iv) is not a governmental entity, or subdivision or agency thereof, and (v) is not another occupant of the Building or person or entity with whom Landlord is negotiating to lease space in the Building."
"(c)Request for Consent.If Tenant requests Landlords consent to a proposed Transfer, then Tenant shall provide Landlord with a written description of all terms and conditions of the proposed Transfer, copies of the proposed documentation, and the following information about the proposed transferee: name and address; reasonably satisfactory information about its business and business history; its proposed use of the Premises; banking, financial, and other credit information; and general references sufficient to enable Landlord to determine the proposed transferees creditworthiness and reputation.Tenant shall also reimburse Landlord promptly upon request for its reasonable attorneys fees incurred in connection with considering any request for consent to a proposed Transfer, such amount not to exceed $5,000."
"liable therefor.Landlords consent to any Transfer shall not waive Landlords rights as to any subsequent Transfers.If an Event of Default occurs while the Premises or any part thereof are subject to a Transfer, then Landlord, in addition to its other remedies, may collect directly from such transferee all rents becoming due to Tenant and apply such rents against Rent.Tenant authorizes its transferees to make payments of rent directly to Landlord upon receipt of notice from Landlord to do so. Tenant shall pay for the cost of any demising walls or other improvements necessitated by a proposed subletting or assignment. In the event of an assignment by Tenant that has been approved by the Landlord which is to an entity which has acquired or succeeded to a substantial part of Tenants business and which undertakes in writing to fully perform and discharge all of Tenants obligations and liabilities, Tenant shall not assume, jointly and severally with such assignee, the performance of Tenants obligations hereunder."
"(e)Additional Compensation.Tenant shall pay to Landlord, immediately upon receipt thereof, one half of the excess of (1) all compensation received by Tenant for a Transfer less the costs reasonably incurred by Tenant with unaffiliated third parties in connection with such Transfer (i.e., brokerage commissions, legal expenses, tenant finish work or concessions, and the like) over (2) the Basic Rent and Additional Rent allocable to the portion of the Premises covered thereby.If for any assignment, transfer or sublease so approved by the Landlord, Tenant receives rent or other consideration, either initially or over the term of the assignment or sublease, in excess of the rent called for hereunder, or in case of sublease of part, in excess of such rent allocable to the part, after appropriate adjustments to assure that all other payments called for hereunder are appropriately taken into account, Tenant shall pay to Landlord as Additional Rent 50% of such excess of such payment of rent or other consideration received by the Tenant promptly after its receipt.Tenant shall reimburse Landlord for any costs or expenses incurred pursuant to any request by Tenant for consent to any such assignment, transfer or subletting."
"Commercial general liability insurance, including contractual liability coverage, in amounts of $1,000,000 per occurrence, $2,000,000 aggregate insuring Tenant, Landlord, Landlords agents and their respective Affiliates against liability for injury to or death of a person or persons or damage to property arising from the use and occupancy of the Premises, Landlord (35 Parkwood Realty LLC), Management Company (Parsons Commercial Group, Inc.) and Maintenance Company (Commercial Maintenance Solutions LLC) shall be included as additional insureds pursuant to ISO Form U GL 1175 D CW or replacement thereof, and proof of insurance may be requested from timetotime showing Landlord and management company as additional insured; ---|---|--- "
"(d)Waiver of Negligence; Mutual Waiver of Subrogation.Landlord and Tenant each hereby releases the other, its officers, directors, employees and agents, from any and all liability or responsibility (to the other or anyone claiming through or under them by way of subrogation or otherwise) for any damage, theft, destruction, loss, or loss of use of any property (a Loss) covered by valid and collectible insurance, even if such loss or damage shall have been caused by the fault or negligence of the other party, or anyone for whom such party may be responsible.However, this release shall be applicable and in force and effect only with respect to Loss or damage (a) actually recovered from an insurance company and (b) occurring during such time as the releasers insurance policies shall contain a clause or endorsement to the effect that any such release shall not adversely affect or impair said policies or prejudice the right of the releaser to recover thereunder.Landlord and Tenant each agrees that any fire and extended coverage insurance policies will include such a clause or endorsement as long as the same shall be obtainable without extra costs, or, if extra cost shall be charged therefore, so long as the other party pays such extra cost.If extra cost shall be chargeable therefor, each party shall advise the other party and of the amount of the extra cost, and the other party, at its election, may pay the same, but shall not be obligated to do so. Each party shall cause its insurance carrier to endorse all applicable policies waiving the carriers rights of recovery under subrogation or otherwise against the other party."
"(g)Blanket Policies.Nothing contained herein shall prevent Tenant from taking out insurance of the kind and in the amounts provided for herein under a blanket insurance policy or policies covering properties other than the Premises, provided however, that any such policy or policies of blanket insurance (a) shall specify therein, or Tenant shall furnish Landlord with the written statement from the insurers under such policy or policies, specifying the amount of the total insurance allocated to the Premises, which amounts shall not be less than the amounts required herein, and (b) amounts so specified shall be sufficient to prevent any of the insureds from being a coinsurer within the terms of the applicable policy or policies, and provided further, however, that any such policy or policies of blanket insurance shall, as to the Premises, otherwise comply as to endorsements and coverage with the provisions herein."
"(a)Subordination.This Lease shall be subordinate to any deed of trust, mortgage, or other security instrument, or any ground lease, master lease, primary lease or other similar encumbrance (each, a Mortgage) that now or hereafter covers all or any part of the Premises (the mortgagee under any such mortgage or the lessor under any such lease is referred to herein as a Landlords Mortgagee), subject to Landlords delivery of an SNDA as set forth in Section 13(e) below.Any Landlords Mortgagee may elect, at any time, unilaterally, to make this Lease superior to its mortgage, ground lease, or other interest in the Premises by so notifying Tenant in writing."
"(c)Notice to Landlords Mortgagee.Tenant shall not seek to enforce any remedy it may have for any default on the part of Landlord without first giving written notice by certified mail, return receipt requested, specifying the default in reasonable detail, to any Landlords Mortgagee whose address has been given to Tenant, and affording such Landlords Mortgagee a reasonable opportunity to perform Landlords obligations hereunder."
"(a)Terminate this Lease by giving Tenant written notice thereof, in which event Tenant shall immediately vacate and surrender the Premises and deliver possession thereof to Landlord and shall pay to Landlord the sum of (1) all Rent accrued hereunder through the date of termination, (2) all amounts due under Section 20(a), and (3) an amount equal to (A) the total Rent that Tenant would have been required to pay for the remainder of the Term, plus Landlords estimate of aggregate expenses of reletting to the Premises, minus (B) the then present fair rental rate value of the Premises for such period;"
"(a)To decorate and to make inspections, repairs, alterations, additions, changes, or improvements, whether structural or otherwise, in and about the Building, or any part thereof; and, during the continuance of any such work, to temporarily close doors, entryways, public space, and corridors in the Building; to temporarily and insubstantially interrupt or temporarily and insubstantially suspend Building services and facilities; to change the name of the Building; and to change the arrangement and location of entrances or passageways, doors, and doorways, corridors, elevators, stairs, restrooms, or other public parts of the Building;"
"(c)To enter upon the Premises at reasonable hours, upon 24 hours prior written notice, which may be by email (except in cases of real or apparent emergency, in which case no notice shall be required) and to show the Premises to prospective purchasers, lenders, or, during the last 12 months of the Term of the Lease, to prospective tenants, provided that Landlord doses not materially interfere with Tenants business.The Landlord may also show the Premises at any time if the Tenant is in default under the terms of this Lease.Landlord agrees that it will coordinate in good faith with Tenant with regard to work to be performed in the Premises by Landlord, and use commercially reasonable efforts to minimize the interference of such work with Tenants business operations in the Premises."
"(g)Separability.If any clause or provision of this Lease is illegal, invalid, or unenforceable under present or future laws, then the remainder of this Lease shall not be affected thereby and in lieu of such clause or provision, there shall be added as a part of this Lease a clause or provision as similar in terms to such illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable."
"(j)No Merger.There shall be no merger of the leasehold estate hereby created with the fee estate in the Premises or any part thereof if the same person acquires or holds, directly or indirectly, this Lease or any interest in this Lease and the fee estate in the leasehold Premises or any interest in such fee estate."
"(s)Confidentiality.Tenant acknowledges that the terms and conditions of this Lease are to remain confidential for Landlords benefit, and may not be disclosed, except to the extent required by applicable law or regulation (including applicable stock exchange regulations), by Tenant or Tenants broker to anyone, by any manner or means, directly or indirectly, without Landlords prior written consent, except for Tenants partners, lenders, accountants and attorneys who have been advised of the confidentiality provisions contained herein and agree to be bound by the same.Tenant shall also cause its broker to keep all such information regarding this Lease confidential, and shall include in its agreement with said broker an affirmative duty of broker to keep all such information confidential. The consent by Landlord to any disclosures shall not be deemed to be a waiver on the part of Landlord of any prohibition against any future disclosure."
"If any lender or governmental agency shall ever require testing to ascertain whether or not there has been any release of Hazardous Materials, then the reasonable costs thereof shall be reimbursed by Tenant to Landlord upon demand as additional charges but only if such requirement applies to the Premises and are the result of the acts or omissions of any Tenant Party or any other person acting under Tenant during the term of this Lease. In addition, Tenant shall execute affidavits, representations and the like, from timetotime, at Landlords written request concerning Tenants best knowledge and belief regarding the presence of Hazardous Materials on the Premises."
"In addition to the requirements set forth above, Tenant shall, within ten (10) days of receipt, provide to Landlord copies of any inspection or other reports, correspondence, documentation, orders, citations, notices, directives, or suits from or by any governmental authority or insurer regarding noncompliance with or potential or actual violation of Environmental Laws.If Landlord reasonably believes Tenant may be in violation of any Environmental Law, Landlord may perform inspections and testing in the Premises for the presence or existence of Hazardous Materials.Landlord may also conduct such testing and inspections anywhere on the Land, in the Park or in the Building at any time, at Landlord expense unless such tests or inspections show that Tenant has violated any Environmental Law, in which case Tenant shall be responsible for the costs of such tests or inspections."
"Period.If either party shall fail to designate its broker by giving notice of the name of such broker to the other party within fifteen (15) days after receiving notice of the name of the other partys broker, then the broker chosen by the other party shall determine the fair market rent and his determination shall be final and conclusive.If the brokers designated by Landlord and Tenant shall disagree as to the fair market rent, but if the difference between their estimates of fair market rent shall be five percent (5%) or less of the greater of the estimates, then the average of their estimates shall be the fair market rent for purposes hereof.Ifthe brokers designated by Landlord and Tenant shall disagree as to the amount of fair market rent, and if their estimates of fair market rent shall vary by more than five percent (5%) of the greater of said estimates, then they shall jointly select a third broker meeting the qualifications set forth above, and his estimate of fair market rent shall be the fair market rent for purposes hereof if it is not greater than the greater of the other two estimates and not less than the lesser of the other two estimates.If said third brokers estimate is greater than the greater of the other two estimates, then the greater of the other two estimates shall be the fair market rent for purposes hereof; and if the estimate of the third broker shall be less than the lesser of the other two estimates, then the lesser of the other two estimates shall be the fair market rent for purposes hereof.Each of Landlord and Tenant shall pay for the services of its broker, and if a third broker shall be chosen, then each of Landlord and Tenant shall pay for onehalf of the services of the third broker."
"IN WITNESS WHEREOF, and in consideration of the mutual entry into this Lease and for other good and valuable consideration, and intending to be legally bound, each party hereto has caused this Lease Agreement to be duly executed as a Massachusetts instrument under seal as of the day and year first above written."
"On this _____ day of ___________, 2017, before me, the undersigned notary public, personally appeared XXXXXXX, proved to me through satisfactory evidence of identification, which was  photographic identification with signature issued by a federal or state government agency,  oath or affirmation of a credible witness,  personal knowledge of the undersigned, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it voluntarily for its stated purpose as President of XXXXXXXX."
"6.Movement in or out of the Building of furniture or office equipment, or dispatch or receipt by tenants of any bulky material, merchandise or materials which require use of elevators or stairways, or movement through the Building entrances or lobby shall be conducted under Landlords supervision at such times and in such a manner as Landlord may reasonably require.Each tenant assumes all risks of and shall be liable for all damage to articles moved and injury to persons or public engaged or not engaged in such movement, including equipment, property and personnel of Landlord if damaged or injured as a result of acts in connection with carrying out this service for such tenant."
"17.Landlord may from timetotime, upon delivery of written notice to Tenant, change the rules for the operation of the premises.Landlord agrees to use reasonable efforts to ensure any such rules and regulations are uniformly enforced, but Landlord shall not be liable to Tenant for violation of any such rules or regulations by any other Tenant or Occupant of the property or persons conducting business with such Tenant or Occupant."
"IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT IS DEEMED TO BE AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR PERIOD(S) OF ONE YEAR EACH FROM THE CURRENT EXPIRY DATE HEREOF, OR ANY FUTURE EXPIRATION DATE, UNLESS AT LEAST THIRTY (30) DAYS PRIOR TO ANY EXPIRATION DATE, WE NOTIFY YOU BY REGISTERED MAIL OR OVERNIGHT COURIER AT THE ABOVE LISTED ADDRESS THAT WE ELECT NOT TO CONSIDER THIS LETTER OF CREDIT EXTENDED FOR ANY SUCH ADDITIONAL PERIOD."
"SHOULD YOU WISH TO EFFECT A TRANSFER UNDER THIS CREDIT, SUCH TRANSFER WILL BE SUBJECT TO THE RETURN TO US OF THE ORIGINAL CREDIT INSTRUMENT, ACCOMPANIED BY OUR FORM OF TRANSFER, PROPERLY COMPLETED AND SIGNED BY AN AUTHORIZED SIGNATORY OF YOUR FIRM, BEARING YOUR BANKERS STAMP AND SIGNATURE AUTHENTICATION. ALL TRANSFER CHARGES WILL BE FOR THE ACCOUNT OF APPLICANT. SUCH TRANSFER FORM IS ATTACHED HERETO."
"(b) Equity Incentive Compensation. Executive shall be eligible to receive annual equity awards based on the Companys and Executives actual performance, as determined by the Board or the Compensation Committee. Each such equity award granted to Executive hereunder shall be subject to the terms and conditions of the incentive plan pursuant to which it is granted and such other terms and conditions as are established by the Board or Compensation Committee and set forth in an award agreement evidencing the grant of such equity award."
"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 Rule 3b-7 of the Securities Exchange Act of 1934, as amended (the Exchange Act)) of a company with a class of securities registered under Section 12(b) of the Exchange Act; (ii) the assignment to Executive of any duties materially inconsistent with the duties and responsibilities of Chief Executive Officer, (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."
"(e) Non-Solicitation of Employees. Executive recognizes that Executive will possess confidential information about other employees of the Employer relating to their education, experience, skills, abilities, compensation and benefits, and inter-personal relationships with customers of the Employer. Executive recognizes that the information Executive possesses and will possess about these other employees is not generally known, is of substantial value to the Employer in developing its business and in securing and retaining customers, and has been and will be acquired by Executive because of Executives business position with the Employer. Executive agrees that, during the Restricted Period, Executive will not, (x) directly or indirectly, individually or on behalf of any other person or entity solicit or recruit any employee of the Employer to leave such employment for the purpose of being employed by, or rendering services to, Executive or any person or entity unaffiliated with the Employer, or (y) convey any such confidential information or trade secrets about other employees of the Employer to any person or entity other than in the course of Executives assigned duties hereunder and for the benefit of the Employer. Notwithstanding the foregoing, the Company agrees that hiring any employee of the Employer who responds to a general advertisement for employment that was not specifically directed at the employees of the Employer shall not be deemed a violation of this Section 8(e)."
"(i) Executive acknowledges and agrees that all trade secrets, mask works, concepts, drawings, materials, documentation, procedures, diagrams, specifications, models, processes, formulae, source and object codes, data, programs, know-how, designs, techniques, ideas, methods, inventions, discoveries, improvements, work products, developments or other works of authorship (Inventions), whether patentable or unpatentable, (x) that relate to Executives work with the Employer, made, developed or conceived by Executive, solely or jointly with others or with the use of any of the Employers equipment, supplies, facilities or trade secrets or (y) suggested by any work that Executive performs in connection with the Employer, either while performing Executives duties with the Employer or on Executives own time, but only insofar as the Inventions are related to Executives work as an employee of the Employer (collectively, Company Inventions), will belong exclusively to the Company (or its designee), whether or not patent applications are filed thereon. Executive will keep full and complete written records (the Records), in the manner prescribed by the Employer, of all 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."
"(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)."
"(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 Section 409A 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 Section 409A (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 Section 409A. 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 Section 409A. Executive shall have no right to designate the date or any payment under this Agreement."
"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 Section 1 above, with an attorney. Executive also understands and agrees that he is under no obligation to consent to the General Release set forth in Section 1 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 Section 1. Executive represents that he has read this Agreement,"
"3. Effective Date; Revocation. Executive acknowledges and represents that he has been given [twenty-one (21)][forty-five (45)] days during which to review and consider the provisions of this Agreement and, specifically, the General Release set forth in Section 1 above. Executive further acknowledges and represents that he has been advised by the Company that he has the right to revoke this Agreement for a period of seven (7) days after signing it. Executive acknowledges and agrees that, if he wishes to revoke this Agreement, he must do so in a writing, signed by him and received by the Company no later than 5:00 p.m. Eastern Time on the seventh (7th) day of the revocation period. If no such revocation occurs, the General Release and this Agreement shall become effective on the eighth (8th) day following his execution of this Agreement and shall be final and binding on Executive."
"3.2 Late Payment. If any portion of Fixed Rent, Additional Rent or any other sum payable to Landlord hereunder shall be due and unpaid for more than five (5)days, it shall bear interest at a rate equal to ten percent (10%) per annum (the Default Rate) from the due date until the date of payment thereof by Tenant. In addition Tenant shall pay a late charge equal to five (5%) of the late payment if Tenant fails to pay an amount beyond applicable notice and cure periods. If any payment tendered by Tenant shall fail collection on presentment, Tenant shall reimburse Landlord for all charges imposed by Landlords bank on account thereof and pay to Landlord a bad check fee equal to $100.00. In no event shall Landlord be deemed to contract for or receive charges by way of interest or otherwise in excess of those permitted by law and any sum paid in excess of that permitted shall be refunded or credited to Tenant."
"5.1 Upon its execution of this Lease, Tenant shall deposit the sum of $150,000.00 in cash with the Landlord (the Security Deposit) which Security Deposit shall secure the faithful performance and observance by Tenant of the terms, covenants, conditions, agreements and provisions of this Lease. If Tenant is in an Event of Default, Landlord may use, apply or retain the whole or any part of the Security Deposit to the extent required for the payment of any Fixed Rent, Additional Rent or any other sum as to which Tenant is in default (beyond any applicable notice and cure period) or for any sum which Landlord may expend or may be required to expend by reason of Tenants default (beyond any applicable notice and cure period) in respect of any of the terms, covenants, conditions, agreements and provisions of this Lease, including, but not limited to, any damages or deficiency in the reletting of the Premises, whether such damages or deficiency accrued before or after summary proceedings or other re-entry by Landlord. In the event the Security Deposit is applied by Landlord, Tenant shall promptly restore the Security Deposit to its original amount. The Security Deposit (less any deductions permitted hereunder) shall be returned to Tenant, without interest, within a reasonable period (not to exceed thirty (30)days) after the expiration of this Lease and after delivery of entire possession of the Premises to Landlord. In the event of a sale of the land and the building of which the Premises form a part, Landlord shall either (i)transfer the Security Deposit to Tenant and Landlord shall thereupon be released by Tenant from all liability for the return of such Security Deposit or (ii)transfer the Security Deposit to the new Landlord in which case Tenant agrees to look to the new Landlord solely for the return of said Security Deposit. Tenant further covenants that it will not assign or encumber or attempt to assign or encumber the monies deposited herein as the Security Deposit and that neither Landlord nor its successors or assigns shall be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance. In the"
"event of any bankruptcy or other insolvency proceeding against Tenant, it is agreed that the Security Deposit held hereunder shall be deemed to be applied by Landlord to Rent and other charges due to Landlord for the last month of the Lease Term and each preceding month until such Security Deposit is fully applied."
"expense. During the Lease Term, Landlord shall have the option to retain a consultant who will conduct an investigation to verify that no portion of the Building (including the Premises, to the extent Landlord has reasonable cause to believe that there is such a use) is being used for any activities involving, directly or indirectly, the unlawful use, storage, maintenance, handling, generation, manufacture, disposal, discharge or release of any Hazardous Material. Subject to terms and conditions of this Lease regarding Landlords access, Tenant hereby grants to Landlord, its agents, employees, consultants and contractors the right to enter upon the Premises (subject to Section17.4 hereof) and to perform such tests on the Premises as are reasonably necessary to conduct any such investigation. To the extent Tenant discovers any Hazardous Materials at the Premises, which was not introduced to or released in the Premises by Tenant by any action or inaction, or its agents, employees or contractors, and the presence of which violates any applicable laws, regulations or other requirements now or hereafter in effect, then Landlord shall, at its sole cost, comply with all such laws, regulations or other requirements with respect to the remediation of the same. Landlord shall be fully responsible for the removal of any Hazardous Materials discovered during the Lease Term (as same may be extended) that were not caused by Tenant in and upon the Land, Building and Premises and Landlord covenants and agrees to exonerate, indemnify, defend, protect and save Tenant, and the directors, officers, shareholders, agents, employees and contractors of Tenant, harmless from and against any and all claims, demands, expenses, losses, suits and damages as suffered directly or from a third-party claim arising out of or related to such Hazardous Materials. Landlord represents and warrants that it has no knowledge of any Hazardous Materials in violation of applicable Legal Requirements existing in the Premises as of the date of this Lease, and Landlord shall remediate any Hazardous Materials encountered in the Premises during the course of the performance of Landlords Work."
"10.1 Alterations by Tenant. Tenant shall not make any alterations, additions, improvements or other changes in or to the Premises (the Alterations) without Landlords prior written consent, other than the installation of typical office decorations, furniture, furnishings, cosmetic or other minor works (i.e. painting, carpeting, minor repair and restorations) (such consent not to be unreasonably withheld, conditioned or delayed), provided, however, that if the proposed Alterations will adversely affect the exterior or structural components of the Building, or the Building systems (including, but not limited to, the electric, HVAC, plumbing, telecommunication and security systems), Tenant must obtain Landlords written consent and Landlord may withhold its consent to such Alterations in Landlords sole discretion. If Landlord does not respond within ten (10)days after receipt of any written request by Tenant for approval of any such Alterations, Landlord shall be deemed to have approved any such Alteration specified in Tenants written request for Landlords approval. Without limitation, it shall not be unreasonable for Landlord to withhold its consent to any Alterations which would impose on Landlord"
"any special maintenance, repair or replacement obligations not within the scope of those expressly provided for herein, unless Tenant agrees, at the time of its request for approval or notice of such Alterations, to pay all costs associated with Landlords meeting the additional obligations. All Alterations shall be subject to the provisions of Sections 10.2, 10.3 and 10.4 below."
"(d) Tenant agrees that Landlord shall have the right to examine and inspect any Alteration; provided, however, that no such examination or inspection shall constitute an approval or warranty or give rise to any liability of Landlord with respect to any thereof. In the performance of Alterations in accordance with this Lease, Tenant shall cause its contractors to use reasonable and diligent efforts not to materially interfere with ongoing operations in the Building, to keep all construction areas"
"(f) Landlord shall notify Tenant in writing at the time of Landlords approval of any Alterations, whether or not the proposed Alterations will be required to be removed by Tenant at the end of the Lease Term (it being agreed that Landlord shall have no right to require Tenant to remove Alterations of the type typical of office use in the area where the Premises are located). Tenant shall be obligated to remove any Alterations that Landlord has not designated in writing will be permitted to remain in the Premises in accordance with Section26\."
"11.1 Landlord will supply: (a)hot, cold water, and sewer services to the Premises and the Building; (b)elevator service to the Premises and the Building, (c)janitorial and cleaning services on a nightly basis during Business Days and which services shall otherwise be in amounts consistent with similar buildings in the community (Comparable Buildings), and (d)a security desk staffed on a 24/7/365 basis."
"11.4 If Tenant requires installation of a separate or supplementary heating, cooling, ventilating and/or air conditioning system, Tenant shall pay all costs in connection with the furnishing, installation and operation thereof. If Tenant requires janitorial and cleaning services beyond those provided by Landlord herein, Tenant shall arrange for such additional services through Landlord, and Tenant shall pay Landlord within thirty (30)days after receipt of billing therefor."
"14. EMINENT DOMAIN. If the whole or a material portion of the Premises (or use or occupancy of the Premises) shall be taken or condemned by a governmental or quasi-governmental authority for any public or quasi-public use or purpose (including sale under threat of such a taking), or if the owner elects to convey title to the condemnor by a deed in lieu of condemnation, or if all or any portion of the Land or "
"15.2 If an Event of Casualty occurs, provided this Lease is not terminated pursuant to the terms of Section15.1, and sufficient casualty insurance proceeds are available for application to such repair and restoration (provided Landlord maintained all insurance required hereunder), Landlord shall proceed diligently to repair and restore the Premises and Building to substantially the same condition prior to the Event of Casualty. Notwithstanding the foregoing, Landlord shall not be obligated to repair or restore: (i)any Alterations made by Tenant after the Lease Commencement Date; or (ii)any Personal Property (as hereinafter defined) which Tenant may have installed (whether or not Tenant is required to remove or leave the same on the Premises as of the expiration or earlier termination of this Lease) unless Tenant, in a manner satisfactory to Landlord, assures payment in full of all costs as may be incurred by Landlord in connection therewith."
"16.2 Insurance During Construction. In addition, during the performance of any construction by Tenant on the Premises, in addition to the above coverage required to be maintained by Tenant, Tenant shall cause the general contractor performing the work to carry: (a)commercial general liability insurance in an amount not less than $1,000,000.00 combined single limit bodily injury and property damage per occurrence and $2,000,000.00 annual aggregate limit per location (or such higher limits as may be determined by Landlord from time to time); and (b)the statutory limits of workers compensation insurance during the course of the construction with a limit of not less than the total replacement cost of the completed improvements under construction. Such contractor insurance policies shall name Landlord Parties as additional insureds on a primary non-contributing basis."
"18.2 Landlords Default. It shall be a default and breach of this Lease by Landlord if Landlord shall fail to perform or observe any material term, condition, covenant or obligation required to be performed or observed by it under this Lease for a period of thirty (30)days after notice thereof from Tenant specifying in detail Landlords non-compliance (Landlord Event of Default); provided, however, that if the material term, condition, covenant or obligation to be performed by Landlord is of such nature that the same cannot reasonably be performed within such thirty-day period, such default shall be deemed to have been cured if Landlord commences such performance within said thirty (30)day period and thereafter diligently undertakes to complete the same. If: (a)any Landlord Event of Default is not cured within the applicable cure period, Tenants exclusive remedy shall be an action for specific performance; and (b)if the default is a failure of Landlord to perform a repair obligation which is in Landlords control and the failure to perform such repair obligation has rendered the Premises untenable, Tenant shall have the right, but not the obligation, to perform such repair so as to make the Premises tenable and Landlord shall reimburse Tenant for the reasonable costs incurred in making such repair within thirty (30)days after Landlords receipt of Tenants invoice thereof, which shall include reasonable documentation of all costs incurred. Notwithstanding the foregoing, Tenant hereby waives the benefit of laws granting it: (i)the right to perform Landlords obligations except as expressly provided in the immediately preceding sentence; or (ii)the right to terminate this Lease or withhold Rent on account of any Landlord Event of Default."
"(b) Reletting. With or without terminating this Lease, as Landlord may elect, Landlord may re-enter and repossess the Premises, or any part thereof, and lease them to any other person upon such terms as Landlord shall deem reasonable for a term within or beyond the term of this Lease; provided, that any such reletting prior to termination shall be for the account of Tenant, and Tenant shall remain liable for (i)all Fixed Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of such expiration, termination or repossession, less (ii)the net proceeds, if any, of any reletting effected for the account of Tenant after deducting from such proceeds all of"
"19.4 Expenses. If either Landlord or Tenant shall commence any action or other proceeding against the other arising out of, or relating to, this Lease or the Premises, the prevailing party shall be entitled to recover from the losing party, in addition to any other relief, its actual attorneys fees irrespective of whether or not the action or other proceeding is prosecuted to judgment and irrespective of any court schedule of reasonable attorneys fees. In addition, (i)Tenant shall reimburse Landlord, within thirty (30)days of demand, for all reasonable attorneys fees incurred in collecting Rent, resolving any Event of Default by Tenant or otherwise successfully enforcing against Tenant, its sublessees and assigns, the Tenants obligations under this Lease, and (ii)Landlord shall reimburse Tenant, within thirty (30)days of demand, for all reasonable attorneys fees incurred in resolving any Landlord Default or otherwise successfully enforcing against Landlord the Landlords obligations under this Lease."
"23. FINANCIAL STATEMENTS. If Tenant: (a)is in an Event of Default; (b)seeking relief from Landlord under the Lease; or (c)if requested by Landlords mortgagee(s) or a prospective purchaser of the Building, within fifteen (15)days written notice given by or on behalf of Landlord, but not more than twice per calendar year, Tenant shall furnish Landlord with current financial statements (including, without limitation, its most recent balance sheet, year-to-date operating statement and profit and loss statement) reflecting Tenants current financial condition, provided Landlord and any other party which desires to review such financial statements executes and delivers a confidentiality agreement in form and substance reasonably acceptable to Tenant. In the event Tenant (or its parent) is a publicly-traded entity, Tenants obligation to deliver financial statements shall be limited to such statements as are publicly available or required by law to be made public. "
"24. HOLDING OVER. If Tenant retains possession of the Premises or any part thereof after the termination of this Lease or expiration of the Lease Term or otherwise in the absence of any written agreement between Landlord and Tenant concerning any such continuance of the term, Tenant shall pay Landlord an amount, calculated on a per diem basis for each day of such unlawful retention, equal to one "
"25. SURRENDER OF PREMISES. Tenant shall, upon expiration or earlier termination of this Lease, promptly surrender the Premises (including all Alterations, additions and improvements which Landlord has not designated in writing that for removal from the Premises pursuant to Section10.3(f)) in ordinary operating condition and in conformity with the applicable provisions of this Lease, excepting only reasonable wear and tear, damage by fire or other casualty, takings, and any items that Landlord is obligated to maintain, repair or replace. Upon the expiration or earlier termination of this Lease, and ninety (90)days prior to Tenant vacating the Premises, Landlord and Tenant shall jointly inspect the Premises and Tenant shall either complete any required repairs or pay to Landlord the amount reasonably estimated by Landlord as necessary to put the Premises in the condition required to be surrendered hereunder. Any work required to be done by Tenant prior to its vacating of the Premises which has not been completed upon such vacating of the Premises, shall be completed by Landlord and billed to Tenant. If Tenant is dispossessed by process of law or otherwise, Tenant shall remove its Personal Property from the Premises. If Tenant fails to remove its Personal Property, Landlord, at its option may, upon ten (10)days prior written notice to Tenant, treat such failure as a hold over, and/or may (without liability to Tenant for loss thereof), at Tenants sole cost and expense and in addition to Landlords other rights and remedies under this Lease, at law or in equity: (a)remove and store such items; and/or (b)sell such items at private or public sale for such price as Landlord at its discretion may obtain. Landlord shall apply the proceeds of any such sale to any amounts due to Landlord under this Lease from Tenant (including Landlords attorneys fees and other costs incurred in the removal, storage and/or sale of such items), with any remainder to be paid to Tenant. "
"2.2 As soon as available in each Operating Year and Tax Year falling fully or partially within the Lease Term (as same may be extended), Landlord shall provide Tenant with a written statement setting forth a good faith projection of Tenants Proportionate Share of Operating Expenses and Taxes for such year. Commencing on the first day of the first month following receipt of such statement and continuing until receipt by Tenant of Landlords statement of the next projection, Tenant shall pay to Landlord with each monthly installment of Fixed Rent an amount equal to: (a)one-twelfth (1/12th) of such projected Tenants Proportionate Share of Operating Expenses to the extent such Operating Expenses exceed the Operating Base Year; and (b)an amount equal to one-twelfth (1/12th) of such projected Tenants Proportionate Share of Taxes to the extent such Taxes exceed the Tax Base Year."
"6\. Tenant shall not place, install or operate in any part of the Premises or the Building any engine or machinery, except for Tenants normal office equipment, including computers, copiers, facsimile machines and the like. Tenant shall not keep any flammable, explosive or hazardous materials in any part of the Premises or Building without the prior written consent of Landlord."
"27\. The Landlord reserves the right to rescind any of these rules and to make such other and further rules and regulations as, in Landlords judgment, may from time to time be needed for safety, care, maintenance, operation and cleanliness of the Building and for the preservation of good order therein, which, when so made and notice thereof shall have been given to any Tenant, shall have the same force and effect as if originally made part of the foregoing Lease, and such other and further rules shall not, however, be inconsistent with the proper and rightful enjoyment by the Tenant under the Lease of the Premises."
"1\. Landlord shall perform certain improvements to the Premises (collectively, the Landlords Work) using its own contractors in accordance with those plans and specifications prepared by Landlords architect and mutually agreed to between Landlord and Tenant, and generally consistent with the initial Test Fit (the Plans and Specifications) in compliance with all applicable Legal Requirements. Landlord agrees to contribute an amount equal to $50.00 per rentable square foot of the Premises ($389,550.00) (Landlords Work Allowance) towards the Landlords Work, subject to the guaranteed maximum price set forth below. Landlord hereby approves the initial Test Fit attached hereto as Exhibit F-2 (the Test Fit). In addition, Landlord shall also provide Tenant with up to $.10 per rentable square foot of the Premises ($779.91) for the initial Test Fit prepared by Tenants architect. Tenant shall reimburse Landlord for all costs in excess of Landlords Work Allowance (the Excess) on a monthly basis in proportion to the amount the Excess represents to the total costs of Landlords Work, subject to the guaranteed maximum price. Notwithstanding the foregoing, Tenant may elect to reimburse Landlord for the Excess through the payment of additional Fixed Rent which shall be amortized by Landlord at the rate of eight percent (8%) over the Lease Term."
"If Tenant requests changes to the Landlords Work, Landlord shall promptly quote any net additive cost of such proposed change order and the delay, if any, in the Estimated Commencement Date. Tenant shall either approve or reject such change order within five (5)days. If Tenant either rejects or does not respond to Landlords change order proposal within the foregoing period, the change order shall be deemed withdrawn. If Tenant approves, Tenant shall pay the cost of the change order to the extent in excess of the portion in Excess of Landlords Work Allowance and Landlord shall perform the work identified in the change order."
"3\. Tenant shall notify Landlord of its desire of to exercise the Extension Option no later than nine (9)months prior to expiration of the then current term (such notice to be known as Tenants Notice). If Tenant does not notify Landlord in accordance with the preceding sentence, it will be conclusively deemed that Tenant has not exercised the Extension Option and the Lease will expire upon expiration of the current term in accordance with the terms of the Lease. No later than thirty (30)days after receiving Tenants Notice, Landlord shall notify Tenant of the proposed Fixed Rent which shall be applicable during the Extension Term and which shall be Landlords good faith determination of 100% of the fair market rate for such Extension Term (the Landlords Rate) (such notice to be known as Landlords Notice)."
"4\. Tenant shall have ten (10)Business Days in which to accept the terms and conditions set forth in Landlords Notice by written notice to Landlord. If Tenant accepts the terms and conditions set forth in Landlords Notice, the parties shall promptly execute an amendment confirming such terms. If Tenant fails to provide written notice to Landlord within ten (10)business days of Landlords Notice of its acceptance or rejection of the terms set forth in Landlords Notice, the Extension Option shall be deemed null and void and the Lease shall expire upon expiration of the current term in accordance with the terms of the Lease."
"3\. Failure of Tenant to advise Landlord that it elects to exercise its right of first offer on the terms set forth in the Offer Notice within such ten (10)day period shall be deemed a waiver of the Right of Offer hereunder and Landlord shall forever be free to enter into mutually agreeable lease with a third party for the Offer Premises on any terms and conditions as it deems desirable; provided, however, if Landlord desires to lease the Offer Premises on economic terms which are less than ninety-percent (90%) of the economic terms which were contained in the Offer Notice, Landlord shall again deliver an Offer Notice to Tenant offering the Offer Premises on such revised economic terms."
"1. Term. Subject to the terms and provisions of this Agreement, this Agreement shall be effective upon the closing of the OptiNose,Inc. initial public offering of its common stock, and shall continue until Executives employment with the Company is terminated by the Company or by Executive. At all times, Executives employment with the Company is at-will, which means that Executives employment with the Company may be terminated at any time by the Company with or without Cause or by Executive with or without Good Reason (as each such term is defined below)."
"(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 Financial Officer, (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."
"(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"
"(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."
"(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."
"(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."
"(h) Cooperation. Upon the receipt of notice from the Company (including outside counsel), Executive agrees that while employed by the Employer (for no additional compensation) and thereafter (for reasonable compensation for Executives time), Executive will respond and provide information with regard to matters in which Executive has knowledge as a result of Executives employment with the Employer, and will provide reasonable assistance to the Employer and its representatives in defense of any claims that may be made against the Employer, and will assist the Employer in the prosecution of any claims that may be made by the Employer, to the extent that such claims may relate to the period of Executives employment with the Employer (or any predecessor). Executive agrees to promptly inform the Company if Executive becomes aware of any lawsuits involving such claims that may be filed or threatened against the Employer. Executive also agrees to promptly inform the Company (to the extent Executive is legally permitted to do so) if Executive is asked to assist in any investigation of the Employer (or their actions), regardless of whether a lawsuit or other proceeding has then been filed against the Employer with respect to such investigation, and will not do so unless legally required."
"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."
"15. Notices. All notices and other communications required or permitted hereunder or necessary or convenient in connection herewith shall be in writing and shall be deemed to have been given when hand delivered or three (3)days after being mailed by registered or certified mail to Executive or the Company, as the case may be, at Executives address set forth below or the Companys address set forth below, or to such other names or addresses as Executive or the Company, as the case may be, shall designate by notice to each other person entitled to receive notices in the manner specified in this Section(provided that notice of change of address shall be deemed given only when received)."
"e. Except as provided in Section6(e)or Section6(f), as applicable, of the Employment Agreement or in the Indemnification Agreement, Executive acknowledges and agrees that the Company has fully satisfied any and all obligations owed to him arising out of his employment with or termination from the Company, and no further sums or benefits are owed to him by the Company or by any of the other Releasees at any time."
"As of the Effective Date, Walmart, among other things, is the owner of certain retail optical centers, as more fully described on Schedule A attached to this Agreement (each, a Center, and collectively, the Centers). Manager, among other things, is engaged in the business of providing management and other related administrative services, including the assembly and fabrication of eyeglasses, for businesses such as the Centers."
"Regulatory Uncertainty means legal, regulatory, and political developments and uncertainty, including such uncertainty arising out of (1) changing rules, regulations, and interpretations of federal and state agencies and other government entities; (2) litigation brought by public authorities and private parties associated with the vision and managed care industries; and (3) any regulatory procedures, approvals, and similar matters associated with the transactions and matters contemplated by the terms of this Agreement."
"C. Exclusivity. During the Term, Manager shall be the exclusive third party manager and operator of the Centers. Walmart may determine, in its sole discretion, to self-manage and self-operate any new vision center established after the Effective Date. In Stores that include Centers, Walmart shall not, with the exception of the Centers and the Offices, engage in or otherwise permit any person to engage in, the sale or the provision of prescription optical goods or the provision of vision care services. Manager may perform services for itself or persons other than Walmart that are similar or identical to the Services at non-Store locations."
"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."
"7. Obtain and maintain either through a commercial insurer or a program of self-insurance, general liability, professional liability insurance, employment practices liability insurance, workers compensation and, if available on commercially reasonable terms, contractual liability endorsement with respect to the obligations contained in Section X, on behalf of itself and Manager Personnel and provide Walmart with evidence of such coverage upon execution of this Agreement and thirty days prior to each anniversary of the Effective Date;"
"13. Provide a virtual inventory warehouse separate and distinct from Managers inventory for its own uses in Managers owned and contracted optical laboratories for frame inventory sold by Manager to Walmart pursuant to a supplier agreement between Manager and Walmart, for use by Manager in the fabrication of eyeglasses and sunglasses for Center customers;"
"14. Implement and manage an electronic records system for prescription and related Goods sold in the Centers on behalf of Walmart Access to the records system for the Centers must be limited to those Manager employees who need access to such information in connection with their responsibilities on behalf of Manager under this Agreement. All records and files of such transactions are the property of Walmart; provided, however, that Manager shall have reasonable access to such records and files at all times as necessary to perform the obligations of Manager under and subject to this Agreement, including Schedule H, and as required or permitted by applicable federal and state laws and regulations. At the end of the Term, Manager shall deliver all such records and files to Walmart in an electronic format reasonably acceptable to Walmart. After the Term, Walmart shall give Manager and its representatives reasonable access to, and electronic or paper copies of all such records and files;"
"D. Reports. Manager shall provide to Walmart a weekly report no later than two business days following the end of each week detailing Net Revenue for each Center for the period since the most recent such report. For purposes of preparing such reports, weeks begin on Saturdays and end on Fridays. No later than two business days following the end of each calendar month that does not end on a Friday, Manager shall provide a report detailing the Net Revenue for each Center for the period since the most recent such report. All reports under this section shall be in a form substantially similar to Schedule D. Notwithstanding the foregoing, for the months of May 2012 and June 2012. Manager shall submit one monthly report for each month, in lieu of weekly reports."
"d. The Parties further agree to reasonably cooperate to prepare and submit, in a timely manner, all enrollment and application forms for participation in, and enter into new contracts with private and public health care programs that will become effective on or after the Third Party Transition Date (New Third Party Contracts, together with Existing Third Party Contracts, Third Party Contracts). Notwithstanding anything to the contrary in the foregoing, in no event will Manager, without the prior consent of Walmart, arrange for Walmart (or its designated subsidiary entity) to enter into a New Third Party Contract that will subject Walmart (or its designated subsidiary entity) to requirements applicable to government contractors and sub-contractors, including without limitation any contract that would subject Walmart (or its designated subsidiary entity) to the jurisdiction of the U.S. Department of Labors Office of Federal Contract Compliance Programs."
"f. The Parties agree and acknowledge that, in connection with the assignments or transfers of the Existing Third Party Contracts or the acquisition of New Third Party Contracts, it may be necessary that certain of the Licenses are transferred from one Party to the other Party or that the other Party will seek to obtain a new License. In such event, the Parties agree to cooperate reasonably with each other to enable each Party to continue to comply with applicable law or contract."
"K. Unless prohibited by law, notify Manager promptly of any actions by any regulatory board, personal injury or properly damage or other loss or damage occurring to or claimed by any party with respect to the Centers and forward promptly to Manager copies of any summons, subpoena, or other like legal document served upon Walmart relating to actual or alleged potential liability of Manager, and, unless prohibited by law, cooperate with the investigation and response to any claim in a manner consistent with the established risk management programs of Manager and Walmart; and"
"Walmart to Manager specifying the nature of such failure, breach, or default or if such breach or default cannot reasonably be cured within forty-five days, fails to commence such cure or remedy within said forty-five day period or at any time thereafter fails to diligently prosecute such cure or remedy to completion and includes the following (including the expiration of any notice and cure periods):"
"b. Any member of the Board of Directors or executive officer of Manager commits an act of fraud, misappropriation, embezzlement or a felony directly against Walmart unless, following notice by Walmart to Manager of such act, Manager or one of its affiliates promptly reimburses Walmart for any direct or monetary out of pocket loss resulting from such act;"
"d. Manager shall file a voluntary petition in bankruptcy, or shall be adjudicated as bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any present or future statute or law relating to bankruptcy, insolvency, or other relief for debtors, whether federal or state, or shall seek, consent to, or acquiesce in the appointment of any trustee, receiver, conservator, or liquidator of Manager, or of all or any substantial part of its properties (the term acquiesce as used in this Agreement, being deemed to include but not to be limited to the failure to file a petition or motion to vacate or discharge any order, judgment, or decree providing for such appointment within the time specified by law); or a court of competent jurisdiction shall enter an order, judgment, or decree approving a petition filed against Manager seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any present or future statute or law relating to bankruptcy, insolvency, or other relief for debtors, whether federal or state, and Manager shall consent to or acquiesce in the entry of such order, judgment, or decree, or the same shall remain unvacated and unstayed for an aggregate of sixty days from the date of entry thereof, or any trustee, receiver, conservator, or liquidator of Manager or of all or any substantial part of its properties shall be appointed and such appointment shall remain unvacated and unstayed for an aggregate of sixty days."
"C. Equipment and Display Fixtures. Upon notice given by Walmart to Manager at least ninety days before the end of the Term, Walmart may purchase, pursuant to Schedule F, or, pursuant to the lease attached as Schedule G, lease, for up to three years from the end of the Term, all of the optometric and related equipment, and optical display fixtures (the E&F) at the particular Center designated by Walmart, provided, however, that, with respect to any particular Center, Walmart shall either purchase or lease all of the E&F or shall purchase or lease none of the E&F; and, upon at least thirty days notice from Walmart of Walmarts election to discontinue use and lease of any particular E&F, to be given from time to time with respect to such E&F, Walmart shall deliver, at the expense of Manager and in accordance with Section 15 of the lease attached to this Agreement as Schedule G, such E&F to a location designated by Manager. Such option to purchase or lease the E&F will be void and of no force and effect if Walmart fails to timely exercise the option by"
"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."
"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."
"D. Waiver of Subrogation. Walmart and Manager (each a Waiving Party)each hereby waives and release all rights of recovery against the other and the others agents and employees (the Released Parties)on account of loss or damage to the property of the Waiving Party to the extent that such loss or damage is required to be insured against under any property damage insurance policies required to be carried by this Agreement. By this waiver it is the intent of the Parties that the Released Parties shall not be liable to the Waiving Party or any insurance company (by way of subrogation or otherwise) insuring the Waiving Party for any loss or damage insured against (or that could have been insured against) under any property damage insurance required by this Agreement, even though such loss or damage might be caused by the negligence of one (1) or more of the Released Parties; provided, however, that the mutual release contained herein will not apply to damage to the Waiving Partys property caused by the gross negligence or willful misconduct of any of the Released Parties. If the Waiving Party does not carry, or is not required to carry, property damage insurance pursuant to this Agreement, this release will apply to damage to the Waiving Partys property that would have been covered by a policy of all risk or special form property damage insurance if the Waiving Party had maintained such insurance."
"7. If a Receiving Party is required to disclose the Confidential Information of the Disclosing Party pursuant to court order or as otherwise compelled by subpoena or other legal process, the Receiving Party may do so but only after reasonable advance written notice to the Disclosing Party to enable it to seek legal protection or confidential treatment of such Confidential Information and only to the extent that such disclosure has been so required or requested by a court or governmental authority."
"E. Information Security. By signing this Agreement, the Parties agree to comply with the terms and conditions of the information security addendum attached to this Agreement as Schedule I (Information Security Addendum).Notwithstanding any other provision to the contrary in this Agreement or any schedule or exhibit, the terms and conditions of Schedule I will prevail with respect to any item covered by or contained in Schedule I."
"C. The Parties, their counsel and all attendees agree that the mediation and all negotiations and communications related thereto constitute settlement discussions. The Parties, their counsel, the Mediator, and all attendees shall make no statement of any type or nature, whether written or oral, to the news media or any other third party regarding the mediation, provided, however, that the Parties may report to a court whether the mediation was successful or unsuccessful, or if the disclosure is required under applicable laws. All statements by the Parties, their counsel, and the Mediator relating to the mediation, and any documents created for or during these proceedings, are inadmissible and not discoverable for any purpose, in any pending or subsequent judicial, quasi-judicial, arbitration, or any other proceeding, absent consent of all Parties, and absent such consent shall not be disclosed by the Mediator or any Party or counsel to the press or otherwise made public. The Mediator will not be subpoenaed or requested to testify by any Party or counsel in respect of the mediation without consent of all Parties. Notes and any other materials generated during the conference by the Mediator, the Parties, or otherwise in connection with the mediation shall be confidential and will not be subpoenaed by any Party. However, evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non- discoverable as a result of its use in the mediation. When a Party or counsel meets alone with the Mediator, he or she will clearly inform the Mediator what statements or documents shall remain confidential, and what may be shared with the other Party. If such information is not provided the Mediator, it shall be presumed that all such statements and documents may be shared with the opposing Party and counsel. The Mediator shall have the same immunity as judges under federal law, and the parties jointly and severally agree to hold harmless and defend the Mediator in connection with any subpoena or other claims or demands against the Mediator arising out of this mediation. There is no attorney/client relationship between the Mediator and any Party or other person in the mediation and the Mediator does not provide legal advice."
"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."
"D. Assignment. Except as provided in this Section, neither Party shall have the right, power or authority to assign this Agreement, without the prior written approval of the other Party. Notwithstanding anything to the contrary in this Agreement, each Party may assign or convey its interest in this Agreement, to its parent or subsidiary companies at any level. Without waiver of the foregoing provisions, all of the rights, benefits, duties, liabilities and obligations of the Parties will inure to the benefit of and be binding upon the Parties and their respective successors and assigns."
"F. Entire Agreement and Amendment. 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. To be effective, any modification of this Agreement must be in writing and signed by both Parties."
"H. Survival. The expiration or earlier termination of the Term shall not destroy or diminish the binding force and effect of any of the provisions of this Agreement that expressly, or by reasonable implication, come into or continue in effect on or after such expiration or termination including, without limitation, (1) either Partys obligation to pay any fees, taxes, or charges incurred or due under the terms of this Agreement with respect to the time period before termination or expiration; and (2) the rights and obligations of the Parties contained in Sections IX, X, XI, XII, and XIV to this Agreement"
"b. conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which the Representing Party is a party or by which it is bound or to which any of its assets is subject. ---|---|---|--- |"
"P. Remedies Cumulative. Unless otherwise provided in this Agreement, (1) all rights and remedies granted to each Party under this Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies otherwise available to such Party in this Agreement; and (2) termination or expiration of this Agreement will not limit either Party from pursuing any other remedies available to it, including injunctive relief, in connection with any of its rights accrued or otherwise existing up to the date of such termination or expiration."
"Manager is responsible for ensuring its employees understand Walmarts emergency procedures and codes. The safety of customers, employees and associates is a priority in any emergency situation. Fires (code red), bomb threats (code blue) and shootings (code brown) may require evacuation of the building. Additional evacuation situations may arise due to natural or fabricated disasters. All emergency evacuations will be announced on the public announcement (PA) system. 2"
"Store Location | Department | GL Account # | GL Account Name | Dr. | (cr.) | Description | NVI Account Description ---|---|---|---|---|---|---|--- Sales Reporting (Initially monthly, then weekly) | 7881 | N/A | 1303010 | Other Receivables | 136,665 | | | Calculated due to/from NVI 7881 | N/A | 1303011 | Optical Receivable- Customer | 22,487 | | Managed Care AR |"
"F. Severability. Each provision of this Asset Purchase Agreement is severable. If any term or provision Asset Purchase Agreement 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 Asset Purchase Agreement."
"This EQUIPMENT LEASE AGREEMENT, including all Exhibits hereto (Lease), is made and entered into as of the Effective Date listed below by and between NATIONAL VISION, INC., a Georgia corporation (Lessor) and WAL-MART STORES, INC., a Delaware corporation (Lessee), in consideration of the mutual covenants and agreements set forth in this Lease."
"Pursuant to Section IX.C of the M & S Agreement, Lessor granted Lessee the option to lease from Lessor, on the terms and conditions set forth in this Lease, certain optometric and other equipment and fixtures located at the particular Center or Centers designated by Lessor after the termination of the M & S Agreement. ---|--- C. |"
"5. DELINQUENCY CHARGES: For each Rental Payment or other sum due hereunder which is not paid when due, Lessee agrees to pay Lessor a delinquency charge calculated thereon at the higher of: i) the rate of 1% per month for the period of delinquency or, ii) at Lessors option, 5% of such Rental Payment or other sum due hereunder, provided that such a delinquency charge is not prohibited by law."
"9. NO OTHER REPRESENTATIONS OR WARRANTIES BY LESSOR; FF&E MAINTENANCE; COMPLIANCE WITH LAWS: Lessee acknowledges and agrees that: Lessor makes no representations or warranties as to the character of this transaction for tax or other purposes; Lessor is not the manufacturer of the FF&E or the manufacturers agent; EXCEPT AS SET FORTH IN THIS LEASE, LESSEE LEASES THE FF&E AS IS AND WITH ALL FAULTS AND LESSOR HAS NOT MADE, AND DOES NOT MAKE, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE VALUE, CONDITION, QUALITY, MATERIAL, WORKMANSHIP, DESIGN, CAPACITY, MERCHANTABILITY DURABILITY, FITNESS OR SUITABILITY OF THE FF&E FOR ANY USE OR PURPOSE, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED EXCEPT AS SET FORTH HEREIN; and Lessee has fully inspected the FF&E and the FF&E is in good condition and to Lessees complete satisfaction. Lessee will not assert any claim whatsoever, regardless of cause, against Lessor for loss of anticipatory profits or for consequential damages or for incidental damages arising out of the operation or condition of the FF&E unless solely the result of Lessors gross negligence or willful misconduct. With regard to the specific FF&E leased by Lessee under this Lease, Lessee will not bring any suit or claim against or make any settlement with the manufacturer or seller to Lessor of the FF&E without Lessors prior written consent. The selection, servicing and maintenance of the FF&E will be entirely at Lessees risk and expense. Lessee agrees, at its own cost and expense: (a) to cause the FF&E to be operated with care and only by qualified personnel in the regular course of Lessees or Lessees assigns business; (b) to comply with all applicable laws, rules and regulations relating to the FF&E, including without limitation, all laws applicable to the operation of a retail vision center in Lessees store; (c) to use and operate the FF&E only in accordance with its normal intended purposes, as specified in the instructions and specifications of the manufacturer of such FF&E (provided Lessor provides such information to Lessee); (d) to comply with all of the terms of any insurance policy covering the FF&E; (e) to obtain any certificates of use required by law with respect to the FF&E (provided Lessor shall reasonably cooperate with Lessees efforts to obtain such certificates); and (f) to maintain the FF&E in good operating condition, repair and appearance, reasonable wear and tear resulting from normal use thereof, subject to the terms of this Lease."
"14. NET LEASE; TAXES: Lessee intends the rental payments hereunder to be net to Lessor. On or after the Effective Date, Lessee agrees to pay promptly to the appropriate governmental agency or, upon Lessors request, to Lessor all taxes, levies, duties, assessments and other governmental charges (including any penalties and interest, and any fees for titling or registration) levied or assessed against Lessee, Lessor or the FF&E, upon or with respect to this Lease or the purchase, use, operation, leasing, ownership, value, return or other disposition of the FF&E, or the rent, earnings or receipts arising therefrom, exclusive, however, of any taxes based on Lessors net income. Lessee further agrees to keep or cause to be kept and made available to Lessor any and all necessary records relevant to the use of the FF&E and pertaining to the aforesaid taxes, assessments and other governmental charges. For a period of six (6) years, the obligations arising under this paragraph will survive payment of all other obligations under this Lease and the termination of this Lease."
"18. PERFORMANCE OF OBLIGATIONS OF LESSEE BY LESSOR: If Lessee fails to perform duly and promptly any of its obligations under this Lease, Lessor may perform the same, but shall not be obligated to do so, for the account of Lessee to protect the interest of Lessor or Lessee or both, at Lessors option. Any amount paid or expense (including reasonable attorneys fees), penalty or other liability incurred by Lessor in such performance will be payable by Lessee upon demand as additional rent for the FF&E."
"19. DEFAULT AND REMEDIES: An event of default will occur if any of the following occurs (each, an Event of Default): (a) any Rental Payment or any other amount owed by Lessee to Lessor is not paid promptly when due; (b) Lessee breaches any of its representations, warranties, covenants or agreements herein, or in any other instrument or agreement to which Lessee and Lessor, or any of their respective subsidiaries, are parties; (c) a petition in bankruptcy or for an arrangement, reorganization, composition, liquidation, dissolution or similar relief is filed by or against Lessee under any present or future status, law or regulation; or (d) the filing of a material tax lien, or the existence of any other lien or encumbrance with respect to the FF&E. "
"21. NOTICES AND FURTHER ASSURANCES: All notices relating hereto will either be delivered in person to an officer of Lessor or Lessee, sent by commercial overnight courier or be mailed certified to Lessor or Lessee at its respective address shown on the signature page(s) hereto or such other addresses as Lessor or Lessee may provide in advance and in writing to each other, in the manner set forth herein. Lessee agrees to execute and deliver to Lessor, upon Lessors request, such documents and assurances as Lessor reasonably deems necessary or advisable for the confirmation or perfection of this Lease and Lessors rights hereunder, including such documents as Lessor may require for filing or recording."
"E. In the event that Business Associate, in connection with performing its obligations under this BAA or the Agreement, uses or maintains an Electronic Health Record of information of or about an Individual, then Business Associate shall provide an electronic copy (at the request of Covered Entity, and in the time and manner designated by Covered Entity, not to exceed 15-days) of the PHI to Covered Entity or, as directed by Covered Entity, to an Individual or a third party designated by the Individual, all in accordance with 42 U.S.C.  17935 and its implementing regulations, as of its Compliance Date."
"1. At the request of Covered Entity and in the time and manner designated by Covered Entity, not to exceed 15-days, provide access to PHI in a Designated Record Set to Covered Entity or, if directed by Covered Entity, to an Individual, in accordance with the requirements of 45 C.F.R  164.524."
"K. Without unreasonable delay and, in any event, no more than 48-hours after Discovery, Business Associate shall notify Covered Entity of any actual or reasonably suspected Breach. Business Associate shall deliver the initial notification of such Breach, in writing, which must include a reasonably detailed description of the Breach and the steps Business Associate is taking and would propose to mitigate or terminate the Breach. Furthermore, Business Associate shall supplement the initial notification, no more than 10-days following Discovery, with information including, to the extent known to Business Associate after conducting a commercially reasonable investigation (i) the identification of each individual whose PHI was or is believed to have been involved in the Breach; (ii) a reasonably detailed description of the types of PHI involved; (iii) all other information reasonably requested by Covered Entity, including all information necessary to enable Covered Entity to perform and document a risk assessment in accordance with 45 C.F.R. Part 164 subpart D; and (iv)all other information necessary for Covered Entity to provide notice to individuals, the U.S. Department of Health & Human Services (HHS), or"
"III. RESPONSIBILITIES OF COVERED ENTITY. Covered Entity shall notify Business Associate, in writing, of an Individuals request to restrict the Use or Disclosure of such Individuals PHI, any limitations in Covered Entitys Notice of Privacy Practices relevant to Business Associates performance of its obligations under this BAA or the Agreement, or any revocation by an Individual of authorization to Use or Disclose PHI."
"A. This BAA is effective as of the effective date of the Agreement (Effective Date)and terminates when Business Associate and its Subcontractors no longer have access to PHI, and when all of the PHI in Business Associates possession, inclusive of PHI in the possession of Business Associates Subcontractors, has been returned or destroyed, unless earlier terminated in accordance with Sections IV(B) through (C) of this BAA."
"C. Except as provided in the Agreement or as provided below, Business Associate shall, if feasible to do so, return or destroy all PHI, including all PHI in possession of its Subcontractors, within 30 days following the termination or expiration of this BAA. In any case that Business Associate believes return or"
"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."
"1. Upon reasonable advance notice to Manager, Walmarts Information Systems Division (ISD) Security Group may conduct a security review of Managers Information Security Program to the extent relevant to the Services performed by Manager under the Agreement or the representations made herein, when determined reasonably required by Walmart; provided, however, that such review shall be conducted in a manner that will not materially disrupt Managers day-to-day operations."
"I. Notice of Process. In the event Manager receives a governmental or other regulatory request for any Walmart Information, it agrees, subject to applicable legal requirements, to immediately notify Walmarts Legal Department so that Walmart shall have the option to defend such action. Manager shall, subject to applicable legal requirements, reasonably cooperate with Walmart in such defense."
"L. Secure Disposition. Except as permitted by the Agreement, Manager shall either return or dispose of Walmart Information if no longer needed for Walmarts business or legal purposes or upon contract termination or upon Walmarts direction which may be given at any time. Any disposal must ensure that Walmart Information is rendered permanently unreadable and unrecoverable. Upon reasonable notice and if requested by Walmart, Manager shall provide Walmart a certification by an officer of compliance with this Section."
"Payer means, with respect to a Group Contract, an employer, employee organization, health and welfare fund, health maintenance organization, managed care organization, insurer, self-insured and other employer, insurance company, Medicare, Medicaid and any other public or private third-party payer or fiscal intermediary or other third-party purchaser of or payer for optical or vision benefits. "
"To take possession of, endorse in the name of Walmart for deposit only, and deposit into the Accounts any notes, checks, money orders, insurance payments, cash, and any other instruments received in payment of accounts receivable of Walmart, whether under Provider Contracts or from Covered Individuals or otherwise; and ---|---|--- |"
"This Special Power of Attorney is executed this [INSERT] day of [INSERT], 2012, and is effective as of [INSERT MONTH & DATE], 2012. The parties agree that this Special Power of Attorney is coupled with an interest and that upon termination or expiration of the M&S Agreement, this Special Power of Attorney will terminate immediately."
"(a) Benefits and Perquisites. Executive shall be entitled to participate in all employee benefit plans, practices and programs maintained by the Company, and made available to senior executives of the Company (other than any Executive Chairman) as in effect from time to time, including, without limitation, all retirement, profit sharing, savings, vacation, sick leave, medical, hospitalization, disability, dental, life or travel accident insurance benefit plans in accordance with the terms of the plans as in effect from time to time. Executives participation in such plans, practices and programs shall be at least as favorable to Executive as other senior executives of the Company (other than any Executive Chairman)."
"(e) Good Reason. Executive may terminate his employment 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, and Executive shall be entitled to the benefits provided in Section 7(c) hereof. 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 shall mean the occurrence of any of the events or conditions described in Subsections (i) through (iv) below without Executives consent that are not cured by the Company (if susceptible to cure by the Company) within thirty (30) days after the written notice thereof has been given by Executive to the Company setting forth in reasonable detail the particular events or conditions that constitute Good Reason (provided that such notice must be given to the Company within 30 days of Executive becoming aware of such condition)."
"(ii) an amount equal to the annual cash bonus that Executive would have been entitled to receive for the year in which Executives termination date occurs, based on actual achievement through the termination date as determined in accordance with the terms of the Companys bonus program and prorated for the number of days Executive worked for the Company during such year."
"(a) Executive acknowledges that in connection with the performance of his duties during the Employment Term, the Company shall make available to Executive, or Executive shall have access to, certain Confidential Information (as defined below) of the Company and its affiliates. Executive acknowledges and agrees that any and all Confidential Information learned or obtained by Executive during the course of his employment by the Company or otherwise, whether developed by Executive alone or in conjunction with others or otherwise, shall be and is the sole property of the Company and its affiliates."
"(d) For the purposes of this Agreement, Confidential Information shall mean all confidential or proprietary information concerning the Company and its affiliates, including, without limitation, information derived from reports, investigations, experiments, research, work in progress, drawing, designs, plans, proposals, codes, marketing and sales programs, client lists, client mailing lists, supplier lists, financial projections, cost summaries, pricing formulas, marketing studies relating to prospective business opportunities and all other concepts, ideas, trade secrets, materials, or information prepared or performed for or by the Company or its affiliates. For purposes of this Agreement, the Confidential Information shall not include and Executives obligations shall not extend to (i) information that is or becomes generally available to the public (other than as a result of a disclosure by Executive, directly or indirectly, that is not authorized by the Company), (ii) information obtained by Executive on a non-confidential basis, if the source of this information was not reasonably known to Executive to be bound by a duty of confidentiality and (iii) information that Executive can establish was independently developed by Executive without reference to Confidential Information."
"(d) Definitions. For purposes of this Section 10, a Client means any client or prospective client of the Company to whom Executive provided services, or for whom Executive transacted business, or whose identity became known to Executive in connection with his relationship with or employment by the Company, Solicit means any direct or indirect communication of any kind, regardless of who initiates it, that in any way invites, advises, encourages or requests any person to take or refrain from taking any action and a Competitive Enterprise means any business enterprise that engages in the Restricted Business in the Territory, Territory means anywhere in which the Company and its subsidiaries and affiliates own and/or operate radio stations as of the termination date and Restricted Business means the business of (i) owning and/or operating radio stations, (ii) providing digital marketing services or (iii) producing live events."
"11.Remedies for Breach of Obligations under Sections 9 or 10 hereof. Executive acknowledges that the Company shall suffer irreparable injury, not readily susceptible of valuation in monetary damages, if Executive breaches his obligations under Sections 9 or 10 hereof. Accordingly, Executive agrees that, in addition to any other available remedies the Company shall be entitled to obtain injunctive relief against any breach or prospective breach by Executive of his obligations under Sections 9 or 10 hereof. 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."
"(i) This Agreement shall be binding upon and shall inure to the benefit of the Company, its successors and permitted assigns. The Company may not assign or delegate any rights or obligations hereunder except to a 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, as applicable. Except for purposes of determining the occurrence of a Change in Control, the term the Company as used herein shall mean a corporation or other entity acquiring all or substantially all the assets and business of the Company, as the case may be, (including this Agreement) whether by operation of law or otherwise."
"(f) Arbitration. If any legally actionable dispute arises under this Agreement or otherwise that cannot be resolved by mutual discussion between the parties, then the Company and Executive each agree to resolve that dispute by binding arbitration before an arbitrator experienced in employment law. Such arbitration shall be conducted in accordance with the rules applicable to employment disputes of the Judicial Arbitration and Mediation Services (JAMS) and the law applicable to the claim. The parties shall have 30 calendar days after notice of such arbitration has been given to attempt to agree on the selection of an arbitrator from JAMS. In the event the parties are unable to agree in such time, JAMS shall provide a list of five (5) available arbitrators and an arbitrator shall be selected from such five member panel provided by JAMS by the parties alternately striking out one name of a potential arbitrator until only one name remains. The party entitled to strike an arbitrator first shall be selected by a toss of a coin. The parties agree that this agreement to arbitrate includes any such disputes that the Company may have against Executive, or Executive may have against the Company and/or its related entities and/or employees, arising out of or relating to this Agreement, or Executives employment or Executives termination of employment including, but not limited to, any claims of discrimination or harassment in violation of applicable law and any other aspect of Executives compensation, employment, or Executives termination. The parties further agree that arbitration"
"Consistent with Section 12(d) of the Employment Agreement dated October 16, 2017, (the Employment Agreement) between me and Townsquare Media, Inc. (together with its current and former subsidiaries and affiliated entities, and their respective current and former predecessors, successors, assigns, representatives, affiliates and agents, the Company) and in consideration for and as a condition of my receipt of certain payments and benefits set forth in the Employment Agreement, as applicable, I, for myself, my attorneys, heirs, executors, administrators, successors, and assigns, hereby release and forever discharge, and by this instrument release and forever discharge Company, and its parents, subsidiaries, and related entities, and its and their respective current and former predecessors, successors, parents, subsidiaries, assigns, representatives, agents, attorneys, contractors, shareholders, officers, directors and employees, both individually and in their official capacities (collectively, the Company Parties), from all debts, obligations, promises, covenants, agreements, contracts, endorsements, bonds, controversies, suits, actions, causes of action, judgments, damages, expenses, claims or demands, in law or in equity, which I ever had, now have, or which may arise in the future regarding any matter arising on or before the date of my execution of this Agreement, including but not limited to all claims (whether known or unknown, suspected or unsuspected) regarding my employment at or termination of employment from the Company, any contract (express or implied), any claim for equitable relief or recovery of punitive, compensatory, or other damages or monies, attorneys' fees, any tort, and all claims for alleged discrimination based upon age, race, color, sex, sexual orientation, marital status, religion, national origin, handicap, disability, or retaliation, including any claim, asserted or unasserted, to the maximum extent permitted by law, which could arise under Title VII of the Civil Rights Act; the Equal Pay Act; the Age Discrimination in Employment Act; the Older Workers Benefit Protection Act; the Americans With Disabilities Act; the Civil Rights Act, 42 U.S.C.  1981; the Employee Retirement Income Security Act; the Family and Medical Leave Act; the Civil Rights Act; the Worker Adjustment and Retraining Notification Act; the Fair Credit Reporting Act; the Immigration Reform and Control Act; the Corporate and Criminal Fraud Accountability Act, 18 U.S.C.  1514A, also known as the Sarbanes Oxley Act; all applicable Connecticut state laws; and any other federal, state or local laws, rules, regulations or ordinances, whether equal employment opportunity laws, rules, regulations or ordinances or otherwise, or, subject to applicable law, any right under any Company pension or welfare plans; provided, however, that I am not releasing any claims for indemnification, claims arising from my ownership of equity interests in the Company, claims for benefits and reimbursements in accordance with the terms of the Companys benefit plans and arrangements, or claims arising from obligations pursuant to the Employment Agreement that survive my separation from employment, or claims that may not be released as a matter of law, including any whistleblower claim to any governmental regulatory authority (collectively, the Excluded Claims)."
"I represent and agree that I have not filed any lawsuits, claims, complaints, actions, proceedings or arbitrations against any of the Company Parties, or filed or caused to be filed any charges or complaints against any Company Party, with any municipal, state or federal agency charged with the enforcement of any law. Pursuant to and as a part of my release and discharge of the Company Parties, as set forth herein, to the fullest extent permitted by law, I agree not to sue or file a charge, complaint, grievance or demand for arbitration against any Company Party, in any forum or assist or otherwise participate willingly or voluntarily in any claim, arbitration, suit, action, investigation or other proceeding of any kind which relates to any matter that involves a Company Party, and that occurred up to and including the date of my execution of this General Release, unless required to do so by court order, subpoena or other directive by a court, administrative agency, arbitration panel or legislative body."
"transactions or business of the Company and any inside information. I understand that notwithstanding anything to the contrary in this General Release or otherwise, nothing shall limit my rights under applicable law to provide truthful information to any governmental entity or to file a charge with or participate in an investigation conducted by any governmental entity. I have been notified that the immunity provisions in Section 1833 of Title 18 of the United States Code provide that an individual cannot be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that is made (x) in confidence to federal, state or local government officials, either directly or indirectly, or to an attorney, and is solely for the purpose of reporting or investigating a suspected violation of the law, (y) under seal in a complaint or other document filed in a lawsuit or other proceeding, or (z) to my attorney in connection with a lawsuit for retaliation for reporting a suspected violation of law (and the trade secret may be used in the court proceedings for such lawsuit) as long as any document containing the trade secret is filed under seal and the trade secret is not disclosed except pursuant to court order."
"8. | The Tenant acknowledges with approval that, even after transfer of the rental property, work may be performed in other properties and/or on general parts of the building and may cause disturbances resulting from noise or dirt. The Tenant acknowledges these impairments to use associated with construction work, for example resulting from noise and/or dirt, as long as these impairments do not prevent or seriously disrupt access to and provision of the rental property or use, i.e. the Tenant accepts the impairments typically associated with such a construction site. ---|--- II. Term of Lease"
"1. | The transfer and acceptance of the rental property takes place as follows: with respect to the office spaces within three months of the plan approval; with respect to the laboratory spaces within four months of the plan approval. The obligation of the Tenant to pay the agreed upon rent, for the entire rental property, starts on the first of the month following the transfer of the office spaces. ---|--- "
"3. | Ancillary charges ---|--- The ancillary charges to be borne proportionately by the Tenant include all taxes, fees and charges relating to the property and the building mandated to the Landlord by law, regulation or official order, all operating costs in accordance with the list in  21 ff. MRG as well as (regarding both content and amount) in particular the following expenses, insofar as they are not to be borne directly by the respective tenants:"
"3. | The Tenant therefore does not require the Landlord to maintain the interior of the rental property in accordance with  1096 ABGB; the interior of the rental property comprises the entire useable area of the rental property in the sense of this Lease Agreement (including power and water conduits as well as ventilation ducts in dividing walls and in the raised floor, EDP cabling, surfaces such as walls and floors, sanitary facilities, kitchen). ---|--- "
"3. | The Landlord reserves the right to construct additions and extensions of any kind, as well as relocate, completely remove or use existing installations (not however the property that is the subject matter of the contract) for other purposes. The usability of the rental property may not be restricted by this activity. ---|--- "
"2. | In case of imminent danger, the Landlord or the persons authorized by him have the right to enter the rental property even in the absence of the Tenant. If, in a case of imminent danger, the rental property is unattended and the Tenant cannot be notified within the required period of time, public authorities (police, fire department) may be involved at the expense of the Tenant. The fire department or the fire protection officer (the latter only in the presence of a fire warden who is an employee the Tenant, however) have the right to provide access using the general master key. ---|--- "
"5. | If the Tenant has been granted further-reaching rights not limited in Item XI.5, the subletting or other transfer of the rental property to third parties is permitted only with prior express written approval of the Landlord. For clarification it shall be noted that, even in the event of any subletting or other transfer of the rental property to third parties, the Tenant remains the sole contractual partner of the Landlord. ---|--- "
"1. | The Tenant does not have the right to offset any counterclaims that he may raise against the Landlord under any title whatsoever extrajudicially and/or judicially against the rent, including all taxes, fees, ancillary charges etc., unless they are legally binding or expressly acknowledged by the Landlord in writing. ---|--- "
"6. | By mutual agreement it shall be noted that the rental property is transferred to the Tenant without any service, work or other employment relationship of any kind. Upon termination of the tenancy, the Tenant shall ensure that no service, work or other employment relationships are transferred to the Landlord and entirely indemnify and hold the Landlord harmless in this respect with any and all expenditures of capital, interest, damages and costs. ---|--- XV. Security Deposit"
"5. | The nullity or inefficacy of individual provisions does not affect the validity of the other contract provisions. In the event of nullity or inefficacy of individual provisions of this Lease Agreement, the agreements that are legally valid and come closest to the purpose of the null or ineffective provision are deemed to have been reached. The same applies in the event of a gap in the contract. ---|--- "
"6. | This Lease Agreement is subject to Austrian law. For all disputes arising from or in connection with this Lease Agreement, the competence that is expressly agreed upon for the rental property is that of the court that has jurisdiction with respect to the location, and for the dispute the court that has jurisdiction with respect to the subject-matter. ---|--- "
"5. | This Addendum to the Lease Agreement thus supplements the agreement entered into by the parties on 11/26/2010, in particular with respect to the spaces on the 3rd upper floor additionally leased by the Tenant and the building cost subsidy concerning the building described in more detail above and is an integral component of the Lease Agreement of 11/26/2010. Insofar as this Addendum to the Lease Agreement of 11/26/2010 does not state an explicit modification, the (other) provisions of the Lease Agreement of 11/26/2010 remain in effect. The Lease Agreement of 11/26/2010 and this Addendum to the Lease Agreement are therefore one integrated contract. ---|--- "
"| | | | ---|---|---|---|--- PROPERTY: |  | Helmut Qualtinger Gasse 2, 1030 Vienna |  | |  | |  | |  | |  | Oct.29,2014 | 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 | 3rd ADDENDUM: |  | | 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 * * *"
3. | In this context it shall explicitly be noted that this 3rd Addendum to the Lease Agreement does not grant the Tenant the right to use specific bicycle parking spaces. The Tenant is entitled to parking spaces without a definition of specific assigned spaces; he can choose from among the currently free spaces in the bicycle room. ---|--- * * *
| | ---|---|--- 4th ADDENDUM: |  | 06/04/2014 | Space: |  | 2nd upper floor: 277.53 m2 additional | Term: |  | as before | Rent: |  | 17.75/m2 (excl. VAT) per month; payment of ancillary charges: 2.90/m2 (excl. VAT) per month | 5th ADDENDUM: |  | | Parking spaces: |  | 1 additional (on the 1st basement level) | Term: |  | as before | Rent: |  | 104.31 (excl. VAT) per parking space per month for the additional parking space; payment of ancillary charges: 2.90/m2 (excl. VAT) per month | 6th ADDENDUM: |  | | Parking spaces: |  | 1 additional (on the 1st basement level) | Term: |  | as before | Rent: |  | 104.31 (excl. VAT) per parking space per month for the additional parking space; payment of ancillary charges: 2.90/m2 (excl. VAT) per month * * *
"2. | The contracting parties have now agreed that, in addition to the premises and parking spaces already included in accordance with Attachments ./1 to ./6, the Tenant will lease from the Landlord an additional parking space on the 1st basement level of the building identified in Item1\. ---|--- * * *"
"4. | The monthly rent for the additional parking space in accordance with Item2 of this 6th Addendum to the Lease Agreement is 104.31 (excl. VAT) per parking space. Pending further assessment by the Landlord, the monthly payment of ancillary charges for the parking spaces is 2.90 (excl. VAT) per m2 useable area. ---|--- "
"| | | | ---|---|---|---|--- 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 06/04/2014 |  | ./5 |  | 4th Addendum to the Lease Agreement of 06/04/2014 |  | ./6 |  | 5th Addendum to the Lease Agreement of 06/30/2014 |  | ./7 |  | 6th Addendum to the Lease Agreement of 08/13/2014 Vienna, on Sep. 30, 2014"
"4. Incentive Compensation. Executive shall participate in short-term and long-term incentive programs, including equity compensation programs, established by the Company for its senior level executives generally, at levels determined by the Board or the Compensation Committee. Executives incentive compensation shall be subject to the terms of the applicable plans and shall be determined based on Executives individual performance and the Companys performance as determined by the Board or the Compensation Committee. Any annual incentive compensation earned by Executive shall be paid on or after January1, but not later than March15 of the fiscal year following the fiscal year for which the annual incentive compensation is earned."
"(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 President, the Chief"
"(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 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"
"(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"
"(d) If the 280G Firm determines that one or more reductions are required under this Section7, such Payments shall be reduced in the order that would provide Executive with the largest amount of after-tax proceeds (with such order, to the extent permitted by Sections 280G and 409A of the Code, designated by Executive, or otherwise determined by the 280G Firm) to the extent necessary so that no portion thereof shall be subject to the Excise Tax, and the Company shall pay such reduced amount to Executive. Executive shall at any time have the unilateral right to forfeit any equity award in whole or in part."
"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."
"(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"
"(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"
"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."
"18. Severability. The provisions of this Agreement will be deemed severable and the invalidity of unenforceability of any provision will not affect the validity or enforceability of the other provisions hereof No failure to exercise, delay in exercising, or single or partial exercise of any right, power or remedy by either party, and no course of dealing between the parties, shall constitute a waiver of, or shall preclude any other or further exercise of, any right, power or remedy."
"(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."
"(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."
"(e) Notwithstanding anything in Section6(f)hereof to the contrary, in the event that Executive is entitled to the amount set forth in Section6(f)(i)as a result of a termination of Executives employment within twelve (12) months after the date of the Change in Control, and such Change in Control does not constitute a change in ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company, within the meaning of Section409A(a)(2)(A)(v)of the Code and its corresponding regulations, and any portion of the severance benefit payable to Executive pursuant to Section6(e)(i)is deemed to constitute deferred compensation subject to the requirements of Section409A of the Code at the time of Executives termination, then such portion that constitutes deferred compensation shall reduce the amount that is paid in a lump sum as provided in Section6(f)(i)and such deferred compensation portion shall instead be paid in substantially equal installments over the installment period as described in Section6(e)(i)."
"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."
"AAA. OFAC Laws and Regulations: All Laws administered by the Office of Foreign Asset Control (OFAC) of the Department of the Treasury, codified at 31 C.F.R. Part500 (including those named on OFACs Specially Designated and Blocked Persons list) or under any statute, executive order (including the September24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action regarding persons or entities with whom U.S. persons or entities are restricted from doing business (including persons or entities who have violated the U.S. Foreign Corrupt Practices Act 15 U.S.C. 78dd-1, 78dd-2 and 78dd-3), as same may be amended from time to time."
"CCC. Permitted Encumbrances: Any and all Encumbrances (i)affecting any portion of the Premises as of the Commencement Date, (ii)current taxes and assessments not yet due and payable or being contested in good faith by appropriate proceedings, (iii)arising or created by municipal and zoning ordinances and (iv)arising after the Commencement Date that, individually or in the aggregate, do not materially detract from the value, or impair in any material manner the use, of the Property."
"JJJJ. Tier 1 Common Equity Capital to Total Risk-Weighted Assets Ratio: The financial ratio for an entity in the United States determined by the following calculation, with each component calculated in accordance with United States generally accepted accounting principles, consistently applied: (i)(x)the sum of the par value of the common stock of such entity, plus the additional paid in capital of such entity, plus the retained earnings of such entity, less (y) the sum of such entitys treasury stock, at cost, plus such entitys goodwill and other intangible assets, plus any disallowed deferred tax assets for such entity divided by (ii)the value of such entitys assets multiplied by a risk factor mandated by the applicable federal banking regulator."
"LANDLORD MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED,IN FACT OR IN LAW,IN RESPECT OF THE PREMISES OR ANY PARTTHEREOF, EITHER AS TO ITS FITNESS FOR USE, DESIGN OR CONDITION FOR ANY PARTICULAR USE OR PURPOSE OR OTHERWISE, OR AS TO THE NATURE OR QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, OR THE EXISTENCE OF ANY HAZARDOUS MATERIALS,IT BEING AGREED THAT ALL SUCH RISKS, KNOWN AND UNKNOWN, LATENT OR PATENT, ARE TO BE BORNE SOLELY BY TENANT,INCLUDING ALL RESPONSIBILITY AND LIABILITY FOR ANY ENVIRONMENTAL CONDITION OF THE PREMISES, ENVIRONMENTAL REMEDIATION AND COMPLIANCE WITH ALL ENVIRONMENTAL LAWS."
"(1) For the avoidance of doubt, on the Go Dark Termination Date, Tenant shall pay to Landlord all Rent which is due or which will be due and payable as of such Go Dark Termination Date (which, for the avoidance of doubt, shall not include any Rent payable with respect to the Premises after the Go Dark Termination Date), including all Special Assessments, Taxes, Utility Charges, or additional sums which Tenant is liable for or for which Tenant has agreed to indemnify Landlord (Additional Charges) which are either known or ascertainable at such time, or reasonably determined by Landlord based on the most current available records for Additional Charges, subject to final adjustment. When the actual amount of such Additional Charges has been finally determined, Landlord and Tenant shall promptly adjust such amount and refund or pay any difference to the other party, as the case may be."
"C. Tenant will not enter into any agreements or consent to any transaction or instruments that will create an Encumbrance on the Premises (except for any sublease or mortgage on Tenants leasehold interest in the Premises, pursuant to any approvals required and the terms and conditions herein, or any other Permitted Encumbrance)."
"Premises harmless from and against any and all liability, costs, fees, damages, expenses, penalties, fines and charges of any kind (including reasonable attorneys fees, including those incurred in the enforcement of this indemnity) that may be imposed upon Landlord or the Premises in connection with any such contest and any loss resulting therefrom, except to the extent caused by Landlords negligence or willful misconduct. Landlord and Tenant shall each promptly notify the other of any written notice of any claims or assessments for Real Estate Taxes that may be asserted by applicable taxing authorities that could result in a potential liability or expense for the other, and coordinate with the other the response to and settlement of such claims or assessments for Real Estate Taxes. Any refund due from any taxing authority in respect of any Real Estate Taxes paid by or on behalf of Tenant shall be paid over to or retained by Tenant."
"B. Third Party Management. Tenant shall have the right to manage and operate the Premises (or any portion thereof) utilizing third parties for the management and operation thereof, without obtaining Landlords prior written consent of such third party. Notwithstanding the appointment of any third- party manager, Tenant shall remain fully responsible for the Premises in accordance with the terms hereof."
"11. UPS. Tenant shall be allowed to maintain, at Tenants sole cost and expense, operate, use, repair and replace one (1) or more existing or new uninterrupted power source(s)(collectively, as applicable, the UPS) located or to be located in the Premises. Tenant will comply with the applicable Law and the Permitted Encumbrances associated with any such installation, operation, maintenance and repair of the UPS. Tenant will be responsible for the operation, maintenance, repair, replacement and insuring of the UPS and the UPS will remain part of Tenants Personal Property. Tenant will remove the UPS from the Premises in the manner and in accordance with Section14 of this Lease at Tenants sole cost and expense."
"A. Throughout the Term, Tenant, at its sole cost and expense, will keep the Premises in the same condition as on the Commencement Date (reasonable wear and tear excepted) whether or not the need for such repairs occurs as a result of Tenants use, the elements, or the age of the Buildings, the Property or Tenants Personal Property, or otherwise (but excluding Landlords negligence or willful misconduct, or any affirmative acts in connection with work performed by Landlord) and will commit or allow no waste with respect thereto and with reasonable promptness, make all necessary and appropriate repairs and replacements thereto of every kind and nature, including without limitation those necessary to ensure continuing compliance with all Laws and Insurance Requirements, whether interior and exterior, structural and nonstructural, ordinary and extraordinary, and foreseen and unforeseen. Tenants maintenance, repair and replacement obligations shall extend to and include, without limitation, all systems serving the Premises and, subject to any Encumbrances, all parking areas and landscaping on the Property. The necessity for and adequacy of repairs to each Building or other improvements forming a part of the Premises shall be measured by the standard which is appropriate for and equivalent in quality to such Buildings Comparable Buildings of similar construction and class. Tenants obligations under this Section12 shall include the maintenance, repair and replacement (a)at all times, of any and all building systems, machinery and equipment which exclusively serve the Premises, and (b)the bearing walls, floors, foundations, roofs and all structural elements of the Premises. Tenant will not take or omit to take any action the taking or omission of which would reasonably be expected to (y)create (or permit to continue) any dangerous condition or (z)create (or permit to continue) any condition which might reasonably be expected to involve any imminent loss, damage or injury to any person or property. All repairs and replacements shall be in quality and class at least equal to the original work and shall be made promptly as and when necessary. Notwithstanding anything to the contrary contained herein, Tenant shall not be required to make a replacement of any item in the event that a repair will provide adequate functionality to the item and would be customary and reasonable in Comparable"
"Buildings of similar construction and class. Repairs and replacements called for as a result of fire or other casualty and condemnation shall be made pursuant to the provisions of Sections 21 and 22, respectively. Notwithstanding the foregoing, the obligations of Tenant set forth in this Subsection12.A. shall not require Tenant to maintain the Premises in a better condition than it existed as of the Commencement Date. In connection with the foregoing, but in no way expanding Tenants obligations hereunder and subject to Subsection 12.C., Tenants obligations shall include without limitation with respect to the Premises, to the extent applicable:"
"(12) Tenant shall maintain a contract on at least an annual basis for regular servicing and maintenance (at least once annually) of the heating, ventilating, air conditioning and vertical transportation systems serving the Buildings, unless Landlord shall otherwise direct. Upon written request of Landlord, Tenant shall submit to Landlord a copy of such fully paid contract and any extensions, renewals or replacements thereof. At a minimum, each maintenance contract for any such equipment shall include a provision that such contractor shall be required to coordinate any activities performed on the roof of the Buildings by a roofing contractor, so as to not void any roof or related warranties."
"B. Except to the extent caused by Landlords gross negligence or willful misconduct, or any affirmative acts in connection with work performed by Landlord, Landlord shall not be required to furnish any services or facilities or make any repairs or alterations in or to the Premises, and Landlord shall not under any circumstances be required to (i)build or rebuild any improvements on the Premises; (ii)make any repairs, replacements, alterations, restorations or renewals of any nature to the Premises, whether ordinary or extraordinary, structural or non-structural, foreseen or unforeseen, or to make any expenditure whatsoever with respect thereto; or (iii)maintain the Premises (including any parking or common areas which are part of or adjacent thereto) in any way. Tenant hereby expressly and unconditionally waives, to the fullest extent now or hereafter permitted by Law, the right to make repairs or perform any maintenance at the expense of Landlord which right may be provided for in any Law in effect at the time of the execution and delivery of this Lease or which may hereafter be enacted. Tenant hereby assumes the full and sole responsibility for the condition, operation, repair, replacement, maintenance and management of the Premises. However, on default of Tenant beyond the expiration of any applicable notice and cure periods in making such repairs or replacements, Landlord may, but shall not be required to, upon fifteen (15) additional days notice to Tenant, make such repairs and replacements for Tenants account and the expense thereof shall be paid by Tenant to Landlord upon demand with interest at the Default Rate."
"13. COMPLIANCE WITH LAWS. Tenant shall, at its sole cost and expense, use and maintain the Premises in compliance with all Laws, and Tenant shall, at its sole cost and expense, comply with all Laws applicable to or having jurisdiction over the use, occupancy, operation, and maintenance of the Premises, including without limitation, all Environmental Laws, the ADA and other access laws and those which require the making of any structural, unforeseen or extraordinary changes and including those which involve a change of policy on the part of the governmental body enacting the same; provided, however, Tenant shall not be"
"14. SURRENDER OF PREMISES. Upon the expiration or termination of this Lease, Tenant shall surrender to Landlord the Premises, including all Alterations constructed by Tenant therein that Landlord has not requested that Tenant remove in accordance with Section15 below, with all fixtures appurtenant thereto, (but not including furnishings, trade fixtures, furniture, computers, telephone systems, machinery, equipment and other Personal Property installed or placed on the Premises by Tenant) (collectively, Tenants Personal Property) free and clear of any occupants or tenancies (including subtenancies) and, subject to Section13, in compliance with Laws (including, without limitation, Environmental Laws) and all Encumbrances and in as good condition and repair as existed as of the Commencement Date, reasonable wear and tear excepted, and any new buildings, alterations, improvements, replacements or additions constructed by Tenant and remaining at the Premises, in the same or better condition as when completed, reasonable wear and tear excepted. For the avoidance of doubt, to the extent there is a bank vault in the Premises, Tenant shall have no obligation to remove such vault on surrendering the Premises. At the end of the Term, all Alterations will belong to Landlord, unless they are Tenants Personal Property. Any of Tenants Personal Property installed or placed on the Premises by Tenant or any subtenant or assignee of Tenant, if not removed within thirty (30) days after termination or expiration of this Lease shall be deemed abandoned and become the property of Landlord without any payment or offset therefor if Landlord so elects, after five (5)business days prior written notice to Tenant. If Landlord shall not so elect, Landlord, after five (5)business days prior written notice to Tenant, may remove such property from the Premises and have it stored at Tenants risk and expense. Tenant shall repair and restore and save Landlord harmless from all damage to the Premises caused by such removal by Landlord."
"C. Prior to the commencement of construction of any Alteration requiring Landlords consent, Tenant shall deliver to Landlord certificates evidencing the existence of (a)workmens compensation insurance with coverage limits not less than statutory limits covering all persons employed for such work; (b)a completed operations endorsement to the commercial general liability insurance policy referred to Subsection 18.B.; (c)reasonable comprehensive general liability and property damage insurance naming Landlord, its designees and Tenant as additional insureds, with coverage of at least $1,000,000 single- limit or such greater amount as may be reasonably requested by Landlord; and (d)builders all risk insurance on a completed value basis (or its equivalent) covering all physical"
"D. Promptly upon the completion of construction of any Alteration that is permanently affixed to the Premises, Tenant shall deliver to Landlord one complete set of as built drawings thereof (and if the Alterations involve any change to the footprint of the applicable Building or the erection of a new building, an ALTA survey for the Property certified to Landlord and any mortgagee of the Premises), proof of payment for all labor and materials, and if and to the extent commercially obtainable, copies of guarantees, if any, from all major contractors in favor of Landlord and Tenant (jointly and separately) against defects and deficiencies in materials and workmanship, and requiring the correction of the same upon demand of Landlord and Tenant at the expense of such contractor."
C. The required limits and coverages of all insurance set forth in Subsections 18.A. and 18.B. above may be reasonably adjusted by Landlord from time to time (but not more frequently than once every five (5)years) in conformity with the then prevailing custom of insuring liability in Comparable Buildings in the municipality in which the Premises is located.
"H. All policies of insurance required to be maintained pursuant to this Lease shall be endorsed so that if at any time should they be not renewed, canceled, coverage be reduced (by any party including the insured) which affects the interests of the Landlord or its lender(s)such non-renewal cancellation or reduction shall not be effective as to Landlord and its lender(s)for thirty (30) days, except for non-payment of premium which shall be for ten (10)days after receipt by the Landlord of written notice from such insurer of such cancellation or reduction. In addition to the foregoing, all policies of insurance required to be maintained pursuant to this Lease shall contain terms in accordance with Tenants normal business practice and reasonably acceptable to Landlord and shall (i)contain a severability of interest and a cross- liability clause; (ii)name Landlord, its lender, any ground lessor of the Property and other entities as additional insureds or loss payees, as required by contract; and (iii)be endorsed to waive any rights of subrogation against Landlord, its lenders, and their respective officers, directors, employees, agents, partners, and assigns. All policies of insurance required to be maintained pursuant to this Lease (other than in respect to automobile liability or workers compensation insurance) shall insure the interests of Landlord and Tenant regardless of any breach or violation by Tenant or any other party of warranties, declarations or conditions contained in such policies, any action or inaction of Tenant or others."
"20. WAIVER OF SUBROGATION. Notwithstanding anything to the contrary set forth in this Lease, to the fullest extent permitted by Law, neither Landlord nor Tenant shall be liable (by way of subrogation or otherwise) to the other party (or to any insurance company insuring the other party) for any loss or damage to the property of the releasing party to the extent the loss or damage is covered by property insurance carried or required by this Lease to be carried by the releasing party EVEN THOUGH SUCH LOSS MIGHT HAVE BEEN OCCASIONED BY THE NEGLIGENCE OR WILLFUL ACTS OR OMISSIONS OF THE LANDLORD OR TENANT OR THEIR RESPECTIVE EMPLOYEES, AGENTS, CONTRACTORS OR INVITEES. Landlord and Tenant shall give each insurance company"
"proceeds to be applied to Rent as aforesaid). Payments shall be made against certification of the architect responsible for the supervision of the repairs and rebuilding that the work had been performed substantially in conformance with the approved plans and specifications therefor and the value of the work in place is equal to not less than one hundred ten percent (110%) of the aggregate amount advanced by Landlord for the payment of such work. Prior to commencing the repairing and rebuilding, Tenant shall deliver to Landlord for Landlords approval a schedule setting forth the estimated monthly draws for such work. Subject to the provisions of any applicable Landlord Mortgage, Landlord shall contribute to such payments, out of the insurance proceeds being held in trust by Landlord, an amount equal to the proportion that the total net amount so held by Landlord bears to the total estimated cost of repairing and rebuilding, multiplied by the payment by Tenant on account of such work. Landlord may, however, withhold ten percent (10%) from each payment until the work has been completed and unconditional lien releases and/or other proof has been furnished to Landlord that no lien or liability has attached, or will attach, to the applicable Building or the Property or to Landlord in connection with repairing, reconstructing and rebuilding."
"C. If the Premises is damaged by fire or other casualty, whether or not from a risk covered by insurance, Tenant shall give Landlord prompt written notice thereof, and within thirty (30) days after the occurrence of the casualty, Tenant shall provide Landlord with a notice detailing Tenants good faith estimate, based on consultations with and supported by reports and recommendations of qualified architects and contractors, of the length of time (the Estimated Repair Period) that it will take following commencement of construction to complete the reconstruction, restoration and repair of the Premises, using customary construction techniques and assuming normal working conditions and work schedules, to reconstruct, restore or repair the Premises in accordance with the terms of this Section21 and the Restoration Standards. If a fire or other casualty causes (i)a total destruction of the Buildings or a destruction of same such that the Premises, and the Estimated Repair Period exceeds twelve (12) months (Total Destruction), or (ii)a partial destruction of the Premises which occurs during the last twelve (12) months of the Initial Term or any exercised Renewal Term (12-Month Destruction), then in either such event, Tenant may elect not to restore the Premises and terminate this Lease by the delivery of written notice thereof to Landlord (the Termination Notice) no later than forty-five (45) days after the date of the casualty and upon such termination neither party shall have any obligation to the other under this Lease. If Tenant elects to terminate this Lease pursuant to this Subsection 21.C., an amount (Casualty Proceeds) shall be paid by Tenant to Landlord or Landlords Mortgagee, if applicable, that is equal to all insurance proceeds attributable such damage or destruction. Rent shall continue unabated until the date of termination. Tenant waives any statutory rights of termination which may arise by reason of any damage or destruction of the Premises but such waiver shall not affect any contractual rights granted to Tenant under this Section21."
"F. The provisions of this Lease, including this Section21, constitute an express agreement between Landlord and Tenant with respect to any and all damage to, or destruction of, all or any part of the Premises, and any Law with respect to any rights or obligations concerning damage or destruction in the absence of an express agreement between the parties, and any similar or successor Laws now or hereinafter in effect, shall have no application to this Lease or any damage or destruction to all or any part of the Premises."
"claim shall diminish or otherwise adversely affect Landlords award. Tenant agrees to execute any and all further documents that may be required in order to facilitate collection by Landlord of any and all awards. Tenant, in cooperation with Landlord, shall have the right to participate in any condemnation proceedings for the purpose of protecting Tenants interest hereunder."
"the cost incurred by Tenant in connection therewith and stating that Tenant has not theretofore received payment for such repair. If such proceeds are not made available to Tenant, Tenant shall have no obligation to make such repair. If the cost of repairs shall exceed the net award collected by Landlord, Tenant shall pay the deficiency. Any balance remaining in the hands of Landlord after payment of such costs of demolition, repair and restoration shall be split by Landlord and Tenant such that Tenant shall retain an amount equal to such balance multiplied by a fraction, where the numerator is the number of years remaining in the Term divided by the number of years of the Term and the Landlord shall retain the remainder of such balance, provided that if Tenant subsequently exercises a Termination Right, if applicable, the excess proceeds shall be recalculated as if the Term ended on the effective date of the termination of this Lease, and Tenant shall, on such date, pay to Landlord any resulting overpayment."
"A. Notwithstanding the existence of any insurance required to be provided hereunder (but not in duplication thereof), and without regard to the policy limits of any such insurance, and in addition to and not in limitation of any other indemnity provided in this Lease, and subject to the provisions of Subsection 23.C., Tenant shall protect, indemnify, defend and hold all Indemnified Parties harmless from and against any and all liabilities, obligations, claims, damages, penalties, causes of action, losses, costs, fees and expenses, including without limitation reasonable counsel fees and court costs, to the maximum extent permitted by Law, imposed upon, asserted against, suffered or incurred by any Indemnified Party directly or indirectly by reason of any claim, suit or judgment obtained or brought by or on behalf of any person or persons against any Indemnified Party, for damage, loss or expense due to, but not limited to, bodily injury or property damage sustained by such person or persons, which arise out of, are occasioned by, or are in any way attributable to the following events occurring during the Term: (i) Tenants use and occupancy of the Premises; (ii)the conduct of Tenants business; (iii)any activity, work or thing done or permitted by Tenant in or about the Premises, (iv)the condition of the Premises during the Term if and to the extent the obligation of Tenant under this Lease; (v)any breach or default in the performance of any obligation to be performed by Tenant beyond the expiration of any applicable notice and cure periods under the terms of this Lease or arising from any act, neglect, fault or omission of Tenant or Tenants Representatives; or (vi) any accident, injury to or death of any person or damage to any property howsoever caused in or on the Premises during the Term, except to the extent that any of"
"of the Premises (collectively, Transfer) to any third party, including, but not limited to, an Affiliate of Tenant, provided that the use of the Premises by the proposed subtenant/assignee (i)will not violate or create any potential violation of any Law; (ii)will not violate any Permitted Encumbrances, provided that Landlord shall not be permitted to place or cause or permit to be placed on the Premises any Encumbrance that would adversely affect Tenants use or occupancy of the Premises or a portion thereof or Tenants ability to effectuate a Transfer; and (iii) will be consistent with the uses, including the Alternative Uses, described in Subsection 4.A. Tenant shall give prompt written notice to Landlord of any such Transfer. In no event shall any Transfer of this Lease be subject to a profit sharing arrangement with Landlord or allow Landlord to recapture the Premises or any portion thereof."
"B. Notwithstanding the foregoing, Tenant may Transfer all of its rights and obligations under this Lease, and terminate, and relieve itself of, all liability hereunder, to any bank, financial institution, corporation, partnership, limited liability company or other legal entity that (i)acquires all or substantially all of the assets or voting stock of Tenant, (ii) is the surviving entity of a merger, share exchange or other combination with Tenant, or (iii)results from a consolidation, reorganization or recapitalization of Tenant with some other solvent corporation, partnership or other legal entity; provided that in each case the successor tenant or successor Tenant Party (if not the named Tenant herein, the Affiliate) assumes all of such Tenants obligations under this Lease; and provided further that:"
"25. LIENS. Tenant will not, directly or indirectly, create or permit to be created or to remain, and will promptly discharge, at its expense, any mechanics, suppliers or vendors lien, encumbrance or charge on the Premises or any part hereof. The existence of any mechanics, suppliers or vendors lien, or any right in respect thereof, shall not constitute a violation of this Section25 if payment is not yet due upon the contract or for the goods or services in respect of which any such lien has arisen or, if Tenant is protesting or challenging such lien in good faith and has, within thirty (30) days after Tenant receives actual notice of such lien, bonded over such"
"31. SUBORDINATION. Tenant accepts this Lease subject and subordinate to any ground lease, mortgage, or deed of trust presently existing or hereafter arising upon the Premises, or upon the Buildings or the Property and to any renewals, modifications, refinancings and extensions thereof (each, a LandlordMortgage); provided that, prior to each such subordination, Landlord shall cause the holder of any such Landlord Mortgage to execute and deliver to Tenant a non-disturbance agreement in substantially the form attached hereto as ExhibitC (such agreement, an SNDA). Notwithstanding the foregoing, Tenant agrees that any mortgagee shall have the right at any time to subordinate such mortgage, deed of trust or other lien to this Lease on such terms and subject to such conditions as such mortgagee may deem appropriate in its discretion. The provisions of the foregoing sentence shall be self-operative and no further instrument of subordination shall be required."
"(3) Landlord and Landlords Representatives shall have the right upon reasonable prior notice, and subject to Section16 and Section17, to enter the Premises and/or conduct appropriate tests and investigations for the purpose of ascertaining that Tenant complies with all applicable Environmental Laws that relate in any way to the presence of Hazardous Materials on the Premises."
"35. CONFIDENTIALITY/MEDIA RELEASES. Except as otherwise provided herein, all information communicated to Landlord or Tenant and identified in writing as confidential, shall be held by the receiving party in strict confidence, shall be used only for purposes of this Lease and any financing of the Property, and no such information shall be disclosed by the receiving party or its representatives without the express prior written consent of Tenant or Landlord, as applicable. Notwithstanding the foregoing, (i)the receiving party may disclose confidential information to its agents, officers, directors, employees, lenders, investors, potential investors, consultants, attorneys, and representatives with a need to know (all of whom will be informed about the existence of, and shall agree to abide by, this Section35), and (ii)confidential information shall not include information that (a)becomes generally available to the public without a breach of this Lease, (b)was available to the receiving party on a nonconfidential basis prior to its disclosure, (c)becomes available to the receiving party on a nonconfidential basis from a source other than Tenant or Landlord, or its representatives, as applicable, and not known to the receiving party to be bound by an obligation of confidentiality with respect to such information, or (d)is required to be disclosed by legal, accounting or regulatory requirements, including any disclosures required by the receiving partys lender in connection with any securities or other filings. All media releases and public announcements by Landlord or Landlords Representatives relating to Tenant and Tenants personal and business operations, shall be coordinated with and approved in writing by Tenant prior to the release thereof, and all media releases and public announcements by Tenant or Tenants Representatives relating to Landlord and Landlords personal and business operations, shall be coordinated with and approved in writing by Landlord prior to the release thereof. Except for any announcement intended solely for internal distribution by Landlord or Tenant or any disclosure required by legal, accounting or regulatory requirements beyond the reasonable control of the disclosing party, all media releases or public announcements (including, but not limited to, promotional or marketing material) by Landlord or Tenant or either partys employees or agents relating to this Lease or its subject matter, or including the name, trade name, trade mark, or symbol of Tenant or an Affiliate of Tenant, or Landlord or an Affiliate of Landlord, shall be coordinated with and approved in writing by the other party prior to the release thereof; provided, that nothing herein is intended to require Tenants consent to the identification of Tenant or the particulars of this Lease in connection with any marketing of the Premises by Landlord. Neither Landlord nor"
"44. PERSONAL LIABILITY. Notwithstanding anything to the contrary provided in this Lease, it is specifically understood and agreed, such agreement being a primary consideration for the execution of this Lease by Landlord, that (i)there shall be absolutely no personal liability on the part of the trustees, members, partners, shareholders, officers, directors, employees and agents of Landlord and its successors or assigns, to Tenant with respect to any of the terms, covenants and conditions of this Lease, (ii)Tenant waives all claims, demands and causes of action against the trustees, members, partners, shareholders, officers, directors, employees and agents of Landlord and its successors or assigns in the event of any breach by Landlord of any of the terms, covenants and conditions of this Lease to be performed by Landlord, and (iii)Tenant shall look solely to Landlords interest in the Premises (and any proceeds and income therefrom) for the satisfaction of each and every remedy of Tenant in the event of any breach by Landlord of any of the terms, covenants and conditions of this Lease to be performed by Landlord, or any other matter in connection with this Lease or the Premises, such exculpation of liability to be absolute and without any exception whatsoever."
"47. LEGAL INTERPRETATION. Each of Landlord and Tenant hereby agree that the State of Illinois has a substantial relationship to the parties and to the underlying transaction embodied hereby, and in all respects (including, without limiting the foregoing, matters of construction, validity and performance), this Lease and the obligations arising hereunder shall be governed by, and construed in accordance with, the laws of the State of Illinois applicable to contracts made and performed therein and all applicable law of the United States of America; except that, at all times, the provisions for the creation of the leasehold estate, enforcement of Landlords rights and remedies with respect to right of re-entry and repossession, surrender, delivery, ejectment, dispossession, eviction or other in-rem proceeding or action regarding the Premises pursuant to Section27 hereunder shall be governed by and construed in according to the Laws of the State in which the Premises is located, it being understood that, to the fullest extent permitted by law of such State, the law of the State of Illinois shall govern the validity and enforceability of this Lease, and the obligations arising hereunder. To the fullest extent permitted by law, Tenant and Landlord hereby unconditionally and irrevocably waive any claim to assert that the law of any other jurisdiction governs this Lease. Words of any gender shall be construed to include any other gender, and words in the singular number shall be construed to include the plural, unless the context otherwise requires. The headings of the sections have been inserted for convenience only and are not to be considered in any way in the construction or interpretation of this Lease. Except as otherwise herein expressly provided, the terms of this Lease shall apply to, inure to the benefit of, and be binding upon, the parties and their respective assigns, successors and legal representatives. Any legal suit, action or proceeding against Tenant arising out of or relating to this Lease shall be instituted in any federal court in the Northern District of Illinois or the federal district in which the Premises is located or state court sitting in the County of DuPage, State of Illinois or the county in which the Premises is located, and Landlord and Tenant each waives any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding in such federal district or County and State, and Landlord and Tenant each hereby expressly and irrevocably submits to the jurisdiction of any such court in any suit, action or proceeding. Landlord shall not have the right to bring any legal suit, action or proceeding against Tenant arising out of or relating to this Lease in any other jurisdiction. In this Lease, the words include, includes or including mean include without limitation, includes without limitation and including without limitation, respectively, and the words following include, includes or including shall not be considered to set forth an exhaustive list."
"B. The Renewal Term shall be upon the same terms and conditions as in this Lease except Base Rent shall be the amounts set forth on ExhibitA for the first two Renewal Terms, and for all other Renewal Terms shall be at the then Market Rate for the Premises. Market Rate for the Premises shall mean the base rent rate (including escalations) that the Premises would be expected to be leased for, for a term commencing on the applicable commencement date and ending on the applicable expiration date, in its then-existing condition, in an arms-length transaction between a willing landlord and tenant in the commercial space market existing in the vicinity of the Premises at the time such rate is established. Such determination shall include consideration of (i)the size and location of the Premises, and the quality of, condition of, and the nature of the improvements in, the Buildings, including without limitation, the necessity to remove such improvements, but shall exclude the value of improvements installed by Tenant in such Renewal Premises that are to be removed by Tenant at the expiration of the Term; (ii)other Comparable Buildings to the Buildings; (iii)other comparable leasing transactions in comparable locations in the vicinity of the Premises for new leases (with appropriate adjustments for different size premises and different length terms), and the rents and concessions, allowances and commissions granted along with the other terms of such transactions; and (iv) the financial condition of Tenant, provided, however, that in no event shall the Market Rate be less than the rate of Base Rent in effect at the expiration of the then existing Term."
"C. Within forty-five (45) days after receipt of the Renewal Notice, Landlord shall advise Tenant of Landlords determination of the Market Rate for the applicable Renewal Term. Tenant, within twenty (20) days after the date on which Landlord advises Tenant of the applicable Market Rate for the Renewal Term, shall either (i)give Landlord final binding written notice (the Binding Notice) of Tenants exercise of the Renewal Option, or (ii)if Tenant disagrees with Landlords determination, provide Landlord with written notice of rejection (the Rejection Notice). If Tenant fails to provide Landlord with either a Binding Notice or Rejection Notice within such twenty (20) day period, Tenants Renewal Option shall be null and void and of no further force and effect. If Tenant provides Landlord with a Binding Notice, Landlord and Tenant shall enter into the Renewal Amendment upon completion of the process set forth in these Subsections 48.C. and 48.D., subject to such Binding Notice upon the terms and conditions set forth herein. If Tenant provides Landlord with a Rejection Notice, Landlord and Tenant shall reasonably cooperate to agree upon the Market Rate. Upon agreement, Tenant shall provide Landlord with a Binding Notice and Landlord and Tenant shall enter into the Renewal Amendment upon completion of the process set forth in these Subsections 48.C. and 48.D., in accordance with the terms and conditions hereof. Notwithstanding the foregoing, if Landlord and Tenant are unable to agree upon the Market Rate within twenty (20) days after the date Tenant provides Landlord with the Rejection Notice, Tenant, by written notice to Landlord (the Arbitration Notice) within ten (10)days after the expiration of such twenty (20) day period, shall have the right to have the Market Rate determined in accordance with the arbitration procedures described in"
"E. If Tenant is entitled to and properly exercises its Renewal Option, upon completion of the process of determination of Market Rent set forth in Subsections 48.C. and 48.D., Landlord and Tenant shall execute an amendment (the Renewal Amendment) to reflect changes in the Base Rent, the Term, the Expiration Date and other appropriate terms; provided that an otherwise valid exercise of the Renewal Option shall be fully effective whether or not the Renewal Amendment is executed."
"50. PARTIES BOUND. The preparation and submission of a draft of this Lease by either party to the other party shall not constitute an offer, nor shall either party be bound to any terms of this Lease or the entirety of this Lease, until both parties have fully executed a final document and an original signature document has been received by both parties. Until such time as described in the previous sentence, either party is free to terminate negotiations without penalty or any further obligation to the other party."
"THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (Agreement) is made as of , 2016, by and between [INSERT NAME OF LENDER], its successors, participants, and assigns (Mortgagee), whose address is, [INSERT NAME OF LANDLORD], a , its successors, participants and assigns (Borrower), whose address is  and , a , whose address is  (Tenant)."
"2. NON-DISTURBANCE. If any action or proceeding is commenced by Mortgagee for the foreclosure of the Security Instrument or the sale of the Property, Tenant shall not be named as a party therein unless Tenant is in default under the Lease beyond all applicable notice and cure periods at the time such action or proceeding is commenced or unless joinder is required by law. As long as Tenant is not in default under any of the terms, covenants or conditions of the Lease or of this Agreement beyond any applicable cure period both at the time of the commencement of any such action or proceeding and at the time of any foreclosure sale or the exercise of any other rights or remedies of Mortgagee under the Security Instrument, (a)Mortgagee shall not disturb the Tenants possession or use of the Leased Property, and (b)the sale of the Property in any such action or proceeding and the exercise by Mortgagee of any of its other rights under the Loan Documents shall be made subject to all rights of Tenant under the Lease; and (c)Tenants occupancy of the Leased Property shall not be disturbed, terminated, diminished, or interfered with by Mortgagee (or any party acting on behalf of Mortgagee) in the exercise of its rights under the Loan Documents during the term of the Lease or any extensions or renewals thereof or by any party who acquires the Leased Property from Lender as a result of the exercise by Lender of any such rights."
"6. NOTICES. Any notice, demand, request, or other communication that any party hereto may be required or may desire to give hereunder shall be in writing and shall be deemed properly given (a)if hand delivered, when delivered; (b)if mailed by United States Certified Mail (postage prepaid, return receipt requested), three Business Days after mailing; (c)if by Federal Express or other nationally recognized overnight courier service, on the next Business Day after delivered to such courier service for delivery on the next Business Day; or (d)if by facsimile or e-mail transmission, on the day of transmission so long as a copy is sent on the same day by Federal Express or other nationally recognized overnight courier, to the addresses set"
"14. LEGAL INTERPRETATION. Each of Mortgagee, Borrower and Tenant hereby agree that the State of Illinois has a substantial relationship to the parties and to the underlying transaction embodied hereby, and in all respects (including, without limiting the foregoing, matters of construction, validity and performance), this Agreement and the obligations arising hereunder shall be governed by, and construed in accordance with, the laws of the State of Illinois applicable to contracts made and performed therein and all applicable law of the United States of America; except that, at all times, the provisions for the creation of the leasehold estate, enforcement of Mortgagees and Borrowers rights and remedies with respect to right of re-entry and repossession, surrender, delivery, ejectment, dispossession, eviction or other in-rem proceeding or action regarding the Leased Property shall be governed by and construed in according to the laws of the State in which the Premises is located, it being understood that, to the fullest extent permitted by law of such State, the law of the State of Illinois shall govern the validity and enforceability of this Agreement, and the obligations arising hereunder. To the fullest extent permitted by law, the parties hereby unconditionally and irrevocably waive any claim to assert that the law of any other jurisdiction governs this Agreement. Words of any gender shall be construed to include any other gender, and words in the singular number shall be construed to include the plural, unless the context otherwise requires. The headings of the sections have been inserted for convenience only and are not to be considered in any way in the construction or interpretation of this Agreement. Except as otherwise herein expressly provided, the terms of this Agreement shall apply to, inure to the benefit of, and be binding upon, the parties and their respective assigns, successors and legal representatives. Any legal suit, action or proceeding against Tenant arising out of or relating to this Agreement may be instituted in any federal court in the Northern District of Illinois or state court sitting in the County of DuPage, State of Illinois, and the parties each waive any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding in such federal district or County and"
"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 , as tenant. (Said lease and the referenced amendment(s)thereto are collectively referred to herein as the Lease.) Attached hereto as ExhibitA is a true, complete and accurate copy of the Lease."
"C. [Owner, as borrower or as co-borrower with one or more other co- borrower(s), has applied to  (together with its successors and assigns, Lender) for a loan (Loan), which will be secured by, among other things, a mortgage, deed of trust, trust indenture or deed to secure debt encumbering the Property (Mortgage).]"
"1.1 Lease Effective. The Lease has been duly executed and delivered by [Tenant / Owner] and, subject to the terms and conditions thereof, the Lease is in full force and effect, the obligations of [Tenant / Owner] thereunder are valid and binding, and there have been no modifications or additions to the Lease, written or oral, other than those, if any, which are referenced above in Recital B. There are no other promises, agreements, understandings or commitments between Owner and Tenant relating to the Property, and [Tenant / Owner] has not given [Owner / Tenant] any notice of termination under the Lease, except as set forth in ExhibitA."
"1.2 No Default. To the actual knowledge of [Tenant / Owner]: (a)there exists no breach, default, or event or condition which, with the giving of notice or the passage of time or both, would constitute a breach or default under the Lease either by Tenant or Owner; and (b)[Tenant / Owner] has no existing claims, defenses or offsets against rental due or to become due under the Lease."
"(g) If Landlord defaults in the closing of the sale of the Premises as set forth above, then Tenant shall be entitled either to sue for specific performance or to rescind its offer to purchase, and if Tenant shall rescind its offer to purchase, the Downpayment and any interest thereon shall be returned to Tenant promptly following request therefor. Tenant shall not have the right to bring suit against Landlord for damages or other legal or equitable relief, it being agreed that the remedies set forth in this clause (g)shall be the sole remedies of Tenant."
"C. Tenant acknowledges that it has inspected the Premises prior to the Effective Date and that it is familiar with the Premises and all of the systems and facilities located on and servicing the Premises. Tenant acknowledges and agrees that (i)Tenant shall take possession of the Premises in their as-is condition on the Commencement Date (as hereinafter defined); (ii)Tenants taking possession of the Premises shall be conclusive evidence that the Premises were in good order and satisfactory condition and repair on the Commencement Date; and (iii)there is no agreement of Landlord to alter, remodel, decorate, clean or improve the Premises (or to provide Tenant with a credit or allowance for the same)."
"(iii) If Tenant agrees to proceed with the surrender of the Contraction Space, Tenant shall (a)surrender the Contraction Space to Landlord on the Contraction Date in the condition required pursuant to this Lease, and (b)pay Landlord the reasonable cost of separating the Contraction Space from the Remaining Premises as set forth in the Separation Estimate within ten (10)days before the Contraction Date."
"Infrastructure or capital improvements or replacements with respect to the Property, the Premises or the Common Areas. Certain Project-Wide Protocols are attached hereto as Exhibit B. Tenant shall be required to comply only with (i)the Project-Wide Protocols attached hereto, (ii)any Project-Wide Protocols delivered to Tenant no later than sixty (60)days following the Effective Date, and (iii)any other Project-Wide Protocols adopted by Landlord and delivered to Tenant after the Effective Date if such Project-Wide Protocols are adopted by Landlord for the purpose of complying with any Legal Requirements. Landlord reserves the right to revise, supplement, replace and otherwise modify the Project-Wide Protocols; provided, however, that Tenant shall not be required to comply with such revisions, supplements, replacements or other modifications until Landlord delivers the same in writing to Tenant; and"
"C. 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 shall, at its sole cost and expense, be responsible for restoring the Lab Space and the Fab Space to the lateral condition compliant with the De-facilitization and Decontamination Protocols included in the Project-Wide Protocols (collectively, the De-facilitization and Decontamination Protocols), as the same Landlord may modify from time to time and provide in writing to Tenant, 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 Lab Space or Fab Space, as the case may be, by eminent domain excepted. Any references in the De-facilitization and Decontamination Protocols to Responsible Department or Equipment Owner shall be deemed to refer to Tenant for purposes of the Premises and all references therein to EHS shall mean Landlords EHS department and to Facilities shall mean Landlords Facilities organization. The De-facilitization and Decontamination Protocols are subject to such written changes as Landlord shall determine are necessary to comply with any changes in applicable Legal Requirements, including, without limitation, Environmental Laws, and Tenant shall be bound to comply with such written modifications provided by Landlord. When Tenant is prepared to begin the process of restoring the Lab Space and the Fab Space to the condition required under this subparagraph C, Tenant shall notify Landlord in writing in accordance with the procedures set forth in Section9B below and Landlord shall work with Tenant to have third party consultants perform the necessary work in accordance with Section9B. If the restoration of the Fab Space and/or the Lab Space is not completed in accordance with the De-facilitization and Decontamination Protocols when the Lease terminates, Tenants obligation to pay Rent as to the Lab Space and Fab Space which has not been properly restored shall continue pursuant to Section29 hereof until the restoration is completed. This Section shall survive termination of this Lease."
"The Landlord grants to Tenant the nonexclusive right of ingress and egress to the Premises between (a)the existing streets and highways adjoining the Project; and (b)the Premises over the existing drives and parking areas located on the Project. Tenant shall not have access to other areas of the Project unless agreed to in writing by Landlord. As long as Tenant complies with the security, confidentiality and other applicable provisions of this Lease, Tenant shall have full and unimpaired access to the Premises at all times except during emergency situations and planned shutdowns which Tenant is required to participate in as set forth in Section54A of the Lease, if precluded by Legal Requirements, or as otherwise provided in this Lease."
"mechanical, vertical transportation, sprinkler, fire and life safety, structural, security, heating, ventilation and air conditioning systems serving the Buildings and Project, including pipes, wiring, cabling, ducts and conduits forming an integral part of such systems. Tenant shall be responsible, at its sole cost and expense, to repair and maintain any supplemental air conditioning units, hot water heaters, plumbing and Infrastructure that exclusively serves only Tenants Facilities and the Premises and all of its tools, equipment and other property located in the Premises, including, but not limited to, its Facilities, equipment, tools and lifts. When Tenant believes that any of the HEPA filters in the Premises or servicing Tenants operations in the Premises (even if located outside the Premises) need to be replaced, Tenant shall so notify Landlord in writing and shall provide Landlord with all necessary information and specifications that Landlord or the third party or parties that actually perform the replacement will need to perform the work (the Other Information). Landlord shall prepare a specification for the replacement of the filter specified in the notice based on the HVAC Specifications and the Other Information which Tenant shall approve. Upon such approval, Landlord shall obtain a written bid from a third party contractor approved by Landlord to do work at the Project for the cost that such third party will charge for the proposed work. Landlord shall submit such bid to Tenant and if Tenant finds such bid acceptable, Tenant will prepare and issue its purchase order for the work to be done. If Tenant issues its purchase order, Landlord shall act as the construction manager for such work and shall submit the invoice issued by the contractor upon completion of the work described in such purchase order to Tenant who shall pay such sum as Additional Rent to Landlord. In no event shall Landlord be liable for the cost to perform the work to replace the HEPA filters or for any defective work performed by the third party contractor."
"Landlord agrees to maintain (i)temperature in the Office Space and the Common Areas to site standards for the Project, which shall be comparable to habitable temperatures maintained in office space in comparable buildings in Chandler, Arizona, and (ii)temperatures in the Lab Space and Fab Space in accordance with the specifications attached hereto as Exhibit K (collectively, the HVAC Specifications). Notwithstanding the foregoing, Landlord may be required to impose energy conservation measures during energy emergency situations that require deviations from the HVAC Specifications, and Landlord shall not be in breach of the Lease for implementing such conservation measures."
"D. Landlord shall provide the Other Services and the Utility Services (collectively, the Services) hereunder to substantially the extent, quantity and quality that such services are provided as of the Commencement Date. Landlord shall not be required to provide any Services to the extent such Services would require Landlord to violate any Legal Requirements."
"Landlord shall not be liable for any damage or injury to the person, business (or any loss of income therefrom), goods, wares, merchandise or other property of Tenant, Tenants employees, invitees, licensees, customers or any other person in or about the Premises, the Buildings or the Property, whether such damage or injury is caused by or results from: (a)fire, steam, explosion, electricity, water, gas or rain; (b)the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures or any other cause; (c)conditions arising in or about the Premises, the Buildings or the Property for which Landlord is not expressly obligated otherwise in this Lease; or (d)other tenants of the Property. Landlord shall not be liable for any such damage or injury even though the cause of or the means of repairing such damage or injury are not accessible to Tenant. The provisions of this Section18 shall not, however, exempt Landlord from liability for Landlords negligence or willful misconduct. In no event shall Landlord be liable to Tenant under this Lease for special, incidental, treble, punitive or consequential damages. NOTWITHSTANDING ANYTHING IN THIS LEASE OR ANY APPLICABLE LAW TO THE CONTRARY, THE LIABILITY OF LANDLORD HEREUNDER (INCLUDING ANY SUCCESSOR LANDLORD HEREUNDER) AND ANY RECOURSE BY TENANT AGAINST LANDLORD SHALL BE LIMITED SOLELY TO THE INTEREST OF LANDLORD IN THE PROPERTY, AND NEITHER LANDLORD, NOR ANY OF ITS CONSTITUENT MEMBERS, NOR ANY OF THEIR RESPECTIVE AFFILIATES, PARTNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SHAREHOLDERS SHALL HAVE ANY PERSONAL LIABILITY THEREFOR, AND TENANT, FOR ITSELF AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER TENANT, EXPRESSLY WAIVES AND RELEASES LANDLORD AND SUCH RELATED PERSONS AND ENTITIES FROM ANY AND ALL PERSONAL LIABILITY."
(iv) Do or cause to be done any act or thing that Tenant failed to perform after expiration of the applicable grace period. Any monies paid in connection with the performance of such act or thing shall constitute Additional Rent hereunder and shall be due and payable by Tenant immediately upon notice given by Landlord to Tenant of the nature and amount thereof.
"contractors, subcontractors, invitees, licensees or other authorized representatives, except to the extent caused by the acts or omissions of Landlord or Landlords employees, agents, contractors, subcontractors, invitees, licensees or other authorized representatives. Tenants obligation under subsection (i)of this Section to indemnify and hold the Landlord Indemnified Parties harmless shall be limited to the sum that exceeds the amount of insurance proceeds, if any, received by Landlord. The indemnification set forth in this Section21 shall survive the termination or expiration of this Lease."
"B. Tenant shall, at its expense, keep in effect during the Term of this Lease or any extension thereof, the following insurance in standard form policies, with an insurance company authorized to do business in the State in which the Premises are situated, and acceptable to Landlord, with an A.M. Best rating of at least A-, VII."
"In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any of their or its respective provisions anywhere herein contained, by reason of (i)the destruction, in whole or in part, of any Building or improvement forming a part of the entire Premises, (ii)strikes, (iii)lockouts, (iv)labor troubles, (v)war, whether declared or undeclared, (vi)riot, (vii)Act of God, (viii)embargoes, (ix)delays in transportation, (x)inability to procure materials and/or labor, (xi)failure of power, (xii)restrictive governmental laws or regulations, whether valid or not, (xiii)insurrection, (xiv)acts of terrorism or (xv)any other reason other than financial, beyond the reasonable control of such party, and not the fault of the party so delayed or hindered in or prevented from performing work or doing acts otherwise required under this Lease, then performance of such work or doing of such acts shall be excused for the period of the delay, and the period for the performance of such work or doing such acts shall be extended for a period equivalent to the period of such delay; provided, however, that the provisions of this Section shall not operate so as to excuse or release Tenant from the prompt payment of Rent or other sums required to be paid by Tenant to Landlord or to other payees anywhere hereunder."
"D. Landlord shall notify Tenant on or before December6, 2009 whether Landlord intends to enter into an amendment to this Lease or enter into a new lease, either extending the Term beyond the third anniversary of the Commencement Date; provided, however, Landlords failure to do so shall not be considered a default by Landlord, entitle Tenant to holdover in the Premises, allow Tenant to exercise any rights or remedies under this Lease, or constitute an implied promise by Landlord that Tenant shall have the right to renew or extended the Term of this Lease."
"Entirely Remove and Entire Removal mean that the concentrations remaining in place in environmental media after remediation do not exceed the concentrations established or identified under applicable Environmental Laws promulgated, published or adopted by the State of Arizona, Maricopa County, or any other regulatory authority having jurisdiction over a remediation to be performed under this Lease at the time the remediation is being performed so long as such concentrations do not adversely impact Landlords operations, including Landlords ability to transfer title to its property free of any environmental encumbrances, including, but not limited to, deed restrictions restricting the use of the Property or requiring ongoing environmental controls or monitoring."
"Facility means each and every discrete or identifiable structure, device, item, equipment, area, or enclosure, including appurtenances, the ownership or operational control of which, whichever the case may be, is held by Tenant. Facilities means each and every Facility or all of the Facilities except Tenants furniture which Tenant shall be entitled to remove from the Premises as long as it complies with Section54C of this Lease."
"If any provision of this Lease, or the application thereof to any person or circumstance, shall be held invalid or unenforceable by any court of competent jurisdiction, the remainder of this Lease or the application of such provisions to persons or circumstances, other than those as to which it is held invalid or unenforceable, shall not be affected thereby."
"Landlord shall have the following rights, exercisable without notice and without liability to Tenant for damage or injury to property, persons, or business of Tenant or any other person and without creating any right of Tenant to terminate this Lease prior to the expiration of the Term, or interfering with Tenants use of or operations in the Premises, or giving rise to any claim for setoff against, or abatement of, Rent, Additional Rent, or any other amounts owing or to become owing by Tenant hereunder:"
"(iv) To take all such reasonable measures as Landlord may deem advisable for the security of the Buildings and its occupants, including without limitation, the evacuation of the Buildings for cause, suspected cause, or for drill purposes, and subject to the provisions of Section10, the closing of the Buildings after regular working hours."
"Landlord and Tenant have both had the opportunity to have counsel examine this Lease and to propose changes to clarify any ambiguities. Accordingly, in any interpretation of this Lease, an ambiguity shall not be resolved by interpreting the Lease against the drafter. The language of this Lease shall be interpreted according to the fair meaning and not for or against either party."
"A. Tenant shall handle and dispose of any Hazardous Wastes generated at the Premises in accordance with all applicable Environmental Laws and Landlords site procedures and policies as communicated to Tenant. Tenant will maintain separate Hazardous Waste accumulation space within the Premises for its Hazardous Wastes. Tenant shall maintain a separate generator number and separate manifests related to any such Hazardous Waste. Tenant shall store its Hazardous Wastes in an area designated for such use by Landlord, as such area may be changed by Landlord from time to time. All of Tenants Hazardous Wastes shall be transported by a hazardous waste transporter previously approved by Landlord."
"G. Tenant shall coordinate with Landlord the receiving and deliveries of all Chemicals and gases to the Premises which must be performed in accordance with all applicable Environmental Laws, site procedures and policies and in such a manner that will allow Landlord to perform all tracking requirements imposed by applicable Environmental Laws for the Project."
"N. Tenant acknowledges that Landlord, its agents, consultants and any governmental agencies have the right to access the Premises for the purposes of performing inspection of areas, records and systems in the interest of ensuring compliance with all Environmental Laws, Legal Requirements, the requirements of Landlords industrial risk insurer and Landlords Project specifications."
"O. Tenant shall comply with all applicable Environmental Laws as well as Landlords site procedures and policies and Landlords specific EHS requirements. This includes, but is not limited to, tool install/de-install inspections, hot work permits, confined space entry permits, inspection, testing and participation in the sites Crisis Management Plan and the Site Emergency Plan, and compliance with the De-facilitization and Decontamination Protocols. In addition, Tenant agrees that it will comply with those requirements of Landlords industrial risk insurance that Landlord has expressly adopted and implemented for its operations."
"Landlord and Tenant agree that Tenant will not be required to participate in any planned business shutdowns of the Project as has been the custom of Landlord for its business in previous years; provided, however that Tenant shall be required to participate in such planned shutdown if Landlord needs to shut down the Project in order to comply with its obligations under this Lease with respect to repair and maintenance of the Premises and/or the Common Areas or to provide the Services specified herein as to comply with Legal Requirements or Environmental Laws. If Landlords business requires a planned shutdown at any time and Tenant is not required to participate in the shutdown, Tenant will have access to its Premises and Landlord will continue to provide the Services to the Premises that Landlord normally provides after business hours and on holidays only."
"Any new employees, contractors, licensees, invitees, suppliers and agents who enter the Premises for any purpose other than visiting the Premises for a short period of time must take (or have previously taken) Landlords contractor safety awareness programs (the Contractor Safety Awareness Programs) before entering the Premises. Landlord reserves the right to"
Equipment-Specific Procedures Gases |  | Process Gas Lines Evacuated And Purged |  | | | N/A |  | Process Gas Line Shutoff Valves Closed |  | | | |  | Process Gas Lines Capped |  | | | LiquidChemicals |  | Drain All Lines And Reservoirs |  | | | N/A |  | Purge All Lines And Reservoirs (Indicate where rinse waters or solvents are drained to) |  | | | |  | Cap And Secure. All Lines |  | | | Miscellaneous |  | Drain All Pump Oils/Lubricants |  | | | N/A |  | Drain All Coolants |  | | | |  | Wipe Clean All Accessible Surfaces To Remove Any Chemical Residues | | | | |  | Remove any chemical residues in piping (Forelines) |  | | | |  | Identify disposition of Hazardous Materials/Waste removed from equipment; Call EHS for assistance |  | | | |  | Cap MI Inlet And Exhaust Ports (Sec Environmental Department (Radio 1B) |  | 
" |  |  | Chandler Fab only: A senior person or supervisor at South Fab Staging area will determine with ERT staff a safe passage to North Parking Lot Staging area if necessary. A senior person will lead South Fab Staging area personnel to North Parking lot Staging area. If a safe passage cannot be determined, South Fab Staging area personnel will remain at the location ---|---|---|--- "
"5.9.1 | IPA Hazards ---|--- IPA is a class 1B flammable material. It is a fire hazard when exposed to heat, flame, ignition source or oxidizer. It is reactive with acids. Vapors are heavier than air and may travel a considerable distance to an ignition source and flash back. Vapor mixtures are explosive."
" |  |  | After ensuring that no personnel are exposed, and as a check on having disconnected the energy sources, operate the push button or other normal operating controls to make certain the equipment will not operate. CAUTION: return operating control(s) to the neutral or off position after testing. ---|---|---|--- "
" |  |  | Ensure that each hoist is visually inspected using the required criteria prior to use to ensure the hoist is in good operating condition. Any noted deficiencies shall be assessed, and if needed, repaired prior to operation. Contact the site EHS department for guidance. ---|---|---|--- "
|  | Removed WWCM references and updated document numbers to new method. Made several grammatical changes and removed duplicate sentences. Changed document number and reference documents from 68As to 12Ms. Added iCAP classification. Changes made by T. Steeves. |  | J. Lund |  | 14 Feb 08 
"3.3 | Document Classification ---|--- This document is classified as FREESCALE INTERNAL USE ONLY. The information disclosed herein is the property of Freescale. Freescale reserves all proprietary, design, manufacturing, reproduction, use, and sales rights thereto, and to any article or process utilizing such information, except to the extent that rights are expressly granted to others."
"4.0 | PROCEDURE ---|--- Available scientific evidence indicates that ozone depleting compounds, when released into the environment, initiate chemical reaction in the upper atmosphere which contributes to the deterioration of the earths protective ozone layer, thereby posing a long term threat to human health and the environment. EPA Clean Air Act prohibits venting of ozone depletion compounds and requires the phase-out of production of some of these chemicals. In addition, Section608 of the EPA Clean Air Act establishes other requirements to maximize recycling of ozone depleting compounds."
"|  | Responsible for having a refrigeration equipment service form filled out for each service that comes into contact with the refrigerant of the refrigeration equipment. Freescale provides the Refrigeration Equipment Service Form, #12MAZ00323B001 and/or #12MAZ00323B002 for services of refrigeration equipment. The refrigerant equipment owner will maintain the completed equipment service form(s) according to its recordkeeping requirements of maintenance records. Refer to the EHS web site: http://compass.freescale.net/go/form to obtain the applicable form. An alternative refrigeration equipment service form can be provided by the certified outside refrigeration equipment company with the information that meets the requirements in 40 CFR 82, and document the scope of the service and the equipment that is serviced. |  | After each service | | |  | Responsible for having a Refrigerant Accidental or Unintentional Release Form, #12MAZ00323B003, filled out for any accidental or unintentional release of refrigerants into the atmosphere. Refer to the EHS web site: http://compass.freescale.net/go/form to obtain the form. The refrigerant equipment owner will maintain the completed form(s) according to its recordkeeping requirements of maintenance records. The use of the Refrigerant Accidental or Unintentional Release Form, #12MAZ00323B003, is optional for appliances containing less than 50 pounds as long as the information about the refrigerant release is kept in a refrigerant management database, refrigerant tracking spreadsheet, etc. |  | As needed | | |  | When a leak is detected on a unit that contains more than 50 pounds of refrigerant, necessary repairs should be made as soon as possible after the leak is detected. As a general guideline, if the leak repair cannot be arranged or conducted after the leak is detected on the same day or next business day, notify the SRM for immediate assessment and leak rate calculation to determine a repair schedule according to the leak rate of the refrigerant equipment. |  | As needed, when the repair cannot be performed or planned immediately after the leak is detected "
"|  | Responsible for not mixing refrigerants |  | As needed  | Responsible for using a clean recovery, recycle and/or transfer unit or vessel for each refrigerant |  | As needed  | Responsible for properly labeling each recovery, recycle and/or transfer unit or vessel and refrigerant cylinder |  | As needed  | Responsible for capturing and labeling extra/contaminated oil or refrigerant from refrigeration equipment |  | As needed | | Refrigeration Equipment"
|  | Incorporated discharges of refrigerant to the atmosphere into the Refrigerant Accidental or Unintentional Release Form. Added forms numbers and titles to Section 3.1 and in all applicable sections. Changed the document and forms titles. Changes made by Elizabeth Betancourt |  | J.Lund |  | 20 Jun 02 | | | C
"5.2.2 | Equipment Modification Sign-off Requirement ---|--- When a piece of equipment/tool is planned to be modified, the department that owns the equipment must review the modification with safety representative and environmental representative to determine if the modification activity triggers a new a sign-off process. The following is a listing of items definitely requiring sign-off process activation:"
"5.5 | Gas Cabinet, Chemical Dispense Modules& VMB General Sign-off Criteria ---|--- All chemical delivery systems must undergo equipment sign-off process prior to start-up of equipment. All appropriate utility disciplines shall participate in this process to include chemical management department, if applicable. The format for the sign-off shall be the same as in section 5.1 titled Manufacturing Equipment/Tool Installation Sign-off Procedure of this document."
|  | Added section 6.4 to include the refrigeration equipment owned and/or operated by Facilities Operations for decommissioning and relocation purposes. Added exception statement under Scope and included a definition of Site Refrigerant manager. Updated 12MAZ00153B002. Revised by H. Kwong and J. Bucciarelli |  | J. Lund |  | 21May08 
"Description EHS Management |  | EHS Manager and management staff ManagementTeam |  | Management team comprised of organizational managers capable of setting/defining organizational goals and priorities and allocation of resources to support those goals and objectives EHS Staff |  | EHS Employees at the site, including the EHS Management "
"4.1.2 | Formalizing EHS Goals and Capital Planning ---|--- Once the EHS management has prioritized all potential EHS goals, the EHS management must determine which goals are potentially achievable given staffing& resource limitations. One Improvement of Environmental Performance goal per year (at minimum) will be adopted, refer to Corporate Environmental, Health and Safety Management Plan (A1000)."
"|  | When EHS Management EHS |  | Coordinate preparation of the EHS Management Review presentation materials and scheduling of the meeting with sites Management Team. |  | Atleastannually. Also, when a significant issue that needs to be reviewed, approved or funded by the site senior management emerges, schedule the EHS review as soon as possible."
"|  | When Requestor |  | Obtain an MSDS of new chemical from the manufacturer. Refer to control document #12MAZ00215B, Hazard Communication |  | Priortoorder new chemical/sample | | |  | Request completion of Freescale Arizona Chemical Disclosure Questionnaire from chemical manufacturer. The questionnaire can be accessed at littp://compass.freescale.net/go/chemdisclosure |  | When only minimal data is provided on the MSDS and EHS is unable to verify compliance with this document and/or regulatory requirements per EHS request | | |  | Submit New Chemical/Sample MSDS Approval Requests and MSDS to obtain EHS Approval. The Request can be accessed through the Freescale intranet at http://compass.freescale.net/go/azmsds Follow the Instruction on the website (click on Help for instruction) to submit the request. |  | Prior to order new chemical/ sample | | EHS Program/System Champion(s) |  |"
|  | Retention 4.1 |  | Approved MSDSs |  | 30yearsafterlast use of chemical | | 4.1 |  | Alert Chemical Tracking Worksheet |  | Retained by corporate EHS | | 4.1 |  | Completed Chemical Disclosure Questionnaire |  | 30 years from record creation 
"|  | Retention 4.1 |  | Completed New Chemical/Sample MSDS Approval Requests |  | 30yearsfrom recordcreation | | 4.1 |  | List of Approved Chemicals |  | 30yearsfromlast record entry | | 4.1 |  | List of Archived MSDSs |  | 30 years from last record entry Refer to control document #12MWS10510D, Records Management Procedure which outlines the requirements for compliance with Records Management Policy SOP 4-15."
"It is the policy of Freescale Semiconductor to conduct all business activities in a responsible manner, free from recognized hazards and to respect the environment, health, and safety of our employees, customers, suppliers, partners and the community. We will comply with all environmental, health, and safety laws and regulations of countries where we operate, and we will strive to foster the sustainable use of the earths resources. We are committed to the implementation, maintenance and continuous improvement of our EHS management systems."
"Procedures to make persons working for or on behalf of the company aware of the importance of conformity with the EHS policy and procedures and with the requirements of the EHS management system, the significant EHS aspects and related actual or potential impacts associated with their work, and the environmental benefits of improved personal performance, their roles and responsibilities in achieving conformity with the requirements of the EHS management system, and the potential consequences of departure from specified procedures are included in document 12MAZ00113B, EHS Communication, Awareness and Employee Participation. This procedure demonstrates ongoing and meaningful management and employee involvement in relevant EHS initiatives."
"This procedure ensures continuing suitability, adequacy and effectiveness of EHS Management System. The management of progress towards EHS goals and the EHS Management System reviews involve at a minimum, the Operations Managers and site EHS management. These reviews are to be documented and take into account assessment results, changing processes, products, regulatory constraints, and the commitment to continual EHS improvement. These reviews address the possible need for changes to the operations policy, goals, and other programs that address the elements of the EHS Management System."
"|  | Merged Price and Elliot EHS Management System Plan (68ASA66401B) into the Chandler Sites EHSMS Plan. Renamed the document to Arizona EHS Management System Plan. Revised text and format from Motorola to Freescale. Updated the designated responsible manager. Deleted Site EHS Policy as the site adopts Corporate EHS Policy, updated corporate EHS policy, updated site Management Endorsement to include current Chandler and Tempe Site Managers. Other content changes to address procedures in both Arizona sites. Revised by Hana Dostalova. |  | JLund |  | 31Jan05 | | | G"
"|  | Removed references to 68ASA66129B (EHS Records), and 68ASA66117B (EHS Documentation and Document Control). Added references to 12MWS10510D (Records Management) and 12MQE00005A (Document and Data control). Updated Section 1.0, Site Managers Statement to include current management. Updated section 4.1.1 - new title for Amy Belger. Changed document number and reference documents from 68As to 12Ms. Added iCAP classifications. |  | J Lund |  | 25 Jan 08 | | | J"
"|  | Contact EHS Program/System Champion immediately when the operating parameter of the air abatement equipment is out of the specifications, or when an emergency occurs that may lead to permit violation or threaten the safety and health of personnel or the environment. |  | As needed  | Ensure newly employed personnel work under the supervision of a trained person before starting to operate or service the air abatement equipment alone. |  | Until trained and authorized by supervision  | Ensure air abatement equipment training is completed for any new employee. |  | Continually | | EHS Management, EHS"
"|  | Report non-conformances to wastewater permit conditions/limitations in accordance with control document #12MAZ00132B Regulatory and Operational Reporting and #12MAZ00128B Non-Conformance and Corrective & Preventive Action |  | As needed | | EHS Manager, Facilities Operations and Maintenance Manager, EHS Program/System Champion |  | Responsible for compliance with industrial wastewater discharge permit limits. |  | Continually | | FacilitiesOperationsand Maintenance |  | Responsible for performing preventive maintenance (PM) on equipment and instrumentation of the wastewater treatment system and generating records of maintenance. Refer to control document #12MWS10510D, Records Management Procedure. |  | According to PM program | | |  | Contact EHS Program/System Champion immediately when the pH of the wastewater discharge is not within the permitted pH limits, or when an emergency occurs in the wastewater treatment systems that may lead to a permit violation or threaten the safety and health of personnel or the environment. |  | As needed | | |  | Ensure the newly employed Wastewater Operator works under the supervision of a trained Wastewater Operator before starting to operate or service the wastewater treatment system alone. |  | Until trained and authorized by supervision | | |  | Ensure wastewater treatment training is completed for any new employee. |  | Continually | | EHS Program/System Champion, Facilities Engineering, and/or FacilitiesOperationsand Maintenance |  | Determine the root cause of a permit violation or a system failure. Assure that a corrective/preventive action plan is implemented to address the deficiency. Refer to control document #12MAZ00128B, Non-Conformance and Corrective & Preventive Action. | | After a violation occurs or a significant system failure that would lead to a permit violation or pose threats to the safety and health of personnel. "
|  | Continually  | Evaluate the need for surface water pollution prevention plan for construction activities and develop a written plan if required. Refer to 40 CFR 122.26(b)(15) for requirements on storm water discharges associated with small construction activity under EPAs storm water program. |  | As Needed 
"When EHS Professional(s) |  | Maintain the Spill Prevention Control and Countermeasures (SPCC) Plans. Each site maintains a SPCC Plan that describes procedures to prevent releases of oil based hazardous liquids to the environment. |  | Continually | | |  | Conduct regular inspections of bulk tanks containing regulated hazardous materials, and their secondary containment areas for leaks and signs of deterioration in accordance with control document #12MAZ00119B, Hazardous Materials System. |  | Monthly | | |  | Address hazardous material storage and secondary containment deficiencies and spills in accordance with control documents #12MAZ00128B, Non-Conformance and Corrective & Preventive Action and #12MAZ00132B, Regulatory and Operational Reporting |  | As needed | | Facilities Engineering Manager |  | Ensure secondary containments are provided for all external hazardous material storage facilities. |  | Continually | | Facilities Operations and Maintenance, EHS Program/System Champion (site specific) |  | Ensure the diesel tanks and the secondary containment of emergency generators and fire pumps are inspected for their integrity and for signs of spills. Provide maintenance or repairs as needed. |  | Periodically during scheduled preventive maintenance activities, or monthly (site specific) "
"Retention 4.5 |  | Air permit monitoring, measurement, and calibration records as well as reports to regulatory agencies |  | Yearcreated+30yrs | | 4.6 |  | Wastewater discharge and wastewater treatment monitoring, measurement, and calibration records as well as reports to regulatory agencies |  | Yearcreated+30yrs Refer to control document #12MWS10510D, Records Management Procedure which outlines the requirements for compliance with Records Management Policy SOP 4-15."
|  | Changed Stormwater Pollution Prevention Plan to a work aid by removing it from Section 5.1. Added Section 4.3.e to address pollution prevention related reports. Modified Section 4.3.b to remove regulatory or operations reports to a new Section 4.3.e. Updated the list of required records and record retention in Section 5.1. Document revised by Hsi-An Kwong. |  | J Lund |  | 15May06 | | | K
" | 4. | On the earlier of (i)a written request by Freescale, or (ii)the termination of this Agreement, User will promptly deliver to the designated Freescale representative all Freescale documents, Proprietary Information, records, passwords, access codes, user ids and other data which relate to the business activities of Freescale and were received by User under this non- disclosure Agreement-computer access. ---|---|--- "
"1.07 Commencement Date. The date when all of the following have occurred: (i)all of the Improvements to Premises be constructed by Landlord have been substantially completed in accordance with Exhibit B, (ii)a certificate of occupancy and/or a conditional use permit or other such document has been issued for the Premises by the applicable governing authority, if required, and (iii)Landlord has delivered the Premises to Tenant. Substantial completion shall be defined as completion of all Improvements to Premises subject only to the completion of minor punch-list items that do not interfere with Tenants use and occupancy of the Premises"
"1.14 Percentage of Operating Costs. For Building Operating Costs, a li- action, the numerator of which is the total rentable area of the Premises and the denominator of which is the total rentable area of the Building. For Project Operating Costs, a fraction, the numerator of which is the total rentable area of the Premises and the denominator of which is the total rentable area of the Project."
"2.04 Holding Over. If the Tenant continues to occupy the Premises beyond the expiration or of the Term or any earlier termination of this Lease and Landlord consents to such continuation, such occupancy shall be a month to month tenancy subject to all of the other terms and conditions contained in this Lease, except that the Base Monthly Rent payable during the period of such occupancy shall be equal to one and one-quarter times (125%)the amount of the Base Monthly Rent which was last in effect during the Term. Nothing in the foregoing shall be deemed in any way to limit or impair the Landlords right to immediately evict the Tenant or exercise its other rights and remedies under the provisions of this Lease or applicable law, including the collection of consequential and other damages, on account of the Tenants occupancy of the Premises without having obtained Landlords prior consent."
"(D) The Operating Costs shall mean all expenses, costs and disbursements of every kind and nature incurred in connection with the ownership, management, maintenance, repair, replacement and operation of the Building and Project, including but not limited to the following: (1)cost of any utilities which are not submetered directly to tenant spaces; (2)cost of repairs and general maintenance to the Building, (3)costs of repairs, replacements and general maintenance to the parking areas, all sidewalks and other common facilities, and all other improvements at the Project. For purposes of this provision, Operating Costs shall not include (a)the cost of capital improvements (except as expressly provided above), (b)the costs of tenant improvements within tenant spaces, (c)ground rent or debt service, (d)depreciation, (e)expenses incurred in leasing, obtaining new tenants or leasing commissions, (f)accounting or legal services (g)costs or expenses for which Landlord is or will be reimbursed or indemnified (whether by an insurer, condemnor, tenant or otherwise), should Landlord be reimbursed, Landlord will credit reimbursement back to Tenant, (h)cost of correcting any applicable building or fire code violation(s) or violations of any other applicable law relating to the Project, and/or the cost of any penalty or fine incurred for noncompliance with the same, if such violation exists as of the Commencement Date and Landlord is deemed responsible for the violation; or (i)costs for entertainment or building promotional expenses."
"4.03 Common Areas& Parking. The Landlord hereby grants to the Tenant a non- exclusive license to use all other common areas of the Building and the surrounding grounds on which the Building is located which are manifestly designed and intended for common use by the occupants of the Building, all for pedestrian ingress and egress to and from the Premises."
"4.04 Right of Entry. Landlord and its agents and contractors shall be entitled to enter the Premises at any time (a)to inspect the Premises, (b)to exhibit the Premises to any existing or prospective purchaser, tenant or mortgagee thereof, (c)to make any alteration, improvement or repair to the Building or the Premises, or (d)for any other purpose relating to the operation or maintenance of the Project, all provided that the Landlord shall (1)give the Tenant at least 24 hours prior notice of its intention to enter the Premises (unless doing so is impractical or unreasonable because of emergency), and (2)use reasonable efforts to avoid interfering with the Tenants use and enjoyment thereof."
"5.03 Waiver of Subrogation. Notwithstanding anything to the contrary in this Lease, Landlord and Tenant each waives all rights to recovery, claims or causes of action against the other and the others agents, trustees, officers, directors and employees on account of any loss or damage which may occur to the Premises, the Project or any improvements thereto or to any personal property of such party to the extent such loss or damage is caused by a peril which is required to be insured against under this Lease, regardless of the cause or origin (including negligence of the other party). Landlord and Tenant each covenants to the other that, to the fullest extent permitted by law, no insurer shall hold any right of subrogation against the other party. Tenant covenants to Landlord that all policies of insurance maintained by Tenant respecting property damage shall permit such waiver of subrogation, and Tenant agrees to advise all of its insurers in writing of the waiver."
"6.01 Initial Improvements. Certain improvements shall be constructed in the Premises by Landlord as described in Exhibit B hereto (the Space Improvements) for the purpose of initially preparing the Premises for occupancy by Tenant. Prior to the Commencement Date, any work performed by Tenant or any fixtures or personal property moved into the Premises shall be at Tenants own risk. Landlord shall use commercially reasonable efforts to complete such improvements on or before the Commencement Date set forth in the Fundamental Lease Provisions, but Landlord shall have no liability to the Tenant hereunder if prevented from doing so for any reason whatsoever, including but not limited to strike or other labor troubles, governmental restrictions, failure or shortage of utility service, national or local emergency, accident, flood, fire or other casualty, adverse weather condition, other act of God, inability to obtain a building permit or a certificate of occupancy, or any other cause beyond the Landlords reasonable control. In such event, the Commencement Date and expiration date of the Term shall be postponed for a period equaling the length of such delay. If any delay in completion of the Space Improvements or in delivering possession of the Premises is deemed to be caused by Landlords gross negligence and as a result, the Initial Improvements are not completed by July31, 2011, Tenant shall have the right to cancel this Lease and have no other obligations hereto. However, if any delay in completion of the Space Improvements or in delivering possession of the Premises to Tenant are caused by Tenant, including Tenants requesting changes in the Space Improvements which delay completion thereof, then Tenant shall commence all of its obligations hereunder (including the payments of Rent), and all terms herein shall be effective and binding, on that date reasonably calculated by Landlord or its contractor as the date on which Landlord would have substantially completed the Space Improvements if not for such delay."
"resulting from such removal, all at Tenants expense. Furthermore, Tenant shall indemnify Landlord from all damages, losses or liability arising from such alterations or improvements, or the construction or removal thereof, by Tenant or by any other party other than Landlord. Without securing Landlords prior consent, Tenant shall be permitted to hang pictures and shelving and perform other similar minor decorating activities and to perform non- structural alterations, which alterations do not require the acquisition of a building permit, provided that Tenant complies with all pertinent building code, fire, safety and other such governmental regulations."
"6.05 Fixtures. Any and all improvements, repairs, alterations or other property attached to, used in connection with or otherwise installed within the Premises by the Landlord or the Tenant shall, immediately on the completion of their installation, become the Landlords property without payment therefor by the Landlord. However, upon the expiration of the Term, Tenant shall have the right to remove any furniture, inventory and equipment which is not affixed to the Premises or paid for by Landlord through improvement allowances or otherwise."
"(A) except as required by law, to keep all Tenant financial statements confidential and not to disclose or reveal such financial statements to any person other than those employed by Landlord or on its behalf who are actively and directly participating in the evaluation of Tenants unrestricted cash position and to cause those persons to observe the terms of this Section; and"
"10.02 Effect of Condemnation. If (a)all of the Premises are covered by a Condemnation, or (b)any part of the Premises is covered by a Condemnation and the remainder is insufficient for the reasonable operation of the Tenants business, or (c)any of the Buildings is covered by a Condemnation and, in the Landlords reasonable opinion, it would be impractical to restore the remainder thereof, or (d)any of the rest of the Project is covered by a Condemnation and, in the Landlords reasonable opinion, it would be impractical to continue to operate the remainder of the Project thereafter, then, in any such event, the Term shall terminate on the date on which possession of the property covered by such Condemnation is taken by the condemning authority thereunder, and all Rent (including any Additional Rent and other charges payable hereunder) shall be apportioned and paid to such date. If there is a Condemnation and the Term does not terminate pursuant to the foregoing provisions of this subsection, the operation and effect of this Lease shall be unaffected by such Condemnation, except that the Base Rent shall be reduced in proportion to the square footage of floor area, if any, o F the Premises covered by such Condemnation."
"10.03 Interruption. If there is a Condemnation, the Landlord shall have no liability to the Tenant on account of any (a)interruption of the Tenants business upon the Premises, (b)diminution in the Tenants ability to use the Premises, or (c)other injury or damage sustained by the Tenant as a result of such Condemnation."
"11.06 Landlords Transfers. Landlord shall have the unrestricted right to assign or transfer its interest in this Lease to purchasers of the Building, to holders of mortgages or deeds of trust on the Building, or to any other party, in which event Landlord shall be released from all duties, obligations and liabilities arising hereunder after the assignment or transfer becomes effective."
"(C) No such notice shall be required, and the Tenant shall be entitled to no such grace period, (1)in any emergency situation in which the Landlord acts to cure such Event of Default pursuant to the provisions of subsection (B)in 14.03 below, or (2)if the Tenant has substantially terminated or is in the process of substantially terminating its continuous occupancy and use of the Premises, or (3)in the case of any Event of Default enumerated in the provisions of subsection (B), items (1), (3), (4), (5), (6)or (7)in 14.01 above."
"(D) With or without terminating this Lease, and from time to time, make such improvements, alterations and repairs as may be necessary in order to relet the Premises, and relet he Premises or any part thereof upon such term or terms (which may be for a term extending beyond the term of this Lease) at such rental or rentals and upon such other terms and conditions (which may include concessions, free rent and/or improvements) as Landlord in its sole discretion may deem advisable; and, upon each such reletting, all rentals received by Landlord shall be applied, first, to the payment of any indebtedness other than Rent due hereunder from Tenant to Landlord, second, to the payment of all costs and expenses of such reletting (including but not limited to brokerage fees, attorneys fees and costs of improvements, alterations and repairs), third, to the payment of all Rent due and unpaid hereunder, and the balance, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder;"
"14.04 Damages. Upon any Event of Default, Tenant shall remain liable to the Landlord for the following amounts: (a)any Rent of any kind whatsoever which may have become due with respect to the period in the Term which has already expired, (b)all Rent which becomes due during the remainder of the Term less the actual net rent collected by Landlord from successor Tenant(s) for the Premises of which such collections will be reimbursed to Tenant upon receipt, (c)all unamortized costs, fees and expenses incurred by Landlord for leasing commissions, construction and other build-out, design and permitting costs for any replacement tenant incurred during the term of this Lease in the event Tenant does not complete the full term of the Lease and (d)all costs, fees and expenses incurred by Landlord in pursuit of its remedies hereunder,"
"14.05 Landlord Default. Landlord shall be in default under this Lease if Landlord fails to perform any of its obligations or breaches any of its covenants contained in this Lease and (unless another time limit is elsewhere in this Lease specifically provided) the default continues for a period of 30 days after written demand for performance is given by Tenant, or if the default is of such a character as to require more than 30 days to cure and Landlord shall fail to commence said cure promptly and use reasonable diligence in working to complete such cure."
"3\. No awning, canopy, sign or other projection shall be attached to the outside walls or windows of the Building without Landlords prior written consent. No curtain, blind, shade, or screen (other than those furnished by Landlord as building standard) shall be attached to, hung in or used in connection with any window or door of the premises of any tenant."
"6\. No change shall be made in door locks, including the addition of locks, without Landlords prior written consent. Landlord will allow tenant to have the locks changed when tenant moves in. Upon lock change, Tenant shall supply Landlord with a duplicate key for Landlord emergency access. Each tenant must upon the termination of its tenancy restore to Landlord all keys to offices and toilet rooms either furnished to, or otherwise procured by, such tenant. In the event of the loss of any keys during the Term, Tenant shall pay Landlord the reasonable cost of replacement keys."
"work performed in the Building, including installation of telephones, telegraph equipment, electrical devices and attachments and any installation of any nature affecting floors, walls, woodwork, trim, windows, ceilings, equipment or any other physical portion of the Building. Such approval, if given, shall in no way make Landlord a party to any contract between tenant and any such contractor, and Landlord shall have no liability therefor."
"19\. Landlord does not clean or maintain suite finishes which are non- standard, such as kitchens, bathrooms, wallpaper, special lights, etc. Landlord shall have no obligation to repair, re-stretch, or replace carpeting, but will spot-clean and sweep carpeting as part of any janitorial services required to be furnished by Landlord under the Lease. Tenants shall not cause unnecessary labor by reason of carelessness or indifference in the preservation of good order and cleanliness. The work of the janitor or cleaning personnel shall not be hindered by Tenant after 5:30 p.m., and such work may be done at any time when the offices are vacant. The windows, doors and fixtures may be cleaned at any time without interruption of purpose for which the Premises are let. Tenant shall provide adequate waste and rubbish receptacles, cabinets, bookcases, map cases, etc. necessary to prevent unreasonable hardship to Landlord in discharging its obligation regarding cleaning service. Boxes should be broken down to fit into containers."
(28) Properties: the real properties and improvements thereon owned by SNH or a subsidiary of SNH and which are either leased to or managed by FVE or a subsidiary of FVE as senior living facilities; and shall include the FVE Properties upon consummation of the transactions contemplated by the Purchase Agreement.
"(2) the Existing Pooling Agreements will terminate as of the Effective Date and upon termination of the Existing Pooling Agreements, no further payments (including amounts accrued and unpaid in respect to the Aggregate TRS Priority Return and Aggregate Incentive Fee under the Existing Pooling Agreements) will be due under such Existing Pooling Agreements, other than adjustments to the amounts payable in respect of Aggregate Base Fee and Aggregate TRS Priority Return for periods prior to the Effective Date as contemplated by Section3.02 of the Existing Pooling Agreements. To the extent any payments of Aggregate Base Fee or Aggregate TRS Priority Return have been made under an Existing Pooling Agreement with respect to a period commencing on or after the Effective Date, such amounts shall be allocated among the applicable Facilities and applied to the TRSes obligation to make payments of Aggregate Base Fee and Aggregate Priority Return under the applicable Pooling Agreement."
"(1) Organization. Each FVE Party is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization or formation and has the requisite power and authority under the laws of such State and its organization documents to conduct its business as now being conducted, to own, operate and lease its properties and assets, and to enter into and perform its obligations under the Transaction Documents and consummate the transactions contemplated by the Transaction Documents."
"(3) No Violation. The execution and delivery by the FVE Parties of the Transaction Documents does not, and the consummation of the transactions contemplated by the Transaction Documents will not, (a)conflict with, or result in any violation of or default under, any provision of any FVE Partys organization documents; (b)conflict with or result in any violation of or default under, any law or judgment applicable to any FVE Party, or to which any of their properties are subject; or (c)conflict with, or, with or without notice or the lapse of time, result in a breach, termination (or right of termination) or violation of or default under the terms of any agreement, contract, indenture or other instrument to which any FVE Party is a party or subject, or to which any of their properties are subject, except, with respect to the foregoing clauses (b)and (c), as would not have a material adverse effect on any FVE Party or impair or delay the consummation of the transactions contemplated by the Transaction Documents."
"(4) Approvals. The execution and delivery by the FVE Parties of the Transaction Documents and the consummation of the transactions contemplated by the Transaction Documents do not require the consent, approval, order, or authorization of any person under any agreement, contract, indenture or other instrument or applicable laws to which any FVE Party is a party or to which any FVE Party or any of their properties are subject, except for any such consent, approval, order or authorization the failure of which to receive would not have a material adverse effect on any FVE Party or impair or delay the consummation of the transactions contemplated by the Transaction Documents. No declaration, filing or registration with any governmental entity is required by any FVE Party in connection with the execution and delivery by the FVE Parties of the Transaction Documents or the consummation of the transactions contemplated by the Transaction Documents, except for filings required under securities laws, and except for any such declaration, filing or registration the failure of which to file would not have a material adverse effect on any FVE Party or impair or delay the consummation of the transactions contemplated by the Transaction Documents."
"(5) Litigation. No investigation, action or proceeding is pending and, to FVEs knowledge, no action or proceeding is threatened and no investigation looking toward such an action or proceeding has begun, in respect of FVE or any of its subsidiaries which (a)questions the validity of any of the Transaction Documents or any action taken or to be taken pursuant thereto, (b)will result in any material adverse change in the business, operation, affairs or condition of any FVE Party or any of their properties or assets, (c)will result in or subject any properties or assets of any FVE Party to a material liability, or (d)involves condemnation or eminent domain proceedings against any properties or assets of any FVE Party."
"(3) No Violation. The execution and delivery of the Transaction Documents by the SNH Parties does not, and the consummation of the transactions contemplated by the Transaction Documents will not, (a)conflict with, or result in any violation of or default under, any provision of any SNH Partys organization documents; (b)conflict with, or result in any violation of or default under, any law or judgment applicable to any SNH Party or to which any of their properties are subject; or (c)conflict with, or, with or without notice or the lapse of time, result in a breach, termination (or right of termination) or violation of or default under the terms of any agreement, contract, indenture or other instrument to which any SNH Party is a party or subject or to which any of their properties are subject, except, with respect to the foregoing clauses (b)and (c), as would not have a material adverse effect on any SNH Party or impair or delay the consummation of the transactions contemplated by the Transaction Documents."
"(5) Litigation. No investigation, action or proceeding is pending and, to SNHs knowledge, no action or proceeding is threatened and no investigation looking toward such an action or proceeding has begun, in respect of SNH or any of its subsidiaries which questions the validity of the Transaction Documents or any action taken or to be taken pursuant thereto."
"(6) Costs. Except to the extent expressly provided by this Agreement 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."
"(k) Tenant shall, upon demand, pay to the Secured Party the amount of any and all reasonable expenses, including the reasonable fees and expenses of its counsel and of any experts and agents, which the Secured Party may incur in connection with (i)the administration of this Agreement, (ii)the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Collateral, (iii)the exercise or enforcement of any of the rights of the Secured Party hereunder and under such other agreements or (iv)the failure by Tenant to perform or observe any of the provisions hereof."
"(l) Tenant shall indemnify and hold harmless the Secured Party from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Secured Party in any way relating to or arising out of this Agreement or arising out of Tenants obligations under any other documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or the enforcement of any of the terms hereof or of any such other documents."
"Section4. Special Provisions Concerning Equipment. Tenant shall not impair the rights of the Secured Party in the Equipment. Regardless of the manner of the affixation of any Equipment to real property, the Equipment so attached shall at all times constitute and remain personal property. Tenant retains all liability and responsibility in connection with the Equipment and the liability of Tenant to pay the Obligations shall in no way be affected or diminished by reason of the fact that such Equipment may be lost, destroyed, stolen or damaged or for any reason whatsoever have become unavailable to Tenant. Upon the request of the Secured Party, Tenant shall provide to the Secured Party a current list of Equipment."
"(b) Tenant shall procure, pay for, affix to any and all documents and cancel any documentary tax stamps required by and in accordance with, applicable law, and Tenant shall indemnify and hold harmless the Secured Party from and against any liability (including interest and penalties) in respect of such documentary stamp taxes."
"Tenant hereby agrees that all of the foregoing may be effected without demand, advertisement or notice (except as hereinafter provided or as may be required by law), all of which (except as hereinafter provided) are hereby expressly waived, to the maximum extent permitted by law. The Secured Party shall not be obligated to do any of the acts hereinabove authorized and in the event that the Secured Party elects to do any such act, the Secured Party shall not be responsible to Tenant."
"(b) Upon the occurrence and during the continuance of an Event of Default, the Secured Party may take legal proceedings for the appointment of a receiver or receivers (to which the Secured Party shall be entitled as a matter of right) to take possession of the Collateral pending the sale thereof pursuant either to the powers of sale granted by this Agreement or to a judgment, order or decree made in any judicial proceeding for the foreclosure or involving the"
"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."
"11.5 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."
"Section14. NON-LIABILITY OF TRUSTEES. THE DECLARATION OF TRUST ESTABLISHING THE SECURED PARTY, DATED NOVEMBER 10, 20014, AS AMENDED AND SUPPLEMENTED, AS FILED WITH THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND, PROVIDES THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF THE SECURED PARTY SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE SECURED PARTY. ALL PERSONS DEALING WITH THE SECURED PARTY IN ANY WAY SHALL LOOK ONLY TO THE ASSETS OF THE SECURED PARTY FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION."
"2. Sublease. Upon and subject to the terms and conditions hereinafter set forth, Sublandlord hereby subleases to Subtenant, and Subtenant hereby subleases from Sublandlord, all of Sublandlords right, title and interest in, to, under and relating to the Subleased Property, including, without limitation, any leasehold rights of Sublandlord relating to the use or occupancy thereof."
"4. Rent. Commencing on the date hereof, Subtenant shall pay to Sublandlord, in accordance with the applicable terms and provisions of the Lease, all amounts due and payable by Sublandlord under the Lease with respect to the Subleased Property. The Minimum Rent shall be adjusted following any disbursement by Landlord with respect to the Subleased Property in accordance with Section3.1.1(c)of the Lease, and Minimum Rent hereunder may be adjusted to reflect the allocation and reallocation of Minimum Rent among the Leased Property (including, without limitation, the Subleased Property) by agreement between Landlord and Sublandlord in accordance with Section3.1.1(b)of the Lease."
"(f) Costs. Except to the extent expressly provided by this Sublease 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."
"(g) 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."
"(i) Intended Beneficiaries. This Section7 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."
"By notice given as herein provided, the parties hereto and their respective successors and assigns shall have the right from time to time and at any time during the term of this Sublease to change their respective addresses effective upon receipt by the other parties of such notice and each shall have the right to specify as its address any other address within the United States of America."
"3.8 Taxes, Etc. Each Subtenant Guarantor shall pay and discharge promptly as they become due and payable all taxes, assessments and other governmental charges or levies imposed upon such Subtenant Guarantor or the income of such Subtenant Guarantor or upon any of the property, real, personal or mixed, of such Subtenant Guarantor, or upon any part thereof, as well as all claims of any kind (including claims for labor, materials and supplies) which, if unpaid, might by law become a lien or charge upon any property and result in a material adverse change in the financial condition of such Subtenant Guarantor; provided, however, that such Subtenant Guarantor shall not be required to pay any such tax, assessment, charge, levy or claim if the amount, applicability or validity thereof shall currently be contested in good faith by appropriate proceedings or other appropriate actions promptly initiated and diligently conducted and if such Subtenant Guarantor shall have set aside on its books such reserves of such Subtenant Guarantor, if any, with respect thereto as are required by generally accepted accounting principles."
"3.11 Insurance. Each Subtenant Guarantor shall maintain, with financially sound and reputable insurers, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by owners of established reputation engaged in the same or similar businesses and similarly situated, in such amounts and by such methods as shall be customary for such owners and deemed adequate by such Subtenant Guarantor."
"4. Guarantee. Each Subtenant Guarantor hereby unconditionally guarantees that the Guaranteed Obligations which are monetary obligations shall be paid in full when due and payable, whether upon demand, at the stated or accelerated maturity thereof pursuant to any Lease No.5 Document, or otherwise, and that the Guaranteed Obligations which are performance obligations shall be fully performed at the times and in the manner such performance is required by the Lease No.5 Documents. With respect to the Guaranteed Obligations which are monetary obligations, this guarantee is a guarantee of payment and not of collectability and is absolute and in no way conditional or contingent. In case any part of the Guaranteed Obligations shall not have been paid when due and payable or performed at the time performance is required, the Subtenant Guarantors shall, in the case of monetary obligations, within five (5)Business Days after receipt of notice from Landlord, pay or cause to be paid to Landlord the amount thereof as is then due and payable and unpaid (including interest and other charges, if any, due thereon through the date of payment in accordance with the applicable provisions of the Lease No.5 Documents) or, in the case of non-monetary obligations, perform or cause to be performed such obligations in accordance with the Lease No.5 Documents."
"5. Set-Off. Each Subtenant Guarantor hereby authorizes Landlord, at any time and without notice, to set off the whole or any portion or portions of any or all sums credited by or due from Landlord to it against amounts payable under this Guaranty. The Landlord shall promptly notify such Subtenant Guarantor of any such set-off made by Landlord and the application made by Landlord of the proceeds thereof."
"(b) All notices required or permitted to be sent hereunder shall be deemed to have been given for all purposes of this Guaranty upon confirmation of transmission by senders machine in the case of a notice by facsimile, and, in all other cases, upon the date of receipt or refusal, except that whenever under this Guaranty 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."
"15.1 Disputes. Any disputes, claims or controversies between the parties (a)arising out of or relating to this Guaranty, 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 Section15, 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 Guaranty, 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 Section15. 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 Section15, the term party shall include any direct or indirect parent of a party."
"20. Headings; Counterparts. Headings in this Guaranty are for purposes of reference only and shall not limit or otherwise affect the meaning hereof. This Guaranty may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument, and in pleading or proving any provision of this Guaranty, it shall not be necessary to produce more than one of such counterparts."
"WHEREAS, the Secured Party leases certain real property to an affiliate of the Subtenants, Five Star Quality Care Trust, a Maryland statutory trust (Tenant), pursuant to that certain Master Lease Agreement (Lease No.5) of even date herewith (as the same may be amended, modified or supplemented from time to time, Lease No.5); and"
"(d) all claims, rights, powers or privileges and remedies relating to the foregoing or arising in connection therewith, including, without limitation, all Licenses and Permits which such Subtenant legally may grant a security interest in, rights to make determinations, to exercise any election (including, but not limited to, election of remedies) or option or to give or receive any notice, consent, waiver or approval; all liens, security, guaranties, endorsements, warranties and indemnities and all insurance, eminent domain and condemnation awards and claims therefor relating thereto or arising in connection therewith; all rights to property forming the subject matter of any of the foregoing, including, without limitation, rights to stoppagein transit and rights to returned or repossessed property; all writings relating to the foregoing or arising in connection therewith; and"
"Equipment shall mean all buildings, structures, improvements, fixtures and items of machinery, equipment and other tangible personal property which constitute, arise from or relate to the operation, maintenance or repair of each Subtenants Subleased Properties or any portion thereof, together with all repairs, replacements, improvements, substitutions, extensions or renewals thereof or additions thereto, all parts, additions and accessories incorporated therein or affixed thereto, and all equipment as such term is defined in the Uniform Commercial Code, and all cash and non-cash proceeds therefrom."
"Section2. Security Interest. As security for the prompt payment and performance of all the Obligations, each Subtenant hereby grants, pledges, transfers and assigns to the Secured Party, their successors and assigns and all other holders from time to time of the Obligations, a continuing security interest under the Uniform Commercial Code from time to time in effect in the jurisdiction in which any of the Collateral is located in and a continuing lien upon all of such Subtenants right, title and interest in the Collateral, together with any and all additions thereto and replacements, products and proceeds thereof, whether now existing or hereafter arising or acquired and wherever located."
"(e) All tangible personal property owned on the date hereof by such Subtenant to be used in connection with the operation or maintenance of each Subleased Property of such Subtenant, or any portion thereof, is located at each applicable Subleased Property or is in transit to such Subleased Property from the vendor thereof. Each Subtenant agrees that (i)all such property held by such Subtenant on the date hereof, once at each applicable Subleased Property, shall remain at such Subleased Property and (ii)all such property subsequently acquired by such Subtenant shall immediately upon acquisition be transferred to and remain at the applicable Subleased Property."
"(f) Such Subtenants corporate name and organizational identification number are as set forth on Schedule 1 attached hereto. The name under which each of the Facilities is operated is set forth on Schedule 2. Each Subtenant agrees that it shall not (i)change such names without providing the Secured Party with thirty (30) days prior written notice and making all filings and taking all such other actions as the Secured Party determines is necessary or appropriate to continue or perfect the security interest granted hereunder, (ii)change its corporate organizational number, nor (iii)conduct its business in any other name or take title to any Collateral in any other name while this Agreement remains in effect. Except as otherwise set forth on Schedule 1, no Subtenant has ever had any other name or conducted business in any other name in any jurisdiction. Each Subtenants organizational structure is as set forth on Schedule 1 attached hereto. Subject to the terms and conditions of Lease No.5 and the Subleases, no Subtenant shall change its organizational structure or jurisdiction of organization without giving at least thirty (30) days prior written notice thereof to the Secured Party."
No Subtenant shall have any claim against the Secured Party by reason of its decision not to make any payments or perform such obligations permitted under this Section3(g). Each Subtenant shall repay to the Secured Party any sums paid by the Secured Party upon demand. Any sums paid and expenses incurred by the Secured Party pursuant to this paragraph shall bear interest at the Overdue Rate.
"(k) Each Subtenant shall, upon demand, pay to the Secured Party the amount of any and all reasonable expenses, including the reasonable fees and expenses of its counsel and of any experts and agents, which the Secured Party may incur in connection with (i)the administration of this Agreement, (ii)the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Collateral, (iii)the exercise or enforcement of any of the rights of the Secured Party hereunder and under such other agreements or (iv)the failure by such Subtenant to perform or observe any of the provisions hereof."
"(l) Each Subtenant shall indemnify and hold harmless the Secured Party from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Secured Party in any way relating to or arising out of this Agreement or arising out of such Subtenants obligations under any other documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or the enforcement of any of the terms hereof or of any such other documents."
"11.9 Intended Beneficiaries. This Section11 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."
"Section14. NON-LIABILITY OF TRUSTEES. THE DECLARATION OF TRUST ESTABLISHING THE SECURED PARTY, DATED NOVEMBER 10, 2004, AS AMENDED AND SUPPLEMENTED, AS FILED WITH THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND, PROVIDES THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF THE SECURED PARTY SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE SECURED PARTY. ALL PERSONS DEALING WITH THE SECURED PARTY IN ANY WAY SHALL LOOK ONLY TO THE"
"5. Master Lease Agreement, dated as of September1, 2008, by and among SNH RMI Fox Ridge Manor Properties LLC, SNH RMI Jefferson Manor Properties LLC, SNH RMI McKay Manor Properties LLC, SNH RMI Northwood Manor Properties LLC, SNH RMI Oak Woods Manor Properties LLC, SNH RMI Park Square Manor Properties LLC, SNH RMI Smith"
"2.04 Benefits. Executive shall be eligible to participate in all other employee benefit programs of the Company offered from time to time during the Employment Term by the Company to employees or executives of Executives rank, to the extent that Executive qualifies under the eligibility provisions of the applicable plan or plans, in each case consistent with the Companys then- current practice as approved by the Board and/or the Committee from time to time. The foregoing shall not be construed to require the Company to establish such plans or to prevent the modification or termination of such plans once established, and no such action or failure thereof shall affect this Amended Agreement. Executive recognizes that the Company and its Affiliates have the right, in their sole discretion, to amend, modify or terminate their benefit plans without creating any rights in Executive."
"(b) The Company shall have the right to terminate the Employment Term in the event of Executives Disability. Disability means that Executive has been unable, for ninety (90) consecutive days or for periods aggregating one hundred and twenty (120) business days in any period of twelve (12) consecutive months, to perform Executives duties under this Amended Agreement as a result of physical or mental impairment, illness or injury, as determined in good faith by a majority of the Board. A termination of Executives employment for Disability shall be communicated to Executive by written notice and shall be effective on the tenth (10th) day after receipt of such notice by Executive (the Disability Effective Date), unless Executive is able to perform the essential functions of his job, with or without a reasonable accommodation, before the Disability Effective Date."
"4.02 Good Reason; Without Cause. If the Employment Term is terminated by Executive pursuant to Section 3.03(a), or if the Company terminates the Employment Term other than pursuant to Section 3.01(b) or 3.02(a), the Company shall pay to or on behalf of Executive, as Executives sole and exclusive remedy, in lieu of all other remedies at law or in equity, for such termination, which Executive acknowledges to be fair and reasonable, the following amounts set forth in this Section 4.02:"
"4.04 Failure to Extend. If the Company elects to cause the Employment Term to terminate on the third anniversary of the date hereof pursuant to Section 1.01, the Company shall pay to or on behalf of Executive, as Executives sole and exclusive remedy, in lieu of all other remedies at law or in equity, for such election not to extend the Employment Term, which Executive acknowledges to be fair and reasonable, the following amounts set forth in this Section 4.04:"
"(d) Executive acknowledges that the market for the Companys products, services, and activities is global, that the Company and its Affiliates currently conduct operations and provides products and services in numerous international markets and that the Company and its Affiliates currently have plans to conduct operations and provide products and services in additional international markets. Moreover, Executive recognizes that the Companys customers may be contacted by telephone, in person, or in writing (including, without limitation, via e-mail or the Internet). Executive further acknowledges that due to the international scope of the Companys customer and client base, the covenants set forth in the following Sections in this ARTICLE VI are necessary to protect the Companys and its Affiliates interests."
"6.03 Non-Solicitation of Employees. Executive agrees that during the Employment Term and during the Restricted Period, Executive will not, directly or indirectly, (a) induce or solicit any person who was an employee, consultant or independent contractor of the Company or any of its Affiliates to terminate such individuals employment or service with the Company or any of its Affiliates, (b) hire or retain the services of any such person, regardless of whether such person had been solicited for employment, or (c) assist any other person or entity in such activities."
"(c) solicit proxies, or be a Participant in any entity that directly or indirectly solicits proxies, or become a Participant in any solicitation of proxies, with respect to the election of directors of the Company or any of its Affiliates (or any of their successors) in opposition to the nominees recommended by the board of directors or similar governing body of any such entity; or"
"(c) Executives continued employment with the Company, the compensation paid to Executive by the Company, the provision of benefits to Executive by the Company, Executives current ownership (directly or indirectly) in the Company, the Execution Award granted to the Executive, and Executives commitment not to disclose Confidential Information, among other things, are sufficient consideration for Executives covenants contained herein;"
"6.07 Early Resolution Conference. The parties are entering into this Amended Agreement with the understanding that this Amended Agreement is clear and enforceable. If Executive decides to contend that any restriction on his activities under this Amended Agreement is not enforceable or does not apply to an activity Executive intends to pursue, Executive first will notify the Company in writing and meet with a Company representative at least fourteen (14) days before engaging in any activity that could foreseeably fall within the questioned restriction, in an effort for both parties to reach a clear interpretation and resolution of such activities (an Early Resolution Conference). Should the parties not resolve the dispute at the Early Resolution Conference, the parties may pursue their rights hereunder, including, but not limited to, the injunctive relief available to the Company pursuant to Sections 5.04 and 9.06 of this Amended Agreement."
"7.01 Representations of Executive. Executive represents and warrants to the Company that Executive has the capacity to enter into this Amended Agreement and the other agreements referred to herein, and that the execution, delivery and performance of this Amended Agreement and such other agreements by Executive will not violate any agreement, undertaking or covenant to which Executive is party or is otherwise bound."
"ARTICLE V or ARTICLE VI hereof because they are more extensive (whether as to geographic area, scope of business or otherwise) than necessary to protect the business and goodwill of the Company and/or any of its Affiliates, it is expressly understood and agreed between Executive and the Company that for purposes of such proceeding the geographic area, scope of business or other aspect shall be deemed reduced to the extent necessary to permit enforcement of such covenants."
"None of the provisions, terms, or clauses of this Agreement may be changed except if made in writing signed by both Executive and the Company. Any waiver of any term or provision of this Agreement must be in writing and be signed by the party granting the waiver. If any of the provisions, terms, or clauses of this Agreement are declared illegal, unenforceable, or ineffective, those provisions, terms, and clauses shall be deemed severable, such that all other provisions, terms and clauses of this Agreement shall remain valid and binding upon both parties. "
"In accordance with the Consulting Agreement between Executive and the Company dated September 26, 2016 (the Consulting Agreement), Executive is eligible to receive a success fee based on the Companys after-tax net profit for the first fiscal quarter of 2017, subject to Executive providing the Company with a release of claims. The Company has determined that a success fee is in fact payable, and this Agreement provides for the required release of claims."
"Executive, on behalf of himself, his heirs, legal representatives, successors- in-interest, and assigns, does hereby irrevocably and unconditionally release, acquit, and forever discharge the Company, including all of its past, present, and future parents, subsidiaries, affiliated companies, and owners and all of their past, present, and future predecessors, successors, assigns, agents, directors, officers, employees, representatives, attorneys, and insurers and all persons acting by, through, under, or in concert with any of them (collectively Releasees), and each of them, of and from all claims, complaints, actions, causes of action, rights, demands, debts, obligations, damages, or accountings of whatever nature, in law or in equity, which Executive may have, in the past may have had, or in the future may have against Releasees, or any of them, by reason of, arising out of, or in any way related to Executives employment or consulting services with the Company, the termination of that employment or consulting services, or any other matters of whatever nature, whether known or unknown, occurring prior to the date of Executives execution of this Agreement (herein collectively Claims). "
"The Claims being released include, but are not limited to, all common law claims, including any express or implied contractual claims, and any tort claims including but not limited to, claims for fraud, negligent or intentional misrepresentation, invasion of privacy, loss of consortium, assault, battery, conspiracy, bad faith, negligent hiring or supervision, violation of a public policy, a covenant of good faith and fair dealing, interference with prospective economic advantage, tortious interference with contract, promissory estoppel, intentional or negligent infliction of emotional distress, intentional or negligent acts of personal injury, and wrongful discharge. "
"To be effective, Executive understands that a revocation letter must be delivered to the Company by the close of business on the last day of the revocation period. Executive understands that if he chooses to revoke this General Release, Executive will lose the right to receive the success fee under the terms of the Consulting Agreement."
"that if Executive signs this Agreement prior to the expiration of the twenty- one (21) day review period, Executive hereby waives any rights that he may have for any remaining time available to him under any law to review this General Release. Executive confirms that he has freely and voluntarily chosen to accept the General Release at this time. "
" | (ii) | Endo shall reimburse Mr.De Silva for any reasonable and documented out of pocket travel and meal expenses incurred by Mr.De Silva in providing the Services, provided that they are consistent with Endos travel policy (as applicable to Mr.De Silva immediately prior to his Termination Date) and that appropriate proof of expenditure is provided; ---|---|--- "
"The Article entitled Covenant Not to Solicit, Not to Compete, Not to Disparage, to Cooperate in Litigation and Not to Cooperate with Non- Governmental Third Parties as set forth in Section11 of the Employment Agreement, is incorporated by reference herein (other than Section11(d) of the Employment Agreement which is superseded in its entirety by Section7 of this Agreement) and the twenty-four (24)month period set forth therein shall commence upon the Termination Date; provided, however, the definition of a Competing Business in Section11(b) of the Employment Agreement shall be revised to mean (i)any ---|---|--- "
" | (b) | Pursuant to Section1833(b) of the Defend Trade Secrets Act of 2016, Mr.De Silva acknowledges that he shall not have criminal or civil liability under any federal or State trade secret law for the disclosure of a trade secret that (i)is made (A)in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney and (B)solely for the purpose of reporting or investigating a suspected violation of law; or (ii)is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Nothing herein is intended to conflict with Section1833(b) of the Defend Trade Secrets Act of 2016 or create liability for disclosures of trade secrets that are expressly allowed by such Section. ---|---|--- "
" | employer of his. Mr.De Silva will not furnish information to or cooperate with any non-governmental entity (other than Endo) in connection with any proceeding or legal action involving Endo, its affiliates and their predecessors; provided, that, following the second anniversary of the Termination Date, such prohibition shall not extend to any such actions taken by Mr.De Silva on behalf of (A)Mr.De Silvas then current employer, (B)any entity with respect to which Mr.De Silva is then a member of the board of directors or managers, as applicable, or (C)any non-publicly traded entity with respect to which Mr.De Silva is a 5% or more equity owner (or an affiliate of any such entities referenced in clause (A), (B)or (C)). Nothing in this provision shall require Mr.De Silva to violate his obligation to comply with valid legal process. Mr.De Silva agrees that, in the event he is subpoenaed by any person or entity (including, but not limited to, any government agency) to give testimony (in a deposition, court proceeding or otherwise) which in any way relates to his employment by the Company, Mr.De Silva will, to the extent not legally prohibited from doing so, give prompt notice of such request to the Chief Legal Officer of the Company so that the Company may contest the right of the requesting person or entity to such disclosure before making such disclosure. ---|--- "
9. | Other Company Policies. Mr.De Silva agrees that he shall continue to be bound by and comply with the terms of Mr.De Silvas confidentiality obligations to Endo and any other policies of Endo and its affiliates that survive termination of employment and shall comply fully with such policies during the Consulting Period. ---|--- 
"Executive shall receive a lump cash severance payment in the gross amount of USD $5,000,000 in accordance with the provisions of Section 2.2 of the Executive Severance Agreement, payable within five business days after the Separation Date. The Company shall provide Executive with the related tax gross-up payment required under the provisions of Section 2.2 of the Executive Severance Agreement. "
"Executive shall receive all accrued but unpaid vacation and vested benefits accrued through the Separation Date in accordance with the terms of the applicable Company benefit plans in which Executive participates. In addition, as specified in Section 2.1 of the Executive Severance Agreement, the Company shall pay 100% of the medical premiums for Executive and his spouse for the same or reasonably equivalent medical coverage he had on the date of his termination for a period until Executive becomes eligible for medical insurance coverage at a new employer or until his own and his spouses death if Executive is not able to or did not secure employment where reasonably equivalent medical coverage he had on the date of his termination has been provided. "
"that if Executive signs this Agreement prior to the expiration of the twenty- one (21) day review period, Executive hereby waives any rights that he may have for any remaining time available to him under any law to review this General Release. Executive confirms that he has freely and voluntarily chosen to accept the General Release at this time. "
"that Executive understands that his right of revocation set forth in this Section applies only to the release of any ADEA Claims. If Executive elects to revoke this General Release for ADEA Claims, the Company will have the option to choose to enforce this General Release, excluding unwaived ADEA Claims. Executive acknowledges that this General Release fully complies with the requirements of 29 U.S.C. Section 626(f), and all other legal requirements necessary for its validity and enforceability. Such revocation of the release of any ADEA Claims shall not affect the validity of the General Release of any other claims. "
"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. Neither Releasees nor Executive has relied on any promise except those set forth in this Agreement. Notwithstanding the foregoing, nothing set forth herein shall limit or restrict any post- employment covenant or other obligation of Executive under the Employee Agreement Relating to Assignment of Invention and Non- Disclosure of Confidential Information previously entered into by Executive. "
"This Agreement is to be interpreted in accordance with its fair meaning and not strictly for or against Releasees or Executive. This Agreement will not be construed more strictly against one party than against the other merely by virtue of the fact that it may have been prepared by counsel for one of the parties, it being recognized that all parties have contributed substantially and materially to the preparation of this Agreement. "
"1.4 Affiliated Person shall mean, with respect to any Person, (a) in the case of any such Person which is a partnership, any partner in such partnership, (b)in the case of any such Person which is a limited liability company, any member of such company, (c)any other Person which is a Parent, a Subsidiary, or a Subsidiary of a Parent with respect to such Person or to one or more of the Persons referred to in the preceding clauses (a)and (b), (d)any other"
"1.36 Financial Officers Certificate shall mean, as to any Person, a certificate of the chief executive officer, chief financial officer or chief accounting officer (or such officers authorized designee) of such Person, duly authorized, accompanying the financial statements required to be delivered by such Person pursuant to Section17.2, in which such officer shall certify (a)that such statements have been properly prepared in accordance with GAAP and are true, correct and complete in all material respects and fairly present the consolidated financial condition of such Person at and as of the dates thereof and the results of its and their operations for the periods covered thereby, and (b)in the event that the certifying party is an officer of Tenant and the certificate is being given in such capacity, that no Event of Default has occurred and is continuing hereunder."
"(e) all machinery, equipment, furniture, furnishings, moveable walls or partitions, computers or trade fixtures or other personal property of any kind or description used or useful in Tenants business on or in the Leased Improvements, and located on or in the Leased Improvements, and all modifications, replacements, alterations and additions to such personal property, except items, if any, included within the category of Fixtures, but specifically excluding all items included within the category of Tenants Personal Property (collectively, the Leased Personal Property);"
"without the execution of any additional documents; it being understood and agreed, however, that Tenant and Landlord shall execute such documents and agreements as either party shall reasonably require to evidence the same. Notwithstanding the provisions of the foregoing sentence, if, subsequent to the giving of such Notice, an Event of Default shall occur, at Landlords option, the extension of this Agreement shall cease to take effect and this Agreement shall automatically terminate at the end of the Fixed Term or the Extended Term, as applicable, and Tenant shall have no further option to extend the Term of this Agreement."
"3.1 Rent. Tenant shall pay, in lawful money of the United States of America which shall be legal tender for the payment of public and private debts, without offset, abatement, demand or deduction (unless otherwise expressly provided in this Agreement), Minimum Rent and Additional Rent to Landlord and Additional Charges to the party to whom such Additional Charges are payable, during the Term. All payments to Landlord shall be made by wire transfer of immediately available federal funds or by other means acceptable to Landlord in its sole discretion. Rent for any partial calendar month shall be prorated on a per diem basis."
"(b) Allocation of Minimum Rent. Minimum Rent may be allocated and reallocated among the Properties comprising the Leased Property by agreement among Landlord and Tenant; provided, however that in no event shall the Minimum Rent allocated to any Property be less than the monthly amount payable by Landlord on account of any Facility Mortgage and/or ground or master lease with respect to such Property nor shall the aggregate amount of Minimum Rent allocated among the Properties exceed the total amount payable for the Leased Property."
"(b) Quarterly Installments. Installments of Additional Rent for each Lease Year during the Term, or portion thereof, shall be calculated and paid quarterly in arrears. Quarterly payments of Additional Rent for each Property shall be calculated based on Gross Revenues for such quarter during the preceding year and shall be due and payable and delivered to Landlord on the first Business Day of each calendar quarter, or portion thereof, thereafter occurring during the Term, together with an Officers Certificate setting forth the calculation of Additional Rent due and payable for such quarter."
"(e) Reimbursement for Additional Charges. If Tenant pays or causes to be paid property taxes or similar or other Additional Charges attributable to periods after the end of the Term, whether upon expiration or sooner termination of this Agreement (other than termination by reason of an Event of Default), Tenant may, within a reasonable time after the end of the Term, provide Notice to Landlord of its estimate of such amounts. Landlord shall promptly reimburse Tenant for all payments of such taxes and other similar Additional Charges that are attributable to any period after the Term of this Agreement."
"3.3 Net Lease. The Rent shall be absolutely net to Landlord so that this Agreement shall yield to Landlord the full amount of the installments or amounts of the Rent throughout the Term, subject to any other provisions of this Agreement which expressly provide otherwise, including those provisions for adjustment or abatement of such Rent."
"unlawful nuisance thereon or therein. Tenant shall not, and shall not permit any Person to, suffer nor permit any Property, or any portion thereof, to be used in such a manner as (a)may materially and adversely impair Landlords title thereto or to any portion thereof, or (b)may reasonably allow a claim or claims for adverse usage or adverse possession by the public, as such, or of implied dedication of such Property, or any portion thereof."
"4.4.2 Indemnification of Landlord. Tenant shall protect, indemnify and hold harmless Landlord and each Facility Mortgagee, their trustees, officers, agents, employees and beneficiaries, and any of their respective successors or assigns with respect to this Agreement (collectively, the Indemnitees and, individually, an Indemnitee) for, from and against any and all debts, liens, claims, causes of action, administrative orders or notices, costs, fines, penalties or expenses (including, without limitation, reasonable attorneys fees and expenses) imposed upon, incurred by or asserted against any Indemnitee resulting from, either directly or indirectly, the presence in, upon or under the soil or ground water of any Property or any properties surrounding such Property of any Hazardous Substances in violation of any Applicable Laws, except to the extent the same arise from the acts or omissions of Landlord or any other Indemnitee or during any period that Landlord or a Person designated by Landlord (other than Tenant) is in possession of such Property from and after the Commencement Date for such Property. Tenants duty herein includes, but is not limited to, costs associated with personal injury or property damage claims as a result of the presence prior to the expiration or sooner termination of the Term and the surrender of such Property to Landlord in accordance with the terms of this Agreement of Hazardous Substances in, upon or under the soil or ground water of such Property in violation of any Applicable Laws. Upon Notice from Landlord and any other of the Indemnitees, Tenant shall undertake the defense, at Tenants sole cost and expense, of any indemnification duties set forth herein, in which event, Tenant shall not be liable for payment of any duplicative attorneys fees incurred by any Indemnitee."
"5.1.3 Nonresponsibility of Landlord, Etc. All materialmen, contractors, artisans, mechanics and laborers and other persons contracting with Tenant with respect to the Leased Property, or any part thereof, are hereby charged with notice that liens on the Leased Property or on Landlords interest therein are expressly prohibited and that they must look solely to Tenant to secure payment for any work done or material furnished to Tenant or any Manager or for any other purpose during the term of this Agreement."
"9.3 FormSatisfactory, Etc. All insurance policies and endorsements required pursuant to this Article9 shall be fully paid for, nonassessable, and issued by reputable insurance companies authorized to do business in the State and having a general policy holders rating of no less than A in Bests latest rating guide. All property, business interruption, liability and flood insurance policies with respect to each Property shall include no deductible in excess of Two"
"9.4 No Separate Insurance; Self-Insurance. Tenant shall not take (or permit any Person to take) out separate insurance, concurrent in form or contributing in the event of loss with that required by this Article9, or increase the amount of any existing insurance by securing an additional policy or additional policies, unless all parties having an insurable interest in the subject matter of such insurance, including Landlord and all Facility Mortgagees, are included therein as additional insureds and the loss is payable under such insurance in the same manner as losses are payable under this Agreement. In the event Tenant shall take out any such separate insurance or increase any of the amounts of the then existing insurance, Tenant shall give Landlord prompt Notice thereof. Tenant shall not self-insure (or permit any Person to self-insure) with respect to any insurance required to be carried hereunder by Tenant."
"relating to any Property or portion thereof or Tenants Personal Property or such use, misuse, non-use, condition, management, maintenance, or repair thereof including, failure to perform obligations (other than Condemnation proceedings) to which Landlord is made a party, (c)any Impositions that are the obligations of Tenant to pay pursuant to the applicable provisions of this Agreement, and (d)any failure on the part of Tenant or anyone claiming under Tenant to perform or comply with any of the terms of this Agreement. Tenant, at its expense, shall contest, resist and defend any such claim, action or proceeding asserted or instituted against Landlord (and shall not be responsible for any duplicative attorneys fees incurred by Landlord) or may compromise or otherwise dispose of the same, with Landlords prior written consent (which consent may not be unreasonably withheld, delayed or conditioned). The obligations of Tenant under this Section9.5 are in addition to the obligations set forth in Section4.4 and shall survive the termination of this Agreement."
"10.2.4 Disbursement of Proceeds. In the event Tenant is required to restore any Property pursuant to Section10.2 and this Agreement is not terminated as to such Property pursuant to this Article10, Tenant shall commence (or cause to be commenced) promptly and continue diligently to perform (or cause to be performed) the repair and restoration of such Property (hereinafter called the Work), so as to restore (or cause to be restored) the applicable Property in material compliance with all Legal Requirements and so that such Property shall be, to the extent practicable, substantially equivalent in value and general utility to its general utility and value immediately prior to such damage or destruction. Subject to the terms hereof, Landlord shall advance the insurance proceeds and any additional amounts payable by Landlord pursuant to Section10.2.3 or otherwise deposited with Landlord to Tenant regularly during the repair and restoration period so as to permit payment for the cost of any such restoration and repair. Any such advances shall be made not more than monthly within ten (10)Business Days after Tenant submits to Landlord a written requisition and substantiation therefor on AIA Forms G702 and G703 (or on such other form or forms as may be reasonably acceptable to Landlord). Landlord may, at its option, condition advancement of such insurance proceeds and other amounts on (a)the absence of any Event of Default, (b)its approval of plans and specifications of an architect satisfactory to Landlord (which approval shall not be unreasonably withheld, delayed or conditioned), (c)general contractors estimates, (d)architects certificates, (e)conditional lien waivers of general contractors, if available, (f)evidence of approval by all governmental authorities and other regulatory bodies whose approval is required, (g), if Tenant has elected to advance deficiency funds pursuant to Section10.2.3, Tenant depositing the amount"
"10.3 Damage Near End of Term. Notwithstanding any provisions of Section10.1 or 10.2 to the contrary, if damage to or destruction of any Property occurs during the last twelve (12) months of the Term and if such damage or destruction cannot reasonably be expected to be fully repaired and restored prior to the date that is six (6)months prior to the end of the Term, the provisions of Section10.2.1 shall apply as if such Property had been totally or partially destroyed and the Facility thereon rendered Unsuitable for its Permitted Use."
"11.1 Total Condemnation, Etc. If either (a)the whole of any Property shall be taken by Condemnation or (b)a Condemnation of less than the whole of any Property renders any Property Unsuitable for Its Permitted Use, this Agreement shall terminate with respect to such Property, and Tenant and Landlord shall seek the Award for their interests in the applicable Property as provided in Section11.5."
"11.2 Partial Condemnation. In the event of a Condemnation of less than the whole of any Property such that such Property is still suitable for its Permitted Use, Tenant shall, to the extent of the Award and any additional amounts disbursed by Landlord as hereinafter provided, commence (or cause to be commenced) promptly and continue diligently to restore (or cause to be restored) the untaken portion of the applicable Leased Improvements so that such Leased Improvements shall constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as such Leased Improvements existing immediately prior to such Condemnation, in material compliance with all Legal Requirements, subject to the provisions of this Section11.2. If the cost of the repair or restoration of the affected Property exceeds the amount of the Award, Tenant shall give Landlord Notice thereof which notice shall set forth in reasonable detail the nature of such deficiency and whether Tenant shall pay and assume the amount of such deficiency (Tenant having no obligation to do so, except that if Tenant shall elect to make such funds available, the same shall become an irrevocable obligation of Tenant pursuant to this Agreement). In the event Tenant shall elect not to pay and assume the amount of such deficiency, Landlord shall have the right (but not the obligation), exercisable at Landlords sole election by Notice to Tenant given within sixty (60) days after Tenants Notice of the deficiency, to elect to make available for application to the cost of repair or restoration the amount of such deficiency; provided, however, in such event, upon any disbursement by Landlord thereof, the Minimum Rent shall be adjusted as provided in Section3.1.1(c). In the event that neither Landlord nor Tenant shall elect to make such deficiency available for restoration, either Landlord or Tenant may terminate this Agreement with respect to the affected Property and the entire Award shall be allocated as set forth in Section11.5."
"If this Agreement is assigned or if the Leased Property, or any portion thereof, is sublet (or occupied by anybody other than Tenant or any Manager, their respective employees or residents or patients of Tenant), Landlord may collect the rents from such assignee, subtenant or occupant, as the case may be, and apply the net amount collected to the Rent herein reserved, but no such collection shall be deemed a waiver of the provisions set forth in the first paragraph of this Section16.1, the acceptance by Landlord of such assignee, subtenant or occupant, as the case may be, as a tenant, or a release of Tenant from the future performance by Tenant of its covenants, agreements or obligations contained in this Agreement."
"(b) Landlord receives an Officers Certificate from Tenant stating (i)that such grant, modification or abandonment is not detrimental to the proper conduct of business on such Property, (ii)the consideration, if any, being paid for such grant, modification or abandonment (which consideration shall be paid by Tenant), (iii)that such grant, modification or abandonment does not impair the use or value of such Property for the"
"22.8 Payment. Any monetary award shall be made and payable in U.S. dollars free of any tax, deduction or offset. Each party against which the Arbitration Award assesses a monetary obligation shall pay that obligation on or before the thirtieth (30th) day following the date of the Arbitration Award or such other date as the Arbitration Award may provide."
"23.6 No Merger of Title. It is expressly acknowledged and agreed that it is the intent of the parties that there shall be no merger of this Agreement or of the leasehold estate created hereby by reason of the fact that the same Person may acquire, own or hold, directly or indirectly this Agreement or the leasehold estate created hereby and the fee estate or ground landlords interest in the Leased Property."
"All that certain piece, parcel or tract of land, with the improvements thereon, situate, lying and being in the Town of Mt. Pleasant, County of Charleston, State of South Carolina, shown and designated as Parcel B-2, 3.1366 Acres as shown on that certain plat entitled Final Plat showing Residual Land known as Queensborough owned by East Bay Company, Limited, and Lands of Others subdivided from Queensborough, Town of Mount Pleasant, Charleston County, SC dated March9,1992 and revised June29,1992, and recorded in Plat Book CH, Page141, on June30, 1992, in the RMC Office for Charleston County. Said tract of land having such size, shape, dimensions, buttings and boundings as will appear on said plat, reference to which is craved for a more complete and full description."
"TOGETHER WITH the easement rights and subject to rights of others and the burdens created by a perpetual, nonexclusive, free and uninterrupted right-of- way, privilege and easement (the Easement) recorded in Book D311, Page425, Charlestown County Registry, to locate, place lay and maintain water and sewer mains, pipes, laterals and appurtenances over, through, along and under the certain property, located in the Town of Mount Pleasant, South Carolina as depicted on that certain plat of survey dated January26, 1988, prepared by ARC Surveying& Company, and entitled Mount Pleasant, ALTA Survey of Parcel B, Charleston County, South Carolina as recorded in Plat Book EC, at Page543, Charleston County records and more particularly described as follows:"
"TOGETHER WITH, (i)a perpetual easement for the purpose of installing and maintaining a ten-inch sewer line, together with the right of ingress and egress thereto, as granted in that certain Easement from Henry County, Tennessee, to the City of Paris, Tennessee, Board of Public Utilities and Donald L. Hayes and wife, Gwendolyn W. Hayes, and James H. Wiseman and wife, Doris Wiseman, recorded in Deed Book 180, page390, in the Registers Office for Henry County, Tennessee, and (ii)a perpetual easement appurtenant to the Premises for the installation, construction, maintenance and repair of a sewer truck line, together with the right of ingress and egress thereto, across that portion of the remaining property of the Grantors in Deed Book 235, Page242, as corrected in Deed Book 246, Page661, both in the Registers Office for Henry County, Tennessee, more particularly described as follows:"
"COMMENCING at an existing sanitary sewer manhole located on property conveyed to Henry County in Deed Book 56, Page294, in the Registers Office for Henry County, Tennessee; thence with a new 8 sanitary sewer line, North 72 degrees 14 minutes 30 seconds East, 159.36 feet to a new manhole on the west line of Swayne, et al, in Deed Book 235, Page242, as corrected in Deed Book 246, Page66, both in the Registers Office for Henry County, Tennessee; said manhole is located South 01 degree 41 minutes 15 seconds East, 294.72 feet from an iron pin found in the northwest corner of Swayne, et al, and being the TRUE POINT OF BEGINNING; runs thence;"
"is specifically agreeing to the terms of the release and waiver contained in this Agreement because the Company has agreed to pay Employee the Settlement Amount in consideration for Employees agreement to accept it in full settlement of all possible claims Employee might have or ever had, and because of Employees waiver of rights and entitlements under the Employment Agreement; ---|---|--- "
"Employee represents and warrants that Employee (i) has not previously filed, and to the maximum extent permitted by law agrees that Employee will not file, a complaint, charge, or lawsuit against any member of the Group regarding any of the claims released herein, (ii) has not assigned or conveyed to any other person or entity any part of or interest in any of the claims released herein, and will not assist or otherwise participate in any claim, arbitration, suit, action, investigation or other proceeding of any claim released herein; or accept any monetary or other recovery in connection therewith. This paragraph shall not apply, however, to a claim of age discrimination under ADEA or to any non-waivable right to file a charge with the United States Equal Employment Opportunity Commission (the EEOC) or any other administrative agency; provided, however, that if the EEOC, or other administrative agency, were to pursue any claims relating to Employees employment with the Company, Employee agree that Employee shall not be entitled to recover any monetary damages or any other remedies or benefits as a result and that this Agreement and the payments and benefits (other than the Accrued Obligations) due Employee pursuant to this Agreement will control as the exclusive remedy and full settlement of all such claims by Employee. ---|---|--- "
"The provisions of this Agreement shall be binding upon Employees heirs, executors, administrators, legal personal representatives, and assigns. If any provision of this Agreement shall be held by any court of competent jurisdiction to be illegal, void, or unenforceable, such provision shall be of no force and effect. The illegality or unenforceability of such provision, however, shall have no effect upon and shall not impair the enforceability of any other provision of this Agreement. ---|---|--- "
"The Executive must provide written notice to the Company within 90 days of the initial existence of a condition set forth in clauses (i) - (iii) and the Company shall have 30 days after receipt of any such notice to remedy the condition. If the Company timely remedies such condition, such condition shall not constitute Good Reason. The Executive may not terminate the Executives employment hereunder for Good Reason more than six months after the initial existence of one (or more) of the conditions set forth in clauses (i) - (iii) which constitutes Good Reason."
"Term of Employment Unless sooner terminated pursuant to Article IV, the term of the Executives employment under this Agreement (the Term) shall commence on the Effective Date and shall continue until the second anniversary of the Effective Date (the Expiration Date); provided, however, that on each date during the Term, the Expiration Date shall be reset to the date two years after the date thereof, except that either party may terminate this Agreement by giving written notice that such daily extensions of the Term shall be discontinued in which case the Expiration Date shall be the date two years after the delivery of such notice."
"(b) Upon execution of this Agreement, the Executive will be granted an award or awards under the American Capital Mortgage Management, LLC Performance Incentive Plan  MTGE (the MTGE PIP) valued at $100,000 in the aggregate (the MTGE PIP Awards). The MTGE PIP Awards will generally vest annually and equally over five years from the date of grant, subject to the Executives continued employment with the Company; provided that such MTGE PIP Awards shall provide for continued vesting of unvested award tranches after the Executives termination of employment by the Company without Cause or by the Executive with Good Reason on the earlier of the originally scheduled vesting date for such award tranche or the eighteen (18) month anniversary of the Termination Date, subject to the Executives continued compliance with his obligations under Article V of this Agreement. Each vesting tranche of the MTGE PIP Awards shall be considered a separate payment for purposes of Section 409A of the Code. The MTGE PIP Awards will also be subject to the terms and conditions of the MTGE PIP and any associated award documentation. At the Board of Managers sole discretion, up to 25% of the initial value of the MTGE PIP Awards shall be notionally invested in shares of common stock of ACAS."
"(c) The Executive will also be granted, subject to his continued employment on the date of grant, future awards under the AGNC PIP and MTGE PIP and any similar plans maintained by the Company relating to any other Company Managed Funds. The annual value of such awards would equal .03% of the prior year-end combined equity value of the Company Managed Funds up to $10 billion, .02% of the prior year-end combined equity value of the Company Managed Funds between $10 billion and $15 billion, and .01% of the prior year-end combined equity value of the Company Managed Funds above $15 billion. The amount granted under each of the AGNC PIP and MTGE PIP and any similar plans maintained by the Company relating to any other Company Managed Funds will be proportional to the year-end equity value of each such Company Managed Fund. Any such future awards will be subject to the terms and conditions of the AGNC PIP, MTGE PIP and any such similar plans and forms of agreement attached hereto as Exhibits 3.3(c)-AGNC and 3.3(c)-MTGE or similar forms of agreement under any such similar plans. At the Board of Managers sole discretion, up to 25% of the initial value of any such future awards shall be notionally invested in shares of common stock of ACAS."
"(iii) The Executive shall be entitled to receive an additional severance payment in an amount equal to the product of (A) 1.5, and (B) his Target Incentive Payment Amount. This additional severance payment shall be paid in a single lump sum between January 1 and March 15 of the year following the calendar year in which the Termination Date occurs."
"Fund (a Restricted Business). Notwithstanding the foregoing, the Executive shall not be precluded from purchasing or owning, directly or beneficially, as a passive investment, two percent (2%) or less of any class of publicly traded securities if he does not actively participate in or control, directly or indirectly, any investment or other decisions with respect to such entity."
"(b) If, within 10 days after such meeting, the parties have not succeeded in negotiating a resolution of the Dispute, the parties agree to submit the Dispute to mediation in accordance with the Commercial Mediation Rules of the American Arbitration Association except that Disputes with regard to the existence of a Disability shall be resolved in accordance with the definition of the term Disability above."
"Section 409A of the Code This Agreement is intended to comply with the requirements of Section 409A of the Code (including the exceptions thereto), to the extent applicable, and the Company shall administer and interpret this Agreement in accordance with such requirements. Notwithstanding any other provision hereof, if any provision of this Agreement conflicts with the requirements of Section 409A of the Code, the requirements of Section 409A of the Code shall supersede any such provision."
"Any Target Incentive Payment to which the Executive becomes entitled will be paid no later than the 75th day immediately following the last day of the period to which such Target Incentive Payment relates. Except as set forth in Article 4 of the Agreement, the Executive must be employed on the Target Incentive Payment date to be entitled to payment."
"Company Price to Book as of any date means the ratio of (a) the sum of Fair Market Values of a share of common stock of each Publicly Traded Company Managed Fund, over (b) the sum of the net asset values of all Publicly Traded Company Managed Funds as of the most recent quarter end as determined by the reasonable application of such reasonable method as may be chosen by the Board of Managers in good faith. When determined in connection with a payment based on performance in a calendar quarter, the Company Price to Book shall be calculated as of the last business day of such quarter, and when determined in connection with a payment or award based on performance in a calendar year, the Company Price to Book shall be calculated as of the last business day of such year."
"value of a share of the common stock of such member of the Peer Group from the last day of the prior period to the last day of the relevant period, and (ii) the sum of any dividends declared with respect to a share of common stock of such member of the Peer Group during the relevant period, over (b) the sum of the net asset values of a share of common stock of such member of the Peer Group on the last day of the prior period."
"Peer Member Price to Book as of any date means, for any entity that is a member of the Peer Group, the ratio of (a) the closing price for a share of common stock of such entity, over (b) the reported net asset value per share of common stock for such entity for the most recent quarter end. When determined in connection with a payment based on performance in a calendar quarter, Peer Member Price to Book shall be calculated as of the last business day of such quarter, and when determined in connection with a payment or award based on performance in a calendar year, Peer Member Price to Book shall be calculated as of the last business day of such year."
"Peer Member Total Stock Return for any period means, for any entity that is a member of the Peer Group, the ratio of (a) the sum of (i) the positive or negative change in Fair Market Value of a share of the common stock of such entity from the last day of the prior period to the last day of the relevant period, and (ii) any dividends declared with respect to a share of common stock of such entity during the relevant period, over (b) the Fair Market Value of a share of the common stock of such entity on the last day of the prior period."
"We are pleased to inform you that on _________, _____, American Capital Mortgage Management, LLC (the Company) granted you an Incentive Award (the Award) under the terms of the American Capital Mortgage Management, LLC Performance Incentive Plan  AGNC (the Plan) in the amount of $____________, subject to your acceptance of and agreement to the terms and conditions described in this Memorandum and Acceptance Agreement (this Agreement). As your Award vests, it will be paid to you. You may not elect to defer payment of this Award. Capitalized terms used in this Agreement that are not otherwise defined herein shall have the meanings ascribed to such terms in the Plan."
"For purposes of this Agreement, a Qualifying Separation from Service means your Separation from Service by the Company other than for Misconduct (as defined in your Employment Agreement with the Company dated as of March ___, 2012 (the Employment Agreement)) or by you with Good Reason (as defined in the Employment Agreement)."
"Please note that the Plan and this Agreement are intended to comply, and shall be interpreted in a manner consistent, with the requirements of Section 409A of the Code and the regulations and other regulatory guidance thereunder. In no event will the Company or any affiliate be liable for any tax, interest or penalties that may be imposed by Section 409A of the Code or any damages for failing to comply with Section 409A of the Code. In addition, please note that the Company shall comply with six-month delay provisions of Section 409A(a)(2)(B) of the Code to the extent applicable."
"Your Award consists of two (2) installments (each, an Installment), the first Installment equal to twenty percent (20%) of the Total Amount and the second Installment equal to eighty percent (80%) of the Total Amount. Each Installment shall be considered a separate payment for purposes of Section 409A of the Code. Your Installments shall vest on the following vesting schedule (notwithstanding Section 6.3(b) of the Plan), subject to the conditions set forth below and in the Plan:"
"Please note that the Plan and this Agreement are intended to comply, and shall be interpreted in a manner consistent, with the requirements of Section 409A of the Code and the regulations and other regulatory guidance thereunder. In no event will the Company or any affiliate be liable for any tax, interest or penalties that may be imposed by Section 409A of the Code or any damages for failing to comply with Section 409A of the Code. In addition, please note that the Company shall comply with six-month delay provisions of Section 409A(a)(2)(B) of the Code to the extent applicable."
"(a) The Executive, on his own behalf and on behalf of his heirs, representatives and assigns, hereby waives, releases, and forever and irrevocably discharges the Company and the Company Managed Funds (as defined in the Employment Agreement), and their agents, attorneys, officers, directors, employees, successors and assigns (collectively, the Company Released Parties) from any and all obligations, debts, demands, claims and liabilities of every kind and nature, either in law or in equity, that the Executive may now have, may in the future have or may ever have had, against the Company Released Parties arising in any manner from or in any manner related, directly or indirectly, to the Executives service or employment as a director, manager, officer and/or an employee of the Company including, without limitation, the circumstances relating to the termination thereof, except for such obligations as shall specifically survive the termination of the Executives employment under the terms of the Employment Agreement."
"2\. Miscellaneous. This Agreement constitutes the entire agreement between the parties hereto with regard to the subject matter hereof and supersedes all prior negotiations, representations and agreements, either written or oral, between them except for the Surviving Agreements. There are no conditions, agreements, or representations between the parties except those expressed herein. This Agreement may be altered, modified, amended, or repealed only by a duly executed written instrument signed by the parties hereto. This Agreement shall be governed by the law of the State of Maryland, without giving effect to the conflicts of laws provisions thereof. Each party binds himself or itself and his or its heirs, successors, legal representatives and assigns in respect to all covenants and agreements contained herein. Except as specifically contemplated herein, nothing herein shall be construed as giving any right or benefit hereunder to anyone other than the parties hereto."
"D. Executive acknowledges and agrees that if he breaches any material provision of this Agreement in any respect, other than any breach that shall have been inadvertent and shall have resulted in or is likely to result in a de minimis effect (and has not cured such breach within 30 days of written notice from the Company) or is terminated for Cause pursuant to Section 3(C), he shall forfeit all Severance Benefits received or to be received under this Agreement. If Executive breaches any material provision of this Agreement in any material respect (which breach is not cured as described above) or is terminated for Cause pursuant to Section 3(C), the Company shall notify Executive of the action constituting the breach or Cause writing (Notice of Breach), and upon receipt of a Notice of Breach, Executive shall: (i) return to the Company all sums of cash actually received as Severance Benefits; (ii) reimburse the Company for the cost of all medical, dental, vision and outplacement assistance benefits received by Executive as Severance Benefits; and (iii) pay the Company the then current fair market value of all equity compensation received by Executive as Severance Benefits. All such sums shall be paid by Executive to the Company no later than thirty (30) days after the date of the Notice of Breach."
"E. In consideration for Executives release hereinabove of the Released Parties, the Company (in its own capacity and on behalf of the other Released Parties) hereby discharges and generally releases Executive from any action or actions, cause or causes of action, suits, debts, contracts, agreements, promises, liability, claims, demands, damages, payments, compensation, loss, cost, or expense, of any nature whatsoever related to any matter, cause, or thing that occurs, accrues, or otherwise exists on or before the date of execution of this Agreement that is related to Executives employment with the Company or the termination of his employment from the Company but only to the extent any such action or actions, cause or causes of action, suits, debts, contracts, agreements, promises, liability, claims, demands, damages, payments, compensation, loss, cost, or expense are based on facts, acts, omissions, or events actually known as of the Resignation Date to the Companys General Counsel or its Board of Directors."
"D. In further consideration of the Separation Benefits, Executive agrees to (i) provide such reasonable transition assistance (Transition Assistance) to the Company or an affiliate as may be requested from time to time by the Company during normal business hours, subject to Executives reasonable availability at the time the assistance is requested; and (ii) fully and completely cooperate (Cooperation Obligation) with the Company and its affiliates at its or their reasonable request during normal business hours to assist with existing or future investigations, proceedings, litigation, examinations, or other fact-finding or adjudicative proceedings, public or private, involving any of the Released Parties. The Cooperation Obligation"
"includes Executive meeting with the representatives of the Company, its affiliates, or the other Released Parties at reasonable times upon its or their reasonable request, and providing information and, where applicable, testimony, that is truthful, accurate, and complete, according to information known to Executive. The Company will reimburse Executive, within 15 days after Executives submission of substantiating documentation to the Company, for reasonable out-of-pocket travel, lodging, and other incidental expenses (but not attorneys fees) he incurs in providing the Transition Assistance or fulfilling the Cooperation Obligation, provided the expenses have been approved in advance by the Company, and Executive submits such documentation within 30 days after the expense is incurred. Executive shall not be required to cooperate against his own legal interests or the legal interests of a future employer in connection with the Cooperation Obligation."
"A.Choice of Law/Venue. This Agreement (including any claim or controversy arising out of or relating to this Agreement) shall be governed by the Law of the State of Texas, without regard to conflict of Law principles that would result in the application of any Law other than the Law of the State of Texas, it being stipulated by the Parties that Texas has a compelling state interest in the subject matter of this Agreement and that Executive has had or will continue to have regular contact with Texas in the performance of this Agreement. The Parties also agree that venue of any action to enforce the provisions of this Agreement, or any document executed in connection herewith, shall be in the state district courts in Dallas County, Texas."
"B. Continued Benefits Offset Payment. $84,834.24 in lump sum, which amount the parties agree is approximately the same as the aggregate cost (based on rates in effect on September 14, 2016) of continued coverage under the medical, dental, and vision coverage plans sponsored by Employer under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and otherwise for 24 months."
"D. Company-Issued Computers, etc. Executive may retain all computers, printers, tablets, PDAs, cellphones and similar electronic equipment issued by the Company to Employee in the course of Executives employment, which equipment shall, after the Payment Date, be the exclusive property of Executive; provided that Executive has permitted the Company to inspect such equipment and, if necessary, to remove any Recipient Materials or Proprietary Information (as those terms are defined in the Employment Agreement) contained in any such equipment. Executive shall also be permitted to retain his contacts, calendar and personal correspondence and all of his compensation information and documents necessary for tax return preparation purposes."
"solicitation of proxies or consents by or on behalf of a Person other than the Board, (iii)a merger 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))."
 | 3. | AMENDMENTS; WAIVERS; REMEDIES ---|---|--- This Agreement may not be amended or waived except by a writing signed by Executive and a duly authorized representative of each of the Company and HoldCo other than Executive. Failure to exercise any right under this Agreement shall not constitute a waiver of such right. Any waiver of any breach of this Agreement shall not operate as a waiver of any subsequent breaches. All rights or remedies specified for a party herein shall be cumulative and in addition to all other rights and remedies of the party hereunder or under applicable law.
" | 6. | TAXES ---|---|--- All amounts paid under this Agreement shall be paid less all applicable state and federal tax withholdings and any other withholdings required by any applicable jurisdiction or authorized by Executive. To the extent applicable, it is intended that this Agreement and any payment made hereunder will comply with the requirements of (or an exemption or exclusion from) Section409A of the Code, and any related regulations or other guidance promulgated with respect to such section by the U.S. Department of the Treasury or the Internal Revenue Service (Section 409A), and any ambiguities in this Agreement will be interpreted accordingly. Any provision of this Agreement that would cause this Agreement to fail to satisfy Section409A will have no force and effect until amended to comply therewith (which amendment may be retroactive to the extent permitted by Section409A). Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section409A, Executive will not be considered to have terminated employment with the Company for purposes of this Agreement and no payments will be due to Executive under this Agreement which are payable upon Executives termination of employment until Executive would be considered to have incurred a separation from service from the Company within the meaning of Section409A. To the extent required in order to avoid accelerated taxation and/or tax penalties under Section409A (as determined by the Company and Executive), amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to this"
" | 10. | AUTHORITY ---|---|--- Each party represents and warrants that such party has the right, power and authority to enter into and execute this Agreement and to perform and discharge all of the obligations hereunder; and that this Agreement constitutes the valid and legally binding agreement and obligation of such party and is enforceable in accordance with its terms."
"WHEREAS, the Company, HoldCo and Executive are parties to that certain Severance Agreement, dated [], 2016 (the Severance Agreement), pursuant to which Executive is eligible to receive severance benefits, contingent upon certain conditions set forth in the Severance Agreement. All capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them in the Severance Agreement;"
"3\. In exchange for the separation benefits described above, Executive completely releases the Company and HoldCo, and each of its and their affiliated, related, parent or subsidiary entities, and each of its and their present and former officers, directors, employees, shareholders, members and agents (the Released Parties) from any and all claims of any kind, known and unknown, which Executive may now have or have ever had against any of them. This release includes all claims arising from Executives employment with the Company and/or HoldCo and its and their termination, including claims under the California Fair Employment and Housing Act, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, as amended, or any other claims for violation of any federal, state, or municipal statutes, any and all claims in contract or tort or premised on any other legal theory and any and all claims for attorneys fees and costs; provided, however, that nothing in this Release Agreement shall (a)waive any rights or claims of Executive that arise after this Release Agreement becomes effective, (b)impair or preclude Executives right to take action to enforce"
"the terms of this Release Agreement, (c)impair Executives vested rights under any tax-qualified retirement plan maintained by the Company, HoldCo and its and their affiliates, or (d)impair Executives rights to indemnification under any indemnification agreement(s) between Executive and the Company or HoldCo, as applicable, any rights to and claims for indemnification or as an insured under any directors and officers liability insurance policy in connection with Executives service as an officer, employee or agent of the Company or HoldCo, as applicable, or any of its and their subsidiaries and affiliates, under their respective certificates of incorporation, by-laws or operating agreements, or otherwise as provided by law. Executive agrees not to file, cause to be filed, or otherwise pursue any claims released by this paragraph. Notwithstanding the foregoing, Executive acknowledges and understands that Executive is not waiving and is not being required to waive any right that cannot be waived by law, including the right to file a charge or participate in an administrative investigation or proceeding; provided, however, that Executive hereby disclaims and waives any right to share or participate in any monetary award resulting from the prosecution of such charge or investigation."
"Executive expressly waives and releases any right to benefits he may have under California Civil Code 1542 to the fullest extent he may do so lawfully. Executive further acknowledges that he may later discover facts different from, or in addition to, those facts now known to him or believed by him to be true with respect to any or all of the matters covered by this Release Agreement, and he agrees this Release Agreement nevertheless shall remain in full and complete force and effect."
"8\. This Release Agreement and the Severance Agreement contain all of the parties agreements and understandings with respect to the matters herein and fully supersede any prior agreements or understandings that the parties may have had regarding such matters, except for the Proprietary Information Agreement and the Employment Agreement. This Release Agreement shall be governed by California law and may be amended only in a written document signed by Executive and duly authorized representative of each of the Company and HoldCo, other than Executive. If any term in this Release Agreement is unenforceable, the remainder of the Release Agreement will remain enforceable."
"1.Severance Pay. Employer shall pay Severance Pay in the gross amount of Eighty Two Thousand Five Hundred Dollars ($82,500.00) less applicable taxes and other lawful withholdings, which shall be paid on the Employers first payroll date that is at least five (5) business days following the Effective Date of this Agreement (as defined in Paragraph 12 below), subject to the Employers timely receipt of this Agreement executed by Employee and the expiration of the seven (7)-day period within which Employee may revoke Employees acceptance of this Agreement as explained in Paragraph 12 below, and provided Employee has not exercised such right of revocation."
"2.Consideration. Employee acknowledges that the Severance Pay set forth herein exceeds any amount to which Employee would otherwise be entitled upon termination of employment without providing a release of claims. Irrespective of whether Employee signs this Agreement, Employee will be paid, subject to applicable taxes and other lawful withholdings, for any unpaid salary and accrued, unused paid time off earned through the Termination Date, and will be reimbursed for authorized business expenses submitted in accordance with Company policies before the Termination Date; the foregoing amounts will be paid on the first payroll date following the Termination Date."
"19.Representation and Warranty of Understanding. By signing below, Employee represents and warrants that Employee: (a) has been informed that Employee may only sign this Agreement on or after the Termination Date, and that any signature before that date will be null and void; (b) has been informed that Employee has at least twenty-one (21) days from the date that Employee receives this Agreement, and at least seven (7) days after the Termination Date, to consider whether to sign this Agreement, but may sign it before the end of those twenty-one day and seven day periods; (c) has carefully read and understands the terms of this Agreement; (d) is entering into the Agreement knowingly, voluntarily and of Employees own free will; (e) understands its terms and significance and intends to abide by its provisions without exception; (f) has not made any false statements or representations in connection with this Agreement; and (g) has not transferred or assigned to any person or entity not a party to this Agreement any claim or right released hereunder, and Employee agrees to indemnify the Employer and hold it harmless against any claim (including claims for attorneys fees or costs actually incurred, regardless of whether litigation has commenced) based on or arising out of any alleged assignment or transfer of a claim by Employee."
"(4) Bridger and Jamex are party to that certain Transportation and Logistics Agreement dated June23, 2015 (as supplemented by that certain Letter Agreement dated January13, 2016 and amended on February22, 2016, theTLA) whereby Bridger or its subsidiary or contractor provides certain crude oil logistics services to Jamex, and in return, Jamex from time to time makes certain cash payments to Bridger;"
"Claim means any and all accounts, agreements, avoidance actions, bills, bonds, causes, causes of action, charges, claims, complaints, contracts, controversies, costs, counterclaims, damages, debts, demands, equitable proceedings, executions, expenses, legal proceedings, liabilities, losses, matters, objections, obligations, orders, proceedings, reckonings, remedies, rights, setoffs, suits, sums of money, of any kind, at common Law, statutory or otherwise, whether known or unknown, whether matured or unmatured, whether absolute or contingent, whether asserted directly or derivatively by or on behalf of any Releasor(s)of the Person asserting the Claim, whether suspected or unsuspected, whether liquidated or unliquidated (including breach of contract, breach of any special relationship, breach of duty of care, breach of duty of loyalty, breach of fiduciary duty, concealment, conflicts of interest, conspiracy, control, course of conduct or dealing, debt recharacterization, deceit, deceptive trade practices, deepening insolvency, defamation, disclosure, duress, economic duress, equitable subordination, fraud, fraudulent conveyance, fraudulent transfer, gross negligence, insolvency Law violations, interference with contractual and business relationships, misrepresentation, misuse of insider information, negligence, breach of obligation of fair dealing, breach of obligation of good faith and fair dealing, breach of obligation of good faith, preference, secrecy, securities and antitrust Laws violations, substantive consolidation, tying arrangements, unconscionability, usury, violations of statutes and regulations of Governmental Entities, instrumentalities and agencies, wrongful recoupment or setoff, or any tort, whether common Law, statutory or in equity, and including as a result of, or in relation to, any negligence of any Party)."
"Jamex Entities WCF Guaranty means that certain Guaranty and Pledge Agreement (Secured Revolving Promissory Note), dated as of the Effective Date, executed and delivered by the Guarantors party thereto in favor of Bridger, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms."
"Transfer means any direct or indirect sale, transfer, assignment, pledge, mortgage, exchange, hypothecation, gift, grant of a security interest or other direct or indirect disposition or encumbrance (whether with or without consideration, whether voluntarily or involuntarily or by operation of Law) or the acts thereof, including derivative or similar transactions or arrangements whereby a portion or all of the"
"(a) Immediately prior to the execution and delivery of this Agreement, (i)Jamex Unitholder owned 4,771,447 Common Units, all of which were pledged as collateral to secure Jamex Unitholders obligations under the Margin Loan Agreement among Jamex Unitholder, as borrower, Morgan Stanley Bank, N.A., as lender (Morgan Stanley), and Morgan Stanley& Co. LLC, as calculation agent, dated as of November20, 2015 (theMS Loan Agreement), all of which were represented by book-entry account number [omitted] held at Morgan Stanley in a collateral account under the MS Loan Agreement (theCollateral Account) and (ii)the Collateral Account also held $18,139,353.90 in cash (theCash Collateral) to secure Jamex Unitholders obligations under the MS Loan Agreement."
"(d) Concurrent herewith, Jamex has delivered to Morgan Stanley $8,186,709.57 cash in immediately available funds (the Jamex Payment) and FGP has delivered to Morgan Stanley $16,851,185.38 cash in immediately available funds (theFGP Payment), which together with the application by Morgan Stanley of the Cash Collateral constitutes receipt by Morgan Stanley of the Payoff Amount."
"(d) Each FGP Party and each Jamex Party hereby irrevocably waives and covenants and agrees to forbear and refrain from, directly or indirectly, asserting any Claim, or commencing, instituting or causing to be commenced or instituted, any legal, arbitral or equitable proceeding of any kind (whether actual, asserted or prospective) against their respective Releasees based upon any matter released or purported to be released pursuant to this Section4."
"5. Certain Securities Law Matters; Non-Public Information. On or before September2,2016, FGP shall cause a Current Report on Form8-K (the Form8-K) to be timely filed, as applicable, with respect to the execution and delivery of this Agreement. In furtherance of the foregoing, (a)FGP shall furnish to Jamex as far in advance as reasonably practicable before filing the Form8-K a substantially complete draft of such Form8-K for the purpose of providing Jamex the reasonable opportunity to review, comment on, supplement or object to any portion of such draft and (b)FGP shall reasonably and in good faith consider and incorporate any reasonable comments timely provided by Jamex relating to suchdraft."
"(a) Each FGP Party is a limited partnership or limited liability company, as applicable, duly formed, validly existing, and in good standing under the Laws of the state of its formation. Each FGP Party has all requisite power and authority to execute, deliver, and perform this Agreement and each other Transaction Agreement to which it is party. All consents, approvals, authorizations and orders necessary for the execution, delivery, and performance by each FGP Party of this Agreement, and each other Transaction Agreement to which it is party, have been obtained."
"(f) FGP acknowledges and agrees that it is aware the Jamex Parties may be in possession of material, non-public information that may affect the value of the Common Units and it may not be privy to such information (if any), and it hereby irrevocably and unconditionally waives and releases the Jamex Parties and their affiliates and their respective officers, directors, members, managers, equityholders, agent, attorneys and employees from all claims that it may have (whether for damages, rescission or any other relief) based on the Jamex Parties possession or non-disclosure of any such non-public information."
"(g) The Jamex Parties acknowledge and agree that they are aware that FGP may be in possession of material, non-public information that may affect the value of the Common Units and they may not be privy to such information (if any), and they hereby irrevocably and unconditionally waive and release FGP and its affiliates and their respective officers, directors, members, managers, equityholders, agent, attorneys and employees from all claims that they may have (whether for damages, rescission or any other relief) based on FGPs possession or non-disclosure of any such non-public information."
"(b) 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 in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, and, for purposes of such jurisdiction, such provision or portion thereof will be struck from the remainder of this Agreement, which will remain in full force and effect. This Agreement will be reformed, construed and enforced in such jurisdiction so as to best give effect to the intent of the Parties under this Agreement."
"(l) Confidentiality. Except to the extent disclosed in the Form8-K in accordance with Section5 or as otherwise required to be disclosed by applicable Law, without the priorconsent of the other Party, the existence of this Agreement and the terms of this Agreement shall remain confidential and shall not be disclosed to anyone by the Parties, agents, relatedparties cited herein or their representatives, other than to the Parties attorneys or tax or financial advisors for the purpose of seeking professional advice from such attorneys and tax or financial advisors."
"BEFORE ME, the undersigned authority, on this day personally appeared James Ballengee, 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 individual capacity to be bound by all obligations, terms and conditions expressed therein."
"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."
 Jamex Parent or any Jamex Parent Subsidiary may from time to time enter into one or more buy/sell transactions or contracts (or similar transactions or contracts) with any Affiliate thereof involving the purchase or sale of crude oil or petroleum products (with pricing based on the prevailing market price for the relevant crude oil or petroleum product at the location at which title is transferred and otherwise on terms substantially as favorable to Jamex Parent or such Jamex Parent Subsidiary as would be reasonably obtainable by Jamex Parent or such Jamex Parent Subsidiary at the time in a comparable arms-length transaction with a Person other than an Affiliate).
"I. That Lessee is a Mexican corporation duly incorporated pursuant to the General Law of Mercantile Corporations and Mr. Luis Martin Soto Tellez is duly authorized to act on behalf of Lessee as evidenced with public deed number 13,750 dated July 28, 2016, granted before Mr. Miguel ngel Marcos Talams, Alternate Notary Public of the Notary Public number 46, which is owned by Mr. Patricio Enrique Chapa Gonzlez, in and for the city of Monterrey, State of Nuevo Len. The authorities of Mr. Luis Martin Soto Tellez to act on behalf of and represent Lessee under the terms of this Lease have not been revoked or limited in any manner whatsoever."
"(h) ""Pollutant"" means any substances, wastes and contaminants listed, defined, designated or classified as hazardous, corrosive, reactive, toxic, explosive flammable, biologically infectious, radioactive or as a pollutant or contaminant under the Environmental Laws that relates to or otherwise imposes liability or standards of conduct concerning employee or occupational health or safety or otherwise subject to regulation under the Environmental Laws or health and safety law as any of such terms are defined under the Environmental Laws or health and safety laws in Mexico."
"4.1 Lessor shall, at its own cost and expense, deliver in the Substantial Completion Date the Leased Property to Lessee with the Specifications set forth in in Exhibit ""H"" and Additional Improvements set forth in Exhibit ""H-1"", and Lessee shall accept the delivery of the Leased Property in such conditions, after a joint walk through by the parties verifying such conditions or creating a punch list of minor construction details that Lessor will agree to promptly perform at its sole cost and expense. Upon Substantial Completion, Lessee and the Lessor will sign a certificate substantially to the form enclosed hereto as Exhibit ""I"" (the ""Substantial Completion Certificate""), which shall include: (i) the punch list expressing the time and terms of conclusion agreed by the Lessor and Lessee (hereinafter the ""Punch List""); (ii) proof certifying the physical condition of the Leased Property such as pictures. The Substantial Completion Certificate will not be unreasonably withheld, in the understanding that if such certificate is not signed by Lessee within a term of thirty (30) calendar days following Lessor achieving Substantial Completion, Lessor shall be entitled to terminate this Agreement without any penalty or liability by means of written notice to Lessee thirty (30) calendar days before the date of termination."
"4.2 In the event Lessor fails to deliver the Leased Property on the Substantial Completion Date, Lessee shall be entitled to perform the work required, at Lessor's sole cost and expense pursuant to Clause 18.1. Lessor and Lessee shall sign the Substantial Completion Certificate referred above within five (5) business days following Lessor evidencing completion of such work, and Lessor shall, within five (5) business days thereafter, reimburse Lessee's costs assumed above provided that such costs are supported with copies of invoices and expense receipts and that Lessee issues the relevant invoice, which shall comply with all applicable Mexican tax requirements."
"5.5 Lessee shall not allow fumes, smoke, dust, gas, noises or vibration to be released from the Leased Property in a manner which is inconsistent or in violation with the Environmental Laws, and Lessee shall not carry out any other activity different from Lessee's Activities which would materially disturb, interfere or endanger Lessor or any other occupant located in the Park whereby the Leased Property is located."
"7.3 Rent Adjustments. The Parties agree that beginning on the second anniversary of the Rental Commencement Date, this is, as of the beginning of month 13th of the Initial Term and throughout such Initial Term and any Renewal, if such is the case, the Rent shall be adjusted on a yearly basis considering either: (a) the average increase of the Consumer Price Index for al Urban Consumers of the United States of America, as announced by the Bureau of Labor Statistics (CPI-U), for the 12 (twelve) preceding months; or (b) with a 2.5% increase, whichever figure results higher; provided, however, such increase shall not exceed a cap of 4% (four percent). In the event that the last CPI-U has not been announced, the indexes announced during the immediately previous twelve (12) months shall be considered as a base to obtain the referred adjustment."
"7.7 Proration. If the Rental Commencement Date should occur on a day other than the first day of a calendar month, then the monthly Rent for such fractional month shall be pro-rated on a daily basis assuming a thirty (30) day month. In the same manner, if the termination date of the Lease should occur on a day other than the last day of a calendar month, then the monthly Rent for such fractional month shall be pro-rated on a daily basis assuming a thirty (30) day month."
"7.10 Payment. At the election of Lessee, all payments of Rent set forth herein shall be in Dollars, legal currency of the United States of America, or its equivalent in pesos at the exchange rate to published in the Official Federal Gazette by the Central Bank of Mexico, one (1) Business Day prior to the day that said payments shall be made to Lessor."
"10.2 Lessee's Maintenance. Any other maintenance of the Leased Property not contemplated in the above Clause 10.1, shall be furnished by Lessee at Lessee's own cost and expense, including but not limited to cleaning, gutters and canopies (except structure), interior and exterior painting, floors, floor's sealing, water tappet, glass, windows, lighting and electric installations inside the Leased Property (excluding those which are responsibility of Lessor), ventilation, air conditioning as applicable, plumbing inside the Leased Property, and landscaping. The latter pursuant to the ""Maintenance Carnet"" attached hereto as Exhibit ""J""."
"13.5 In the event that a casualty occurs in the Leased Property and as a result thereof the Building is damaged or destroyed, Lessee shall phone Lessor within twenty-four (24) hours following the casualty and shall thereafter provide written notice of such casualty to Lessor as provided in Section 12.2 above. Lessee and/or Lessor shall immediately initiate Adjustment Procedures for the purpose of collecting the insurance."
"13.8 Moreover, the Parties herein agree that if Lessee should request Lessor in writing to procure the insurance policies as set forth in this Clause, Lessor, without waiving or releasing Lessee from the obligations contained in this Clause, may, without being obligated to do so, procure any such insurance policies and Lessee will pay and/or reimburse all costs for such insurance policies within ten (10) calendar days after receiving written notice from Lessor. In the event that Lessee does not reimburse to Lessor the cost of the insurance policies as set forth above, Lessee will pay to Lessor interest over any unpaid amount at the rate established in Clause 7.6 of this Lease."
"17.3 At expiration of this Lease or any Renewal thereof, Lessee shall surrender possession and use of Leased Property to Lessor in substantially the same conditions as received by Lessee, fair wear and tear excepted. All accessories, inscriptions, canopies, fixtures or similar nature installed by Lessee shall be removed prior or at the expiration of the Initial Term of the Lease or any Renewal thereof, and Lessee shall evidence the appropriate maintenance to the Leased Property under the terms of Exhibit ""J"", with the relevant documents."
"Lessee shall in good faith allow Lessor and its authorized agents to enter into the Leased Property during Lessee's regular Business Days and hours upon at least forty-eight (48) hours prior written notice to such inspection, for the purpose of inspecting or performance work that might be required by them or that be necessary due to Lessee's failure to comply the repairs or to perform such work or to begin the same on the Leased Property, provided that (a) Lessor's entry shall not interfere with Lessee's operation or use of the Leased Property; (b) Lessor and its agents and representatives agree to maintain as confidential all information and processes observed as a result of such entry; (c) Lessee shall be entitled to escort Lessor in any such entry ~~,~~ ; and (d) Lessor and its agents and representatives comply with any safety measures of Lessee."
"22.1 Indemnification. Lessor agrees to indemnify, defend and hold Lessee free and harmless from any claims for personal injury or property damage which may be asserted against the Lessee during the term hereof, arising out of the negligence or tortious actions or omissions of Lessor, its contractors, servants, employees, agents, assigns, representatives, licensees or invitees. Likewise, Lessee agrees to indemnify, defend and hold Lessor free and harmless from any claims for personal injury or property damage which may be asserted against Lessor during the term hereof, arising out of the negligence or tortious actions or omissions of Lessee, its contractors, servants, employees, agents, assigns, representatives, licensees or invitees."
"Repairs: During the Lease term, Tenant shall make, at Tenant's expenditure, all essential repairs to the Leased Premise. Repairs shall contain such items as routine repairs of floors, walls, ceilings, and other parts of the Leased Premise damaged or worn through normal occupancy, except for major mechanical systems or the roof, subject to the obligations of the parties otherwise set forth in this Lease."
"Alterations and Improvements: Tenant, at Tenant's expenditure, shall have the right, upon getting Landlord's permission, to alter, redecorate, and make additions, improvements and replacements of and to all or any part of the Leased Premise from time to time as Tenant may deem desirable, provided the same are made in a workmanlike manner and utilizing good quality materials. Tenant shall have the right to place and install personal property, trade fixtures, equipment and other temporary installations in and upon the Leased Premise, and fasten the same to the Premise. All personal property, equipment, machinery, trade fixtures and temporary installations, whether acquired by Tenant at the commencement of the Lease term or placed or installed on the Leased Premise by Tenant thereafter, shall remain Tenant's property free and clear of any claim by Landlord. Tenant shall have the right to remove the same at any time during the term of this Lease provided that Tenant shall repair, at Tenant's expense, all damage to the Leased Premise caused by such removal."
" | (c) | Executive shall devote substantially full-time attention to the business and affairs of the Company and its affiliates. Executive may (i)serve on corporate civil, charitable or non-profit boards or committees, subject in all cases to the prior approval of the Board and other applicable written policies of the Company and its affiliates as in effect from time to time, and (ii)manage personal and family investments, participate in industry organizations and deliver lectures at educational institutions, so long as no such service or activity unreasonably interferes, individually or in the aggregate, with the performance of his responsibilities hereunder. ---|---|--- * * *"
" | (a) | Base Salary. The Company agrees to pay or cause to be paid to Executive during the Employment Term a base salary at the rate of $950,000 per annum or such increased amount in accordance with this Section4(a) (hereinafter referred to as the Base Salary). Such Base Salary shall be payable in accordance with the Companys customary practices applicable to its executives. Such Base Salary shall be reviewed at least annually by the Board or by the Committee, and may be increased in the sole discretion of the Committee, but not decreased. ---|---|--- "
"Incentive Compensation. For each fiscal year of the Company ending during the Employment Term, beginning with the 2017 fiscal year, Executive shall be eligible to receive a target annual cash bonus of 100% of the Base Salary (such target bonus, as may hereafter be increased, the Target Bonus) with the opportunity to receive a maximum annual cash bonus in accordance with the terms of the applicable annual cash bonus plan as in effect from time to time, subject to the achievement of performance targets set by the Committee. Such annual cash bonus (Incentive Compensation) shall be paid in no event later than the 15th day of the third month following the end of the taxable year (of the Company or Executive, whichever is later) in which the performance targets have been achieved. If the parties (following good faith negotiation) fail to enter into a new employment agreement following expiration of the Employment Term and Executive terminates his employment within ninety (90)days following expiration of the Employment Term under circumstances that would have ---|---|--- "
"5. | Long-Term Compensation. During the Employment Term, Executive shall be eligible to receive equity-based compensation to be awarded, in the sole discretion of the Committee (at a level commensurate with his position as Chief Executive Officer, as compared to other senior executives of the Company), which may be subject to the achievement of certain performance targets set by the Committee. All such equity-based awards shall be subject to the terms and conditions set forth in the applicable plan and award agreements, and in all cases shall be as determined by the Committee; provided, that, such terms and conditions shall be no less favorable than those provided for other senior executives of the Company. If the parties (following good faith negotiation) fail to enter into a new employment agreement following expiration of the Employment Term and Executive terminates his employment within ninety (90)days following expiration of the Employment Term under circumstances that would have constituted Good Reason had such termination occurred during the Employment Term or if, during such 90-day period, the Company terminates Executives employment under circumstances that would not have constituted Cause had such termination occurred during the Employment Term, then such termination of employment shall be treated as a termination of employment for Good Reason or without Cause, as applicable, for purposes of the Initial Stock Options and the performance-based restricted stock units held by Executive as of the date of such termination of employment (and such awards shall be treated in accordance with the terms of the applicable award agreements). ---|--- "
" | (a) | Disability. The Company may terminate Executives employment, on written notice to Executive after having reasonably established Executives Disability. For purposes of this Agreement, Executive will be deemed to have a Disability if, as a result 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 twelve (12)months, Executive is unable to perform the core functions of Executives position (with or without reasonable accommodation) or is receiving income replacement benefits for a period of six months or more under the Companys long-term disability plan. 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. ---|---|--- "
" | (e) | Good Reason. Executive may terminate employment with the Company for Good Reason (as defined below) by delivering to the Company a Notice of Termination (as defined in Section8 below) 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 any of the following: (i)a diminution in Executives Base Salary, Target Bonus (provided that in no event shall a failure to earn a bonus equal or in excess of the Target Bonus by reason of failure to achieve applicable performance goals be deemed Good Reason) or a material diminution in benefits; (ii)a material, adverse change to Executives position, duties or responsibilities without Executives express written consent; (iii)any change in reporting structure such that Executive is required to report to someone other than the Board; (iv)any material breach by the Company of its obligations under this Agreement (including the material failure to pay any amounts due hereunder when due or the failure of the Company to abide by the requirements of Section15(a)(i) below with respect to successors or permitted assigns); or (v)the Company requiring Executive to be based at any office or location that increases the length of Executives commute by more than fifty (50)miles. 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. ---|---|--- "
" | (iii) | continued coverage for Executive and Executives dependents under any health, medical, dental, vision or life insurance program or policy in which Executive was eligible to participate as of the time of Executives employment termination, for two (2)years following such termination on the same basis as active employees, which such two year period shall run concurrently with the COBRA period, and which coverage shall become secondary to any coverage provided to Executive by a subsequent employer and to any Medicare coverage for which Executive becomes eligible; provided, however, the parties agree to cooperate such that the continued coverage is, to the extent practicable, provided in a manner so as to minimize adverse tax consequences to the Company. ---|---|--- "
" | (iii) | continued coverage for Executives dependents under any health, medical, dental, vision or life insurance program or policy in which Executive was eligible to participate as of the time of Executives employment termination, for two (2)years following such termination on terms no less favorable to Executives dependents (including with respect to payment for the costs thereof) than those in effect immediately prior to such termination, which such two year period shall run concurrently with the COBRA period. ---|---|--- "
" | (v) | continued coverage under any health, medical, dental, vision or life insurance program or policy in which Executive was eligible to participate as of the time of Executives employment termination for two (2)years following such termination on the same basis as active employees, which such two year period shall run concurrently with the COBRA period, and which coverage shall become secondary to any coverage provided to Executive by a subsequent employer and to any Medicare coverage for which Executive becomes eligible. Notwithstanding the above, in the event such continued coverage, by reason of change in the applicable law, may, in the Companys reasonable view, result in tax or other penalties on the Company, this provision shall terminate and the parties shall, in good faith, negotiate for a substitute provision that provides substantially similar benefit to Executive but does not result in such tax or other penalties. ---|---|--- "
" | (f) | No Mitigation. Executive shall not be required to mitigate the amount of any payment provided for under this Section9 by seeking other employment or otherwise and, except as provided in Section9(b)(iii), 9(d)(v), and 9(e)(v) above, no such payment shall be offset or reduced by the amount of any compensation or benefits provided to Executive in any subsequent employment. Further, the Companys obligations to make any payments hereunder shall not be subject to or affected by any set-off, counterclaim or defense which the Company may have against Executive. ---|---|--- "
" | (a) | Executive acknowledges that in connection with the performance of Executives duties during the Employment Term, the Company and its affiliates will make available to Executive, or Executive will develop and have access to, certain Confidential Information (as defined below) of the Company and its affiliates. Executive acknowledges and agrees that any and all Confidential Information learned or obtained by Executive during the course of Executives employment by the Company or otherwise, whether developed by Executive alone or in conjunction with others or otherwise, shall be and is the property of the Company and its affiliates. ---|---|--- "
" | (ii) | information concerning the business and affairs of the Company and its affiliates (which includes unpublished financial statements, financial projections and budgets, unpublished and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, to the extent not publicly known, personnel training and techniques and materials) however documented; and ---|---|--- "
"Cooperation in Any Investigations and Litigation; No Cooperation with Non- Governmental Third Parties. Executive agrees that Executive will reasonably cooperate with the Company and its affiliates, and its counsel, (i)in connection with any investigation, inquiry, administrative proceeding or litigation relating to any matter in which Executive was involved or of which Executive has knowledge as a result of Executives service with the Company by providing truthful information, and (ii)in all matters concerning requests for information about the services or advice Executive provides to the Company during his employment with Endo, its affiliates and their predecessors. Such cooperation shall be subject to Executives business and personal commitments and shall not require Executive to cooperate against his own legal interests or the legal interests of any future employer of Executive. The Company agrees to promptly reimburse Executive for reasonable expenses reasonably incurred by Executive, in connection with Executives cooperation pursuant to this Section12(d) (including travel expenses at the level of travel permitted by this Agreement and reasonable attorney fees in the event Executive reasonably determines that separate legal counsel for Executive is appropriate). Such reimbursements shall be made as soon as practicable, and in no event later than the calendar year following the year in which the expenses are incurred. Executive also shall not (i)support (financially or otherwise), counsel or assist any attorneys or their clients or any other ---|---|--- "
"13. | Remedies for Breach of Obligations under Sections 11 or 12 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 Sections 11 or 12 hereof. Accordingly, Executive agrees that the Company and its affiliates will be entitled, in addition to any other available remedies, to obtain injunctive relief against any breach or prospective breach by Executive of Executives obligations under Sections 11 or 12 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, 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. ---|--- "
" | (a) | The Company represents and warrants that (i)it is fully authorized by action of the Board (and of any other person or body whose action is required) to enter into this Agreement and to perform its obligations under it, (ii)the execution, delivery and performance of this Agreement by it does not violate any applicable law, regulation, order, judgment or decree or any agreement, arrangement, plan or corporate governance document (x)to which it is a party or (y)by which it is bound, and (iii)upon the execution and delivery of this Agreement by the parties, this Agreement shall be its valid and binding obligation, enforceable against it in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors rights generally. ---|---|--- "
" | (b) | Fees and Expenses. The Company shall pay reasonable and documented legal fees and related expenses, up to a maximum amount of $25,000, incurred by Executive in connection with the negotiation of this Agreement and related employment arrangements. Such reimbursement shall be made as soon as practicable, but in no event later than the end of the calendar year following the calendar year in which the expenses were incurred. Executive is responsible for any taxes that may be due based upon the value of the fees and expenses reimbursed by the Company. Executive acknowledges that Executive has had the opportunity to consult with legal counsel of Executives choice in connection with the drafting, negotiation and execution of this Agreement and related employment arrangements. ---|---|--- "
" | (d) | Indemnification. Executive shall be indemnified by the Company as, and to the extent, to the maximum extent permitted by applicable law as provided in the memorandum and articles of association of Endo. In addition, the Company agrees to continue and maintain, at the Companys sole expense, a directors and officers liability insurance policy covering Executive both during and the Employment Term and while the potential liability exists (but in no event longer than six (6)years, if such limitation applies to all other individuals covered by such policy) after the Employment Term, that is no less favorable than the policy covering Board members and other executive officers of the Company from time to time. The obligations under this paragraph shall survive any termination of the Employment Term. ---|---|--- "
" | (e) | Withholding. The Company shall be entitled to withhold the amount, if any, of all taxes of any applicable jurisdiction required to be withheld by an employer with respect to any amount paid to Executive hereunder. The Company, in its sole and absolute discretion, shall make all determinations as to whether it is obligated to withhold any taxes hereunder and the amount thereof. ---|---|--- "
" | Discrimination in Employment Act of 1967, as amended by the Older Workers Benefit Protection Act, following Executives termination date, and not revoking Executives consent to such release of claims within seven (7)days of such execution; provided, however, that Executive shall not be required to release any rights Executive may have to be indemnified by, or be covered under any directors and officers liability insurance of, the Company under Section15(d) of this Agreement and provided further that, following a Change in Control, Executives requirement to deliver a release shall be contingent on the Company delivering to Executive a release of claims in the form of Exhibit A hereto. ---|--- "
" | (i) | 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 compliance 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 agreement 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. ---|---|--- "
" | (n) | Inconsistencies. In the event of any inconsistency between any provision of this Agreement and any provision of any employee handbook, personnel manual, program, policy, or arrangement of the Company or its affiliates (including, without limitation, any provisions relating to notice requirements and post-employment restrictions), the provisions of this Agreement shall control, unless Executive otherwise agrees in a writing that expressly refers to the provision of this Agreement whose control he is waiving. ---|---|--- "
" | (p) | Survivorship. Except as otherwise set forth in this Agreement, the respective rights and obligations of the parties hereunder shall survive the Employment Term and any termination of Executives employment. Without limiting the generality of the forgoing, the provisions of Section9, 11, 12, and 13 shall survive the Employment Term. ---|---|--- "
" | rights Executive may have under any applicable general liability and/or directors and officers insurance policy maintained by the Company; (d)any rights Executive may have to vested benefits under employee benefit plans or incentive compensation plans of the Company; (e)any rights Executive may have as a general shareholder of the Company; (f)Executives ability to bring appropriate proceedings to enforce the Release; (g)any rights to the payments and benefits provided in Section [9(d)(ii), (iii), (iv)and (v)] of the Employment Agreement; and (h)any rights or claims Executive may have that cannot be waived under applicable law (collectively, the Excluded Claims). Executive further acknowledges and agrees that, except with respect to Excluded Claims, the Company and the Releasees have fully satisfied any and all obligations whatsoever owed to Executive arising out of Executives employment with the Company or any of the Releasees, and that no further payments or benefits are owed to Executive by the Company or any of the Releasees. Nothing in this Release is intended to prohibit or restrict Executives right to file a charge with or participate in a charge by the Equal Employment Opportunity Commission, or any other local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related to employment; provided that Executive hereby waives the right to recover any monetary damages or other relief against any Releasees. ---|--- [Upon the Release becoming effective, the Company hereby discharges and generally releases Executive from all claims, causes of action, suits, agreements, and damages which the Company may have now or in the future against Executive for any act, omission or event relating to his employment with the Company or termination of employment therefrom occurring up to and including the date on which the Company signs the Release (excluding any acts or omissions constituting fraud, theft, embezzlement or breach of fiduciary duty by Executive) to the extent that such claim, cause of action, suit, agreement or damages is based on facts, acts, omissions, circumstances or events actually known, or which should have been reasonably known, on the date on which the Company signs the Release by any officer or member of the Board of Directors of the Company.]1"
"7. | The Release and the rights and obligations of the parties hereto shall be governed and construed in accordance with the laws of the State of Delaware. If any provision hereof is unenforceable or is held to be unenforceable, such provision shall be fully severable, and this document and its terms shall be construed and enforced as if such unenforceable provision had never comprised a part hereof, the remaining provisions hereof shall remain in full force and effect, and the court construing the provisions shall add as a part hereof a provision as similar in terms and effect to such unenforceable provision as may be enforceable, in lieu of the unenforceable provision. ---|--- "
"THEREFORE, it is hereby agreed by both the Company, and N600PG, that the outstanding Notes, principal and interest totaling $102,794, and owed to N600PG pursuant to the Convertible Notes listed in Schedule One and attached to this Agreement, by the Company, shall be cancelled, and no further obligations of the Company, under the Notes listed in Schedule One, are contemplated."
"THIS FIFTH AMENDMENT TO AMENDED AND RESTATED LEASE AGREEMENT NO. 2 (this Amendment) is made and entered into as of June30, 2016, by and between HPT TA PROPERTIES TRUST, a Maryland real estate investment trust, and HPT TA PROPERTIES LLC, a Maryland limited liability company, as landlord (collectively, Landlord), and TA OPERATING LLC, a Delaware limited liability company, as tenant (Tenant)."
"LOT 7 IN RIDGEPORT LOGISTICS CENTER - PHASE 2, BEING A SUBDIVISION OF PARTOF SECTION16, TOWNSHIP 33 NORTH, RANGE 9, EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT THEREOF RECORDED MAY2, 2014 AS DOCUMENT R2014-036536 AND AS AMENDED BY THE CERTIFICATE OF CORRECTION RECORDED AUGUST 21, 2014 AS DOCUMENT NO. R2014-074296 AND BY CERTIFICATE OF CORRECTION RECORDED DECEMBER 10, 2014 AS DOCUMENT R2014-107175,IN WILL COUNTY,ILLINOIS."
" | 8. | 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."
" | 11. | ENTIRE AGREEMENT ---|---|--- This Agreement is intended to be the final, complete, and exclusive statement of the terms of Executives severance rights from the Company and HoldCo and may not be contradicted by evidence of any prior or contemporaneous statements or agreements, except for agreements specifically referenced herein. Any Severance paid or payable under this Agreement shall be in lieu of (and not in addition to) any other severance to which Executive may otherwise be entitled. To the extent that any plans, practices, policies, agreements or arrangements of the Company, HoldCo or their respective affiliates, as applicable, now or in the future, apply to Executive and are inconsistent with the terms of this Agreement, the provisions of this Agreement shall control. Any subsequent change in Executives duties, position, or compensation will not affect the validity or scope of this Agreement."
" | 12. | EXECUTIVE ACKNOWLEDGEMENT ---|---|--- EXECUTIVE ACKNOWLEDGES EXECUTIVE HAS HAD THE OPPORTUNITY TO CONSULT LEGAL COUNSEL CONCERNING THIS AGREEMENT, THAT EXECUTIVE HAS READ AND UNDERSTANDS THE AGREEMENT, THAT EXECUTIVE IS FULLY AWARE OF ITS LEGAL EFFECT, AND THAT EXECUTIVE HAS ENTERED INTO IT FREELY BASED ON EXECUTIVES OWN JUDGMENT AND NOT ON ANY REPRESENTATIONS OR PROMISES OTHER THAN THOSE CONTAINED IN THIS AGREEMENT."
"/s/ Hanlin Gao Name: |  | Paul Kim |  | |  | |  | Title: |  | Chief Financial Officer |  | |  | |  | | | | FULGENT DIAGNOSTICS, INC.: |  | |  | |  | | | | | By: |  |"
"3\. In exchange for the separation benefits described above, Executive completely releases the Company and HoldCo, and each of its and their affiliated, related, parent or subsidiary entities, and each of its and their present and former officers, directors, employees, shareholders, members and agents (the Released Parties) from any and all claims of any kind, known and unknown, which Executive may now have or have ever had against any of them. This release includes all claims arising from Executives employment with the Company and/or HoldCo and its and their termination, including claims under the California Fair Employment and Housing Act, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, as amended, or any other claims for violation of any federal, state, or municipal statutes, any and all claims in contract or tort or premised on any other legal theory and any and all claims for attorneys fees and costs; provided, however, that nothing in this Release Agreement shall (a)waive any rights or claims of Executive that arise after this Release"
"7\. Executive acknowledges that Executive has [twenty-one (21)][forty-five (45)] days to consider this Release Agreement (but may sign it at any time beforehand if Executive so desires), and that Executive is advised to consult an attorney in doing so. Executive hereby acknowledges that Executive understands the significance of this Release Agreement, and represents that the terms of this Release Agreement are fully understood and voluntarily accepted by Executive. Executive also acknowledges that Executive can revoke this Release Agreement within seven (7)days of signing it by sending a letter to that effect at the following address:"
"2\. Separation. The Executive and the Company agree that the Executives employment with the Company shall cease and the Executive shall be deemed to be terminated by the Company from his position as Chief Executive Officer without Cause pursuant to Section 5(c) of the Employment Agreement, as well as all other positions that the Executive may hold as an employee, officer and/or director of the Company and its Affiliates, all effective as of 11:59 pm CDT on September 1, 2015 (the Separation Date)."
"3.2 Separation Pay. In accordance with Section 5(c) of the Employment Agreement and conditioned upon the Executives execution, delivery and nonrevocation of, and compliance with, the Waiver and General Release of Claims attached hereto as ExhibitB within twenty-one (21) days following the date hereof, the Company shall provide the Executive with the payments and benefits in the amounts and at the times and subject to the additional conditions indicated on the chart attached hereto as Exhibit A; provided, that the Company shall not be obligated to make any such payments after the date the Executive first materially violates any of the restrictive covenants set forth in Section 6 of the Employment Agreement. The Executive agrees to immediately notify the Company in the event he becomes eligible for any employer group health plan coverage on or following the Separation Date, whether or not he elects such coverage."
"3.4 No Other Benefits. Except as provided in this Agreement, the Employment Agreement or the Plan, the Executive shall not be entitled to receive any other payment, benefit or other form of compensation as a result of his employment or the termination thereof. Further, the Executive agrees that, in connection with any appointments on management and advisory boards for the Company and any affiliates of the Company, and for any tasks performed in connection therewith, the Executive shall not be entitled to any further remuneration and/or any other benefits."
" | b. | Executive intends that this general release extend to any and all Claims of any kind or character related to the Company, and Executive, on behalf of himself, his agents, heirs, executors, successors and assigns, therefore expressly waives any and all rights granted by federal or state law or regulation that may limit the release of unknown claims. ---|---|--- "
"Except as provided in Section 5(c) of the Employment Agreement, Executive acknowledges and agrees that the Company has fully satisfied any and all obligations owed to him arising under the Employment Agreement, and no further sums are owed to him by the Company or by any of the other Releasees at any time under the Employment Agreement. Executive represents and warrants that Executive has not filed, and Executive will not file, any lawsuit or institute any proceeding, charge, complaint or action asserting any claim released by this Agreement before ---|---|--- * * *"
" | any federal, state, or local administrative agency or court against any Releasee, concerning any event occurring prior to the signing of this Agreement. Nothing in this Agreement, however, shall be construed as prohibiting Executive from filing a charge or complaint with the Equal Employment Opportunity Commission (EEOC) or participating in an investigation or proceeding conducted by the EEOC, although Executive hereby agrees that he is waiving any right he may have to benefit in any manner from any relief (whether monetary or otherwise) arising out of any such investigation or proceeding conducted by the EEOC. Executive also hereby agrees that nothing contained in this Agreement shall constitute or be treated as an admission of liability or wrongdoing by any of the Releasees. ---|--- "
" | 3. | Effective Date: Revocation. Executive acknowledges and represents that he has been given at least twenty-one (21) days during which to review and consider the provisions of this Agreement and, specifically, the General Release set forth in Section 1 above, although he may sign and return it sooner if he so desires. Executive further acknowledges and represents that he has been advised by the Company that he has the right to revoke this Agreement for a period of seven (7) days after signing it. Executive acknowledges and agrees that, if he wishes to revoke this Agreement, be must do so in a writing, signed by him and received by the Company no later than 5:00 p.m. local time on the seventh (7th) day of the revocation period. If the last day of the revocation period falls on a Saturday, Sunday or holiday, the last day of the revocation period will be deemed to be the next business day. If no such revocation occurs, the General Release and this Agreement shall become effective on the eighth (8th) day following his execution of this Agreement. Executive further acknowledges and agrees that, in the event that he revokes this Agreement, it shall have no force or effect, and he shall have no right to receive any severance payments pursuant to Section 5(c) of the Employment Agreement. ---|---|--- "
" | 4. | Warranty Against Prior Transfer of Released Claims. Executive hereby represents and warrants to the Releasees that Executive is the sole owner of any Claims that Executive may now have or in the past had against any of the Releasees and that Executive has not assigned, transferred, or purported to assign or transfer any such Claim to any person or entity. ---|---|--- "
"7\. EXPIRATION OF LEASE:At the expiration of the term of this lease or cancellation thereof, as herein provided, the LESSEE will promptly deliver to the LESSOR the leased premises with all corresponding keys and in as good and tenable condition as the same is now, ordinary wear and tear expected devoid of all occupants, movable furniture, articles and effects of any kind. Non- compliance with the terms of this clause by the LESSEE will give the LESSOR the right, at the latter's option, to refuse to accept the delivery of the premises and compel the LESSEE to pay rent therefrom at the same rate plus Twenty Five (25) % thereof aspenaltyuntil the LESSEE shall have complied with the terms hereof. The samepenaltyshall be imposed in case the LESSEE fails to leave the premises after the expiration of thisContractof Lease orterminationfor any reason whatsoever."
"Existing Leases means those certain agreements between Seller and any unrelated third party to lease, license or occupy a portion of any of the Properties together with any amendments, guarantees and other agreements relating thereto, together with all Tenant files in Sellers possession and/or control with respect to the Existing Leases, and all claims, demands,"
"Section3.1 Purchase Price. The purchase price for the Purchased Assets (the Purchase Price) shall be the amount set forth on Schedule3.1 and shall be allocated among the Properties as set forth on Schedule3.1. The Purchase Price shall be payable as provided in Section3.3. Seller and Purchaser shall use the allocation set forth on Schedule 3.1 in their dealings with one another pursuant to this Agreement, including for purposes of reporting this transaction for transfer tax and similar purposes, but each of Seller and Purchaser expressly reserve the right to allocate the Purchase Price as to any one or all of the Properties for federal, state, local and foreign income tax purposes, for its own internal purposes and in its dealings with all other third parties in such a manner as each of Seller and Purchaser shall reasonably determine, notwithstanding the allocations set forth on Schedule3.1. Seller and Purchaser acknowledge and agree that the value of the Personal Property that is included in the transaction contemplated by this Agreement is de minimis and no part of the Purchase Price is allocable thereto."
"Section3.2 Assumption of Obligations. As additional consideration for the purchase and sale of the Purchased Assets, at the Closing, Purchaser will assume all of the covenants and obligations of Seller pursuant to the Assigned Agreements and the Licenses and Permits which first arise or accrue on or subsequent to the Closing Date. Seller shall be liable for and shall satisfy or cause to be satisfied all of the obligations of Seller pursuant to the Assigned Agreements and the Licenses and Permits that arise or accrue prior to the Closing."
"Section5.3 DUE DILIGENCE INDEMNITY. PURCHASER SHALL DEFEND,INDEMNIFY AND HOLD HARMLESS SELLER AND THE SELLER PARTIES FROM AND AGAINST ALL CLAIMS, ACTIONS, LOSSES, LIABILITIES, DAMAGES, COSTS AND EXPENSES, ARISING OUT OF INJURY OR DEATH TO PERSONS OR DAMAGE TO ANY OF THE PURCHASED ASSETS,INCLUDING ANY PROPERTY OF TENANTS UNDER LEASES OR OTHERWISE, AND INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS FEES AND COSTS INCURRED, SUFFERED BY, OR CLAIMED AGAINST SELLER CAUSED BY (a)PURCHASERS OR ANY OF ITS CONSULTANTS ENTRY UPON THE PROPERTIES AND ANY OF THE DUE DILIGENCE ACTIVITIES,INCLUDING, BUT NOT LIMITED TO, THE COSTS OF REMEDIATION, RESTORATION AND OTHER SIMILAR ACTIVITIES, MECHANICS AND MATERIALMENS LIENS AND ATTORNEYS FEES ARISING OUT OF OR IN CONNECTION WITH THE DUE DILIGENCE; PROVIDED, HOWEVER, THAT PURCHASER SHALL HAVE NO DUTY TO DEFEND OR INDEMNIFY SELLER FOR ANY LOSSES ARISING OUT OF CONDITIONS MERELY DISCOVERED, BUT NOT CAUSED OR CONTRIBUTED TO, BY PURCHASER OR ITS CONSULTANTS, AND (b)ANY BREACH OF THIS AGREEMENT BY PURCHASER OR ANY CONSULTANT OR ANY OF THEIR RESPECTIVE PARTNERS, DIRECTORS, OFFICERS, AGENTS, MEMBERS, SHAREHOLDERS, ATTORNEYS OR REPRESENTATIVES. THE PROVISIONS OF THIS SECTION5.3 SHALL SURVIVE THE CLOSING OR,IF THE CLOSING DOES NOT OCCUR, ANY TERMINATION OF THIS AGREEMENT, AND SHALL NOT BE SUBJECT TO ANY LIMITATION OF LIABILITY SET FORTH HEREIN."
"Section5.5 Tenant Estoppel Certificates. On or before the date hereof, Seller shall have delivered to Purchaser fully completed and executed estoppel certificates for all Seller Lease Agreements in substantially the form attached hereto as ExhibitJ, which shall be dated as of the Closing Date (the Estoppel). The Estoppel shall be duly executed by the appropriate tenant under the Seller Lease Agreements."
"OTHER THAN THE MATTERS REPRESENTED IN SECTION8.1 AND WARRANTIES IN ANY CONVEYANCE DOCUMENTS, SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASER, AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY"
"AGREES THAT THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PURCHASED ASSETS BY SELLER, ANY AGENT OF SELLER OR ANY THIRD PARTY. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PURCHASED ASSETS FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE OR OTHER PERSON, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREIN OR IN ANY CONVEYANCE DOCUMENTS. PURCHASER ACKNOWLEDGES AND AGREES THAT THE PURCHASE PRICE REFLECTS THE AS IS, WHERE IS NATURE OF THIS SALE AND ANY FAULTS, LIABILITIES, DEFECTS OR OTHER ADVERSE MATTERS THAT MAYBE ASSOCIATED WITH THE PURCHASED ASSETS. PURCHASER, WITH PURCHASERS COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THE SIGNIFICANCE OF EACH AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PARTOF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PURCHASED ASSETS TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT."
"(a) Operations. Continue to operate, manage and maintain the Properties in the ordinary course of Sellers business and substantially in accordance with Sellers present practice, subject to ordinary wear and tear and further subject to ArticleXI, provided that Sellers obligations under this Section7.1(a)shall not include any obligations to make capital expenditures or any other expenditure not incurred in Sellers ordinary course of business."
"(a) Status. Seller is (i) an Illinois state chartered bank, (ii) duly organized and validly existing under the laws of the State of Illinois and (iii) qualified or authorized to transact business in each jurisdiction in which its ownership or leasing of the Purchased Assets makes such qualification or authorization necessary."
"(c) Non-Contravention. The execution and delivery of this Agreement by Seller and the consummation by Seller 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 Seller, any note or other evidence of indebtedness, any mortgage, deed of trust or indenture, or any material agreement or instrument to which Seller is a party or by which it is bound, or (iii) violate any law, statute, rule or regulation by which Seller is bound."
"(d) Consents. No consent, waiver, approval or authorization is required from any person, entity or Authority in the United States (that has not already been obtained) in connection with the execution and delivery of this Agreement and the Confidentiality and Access Agreement by Seller or the performance by Seller of the transactions contemplated hereby."
"(h) Bankruptcy. Seller has not (i) commenced a voluntary case, or had entered against it a petition, for relief under any federal bankruptcy act or any similar petition, order or decree under any federal or state law or statute relative to bankruptcy, insolvency or other relief for debtors, (ii) caused, suffered or consented to the appointment of a receiver,"
"(j) No Violations. Except as listed on Schedule 8.1(j), (i) Seller has not received written notice of any litigation, governmental or administrative proceedings or arbitrations presently pending or threatened in writing with respect to any of the Properties (exclusive of tort and other liability proceedings for which insurance coverage is available), (ii) to Sellers Knowledge, none of the Properties are in material violation of any applicable fire, health, building, use, occupancy or zoning laws, (iii) there is not any work that is required to be done upon or in connection with the Properties by any Authorities where such work remains outstanding and (iv) no Authority has revoked or threatened to revoke any material Licenses and Permits within the past two (2) years."
"(d) Consents. No consent, waiver, approval or authorization is required from any person, entity or Authority in the United States (that has not already been obtained) in connection with the execution and delivery of this Agreement and the Confidentiality and Access Agreement by Purchaser or the performance by Purchaser of the transactions contemplated hereby."
"supplement its qualifications to the representations and warranties in this Article VIII, by amendment of the schedules attached hereto or otherwise to reflect changes in facts or conditions or to correct any immaterial factual inaccuracies; provided, however, that no such amendment or supplement will be deemed to cure any breach of any representation or warranty made in this Article VIII or have any effect on the conditions in Section 9.1(a)(ii) or Section 9.2(c) with respect to any factual inaccuracy that existed when this Agreement was entered into, but will be deemed to cure any breach or inaccuracy for all purposes under this Agreement arising from a change in facts or conditions after this Agreement was entered into so long as, in the case of Seller, the change was not caused by Sellers breach of Article VIII or, in the case of Purchaser, the change was not caused by Purchasers breach of Section 5.2."
"Section 10.1 The Closing. The consummation of the transactions contemplated by this Agreement by delivery of documents and payments of money shall take place at 1:00 p.m. Central Time on the Scheduled Closing Date at the offices of the Title Company. At the Closing, the events set forth in this Article X will occur, it being understood that the performance or tender of performance of all matters set forth in this Article X are mutually concurrent conditions which may be waived by the party for whose benefit they are intended. The acceptance of the Deeds by Purchaser shall be deemed to be full performance and discharge of each and every agreement and obligation on the part of Seller to be performed hereunder unless otherwise specifically provided herein."
"(b) A blanket assignment and bill of sale for each of the Properties in substantially the form attached hereto as Exhibit B modified to comply with the law of each jurisdiction where the Properties are located (collectively, the Bills of Sale), duly executed by Seller, assigning and conveying to Purchaser title to the Personal Property without representation or warranty;"
"(b) Purchaser shall pay (i) all costs of any endorsements to the Title Policies that are desired by Purchaser; (ii) all premiums and other costs for any mortgagee policy of title insurance, if any, including but not limited to any endorsements or deletions; (iii) 100% of the recording fees for documentation to be recorded in connection with any loan obtained by the Purchaser in connection with the transaction contemplated by this Agreement; (iv) Purchasers attorneys fees; and (v) one-half (1/2) of any escrow fees charged by the Escrow Agent; and (vi) any transfer taxes attributable to the Properties charged by the city, municipality, village or town in which such Property is situated, to the extent such transfer taxes would customarily be borne by a purchaser of real property in such jurisdiction."
"(b) Escrow Agent shall not be liable to any party for any act or omission, except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge and agree that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Earnest Money Deposit and the interest earned thereon (the Escrowed Funds), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel."
"Seller has not made and does not make any express or implied warranty or representation of any kind whatsoever with respect to the Personal Property, including, without limitation, with respect to title, merchantability of the Personal Property or its fitness for any particular purpose, the design or condition of the Personal Property; the quality or capacity of the Personal Property; workmanship or compliance of the Personal Property with the requirements of any law, rule, specification or contract pertaining thereto; patent infringement or latent defects. Purchaser accepts the Personal Property on an as is, where is basis."
"And the Grantor, for itself, and its successors, does covenant, promise and agree, to and with the Grantee, its successors and assigns, that it has not done or suffered to be done, anything whereby the said premises hereby granted are, or may be, in any manner encumbered or charged, except as herein recited; and that it WILL WARRANT AND DEFEND the said premises, against all persons lawfully claiming, or to claim the same, by, through or under it, subject to the matters set forth on ExhibitB attached hereto."
"I,, a notary public in and for said County, in the State aforesaid, DO HEREBY CERTIFY THAT, personally known to me to be theof FIRST MIDWEST BANK, an Illinois state-chartered bank, and personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that as such he signed and delivered the said instrument pursuant to proper authority given said corporation, as his free and voluntary act, and as the free and voluntary act and deed of said corporation, for the uses and purposes therein set forth."
"1. That, except as noted at the end of this paragraph, within the last six (6) months (a) no labor, service or materials have been furnished to improve the land, or to rehabilitate, repair, refurbish, or remodel the building(s) situated on the land; (b) nor have any goods, chattels, machinery, apparatus or equipment been attached to the building(s) thereon, as fixtures; (c) nor have any contracts been let for the furnishing of labor, service, materials, machinery, apparatus or equipment which are to be completed subsequent to the date hereof; (d) nor have any notices of lien been received, except the following, if any:"
"8. That, in the event the undersigned is a mortgagor in a mortgage to be insured under a loan policy to be issued pursuant to the above commitment, the mortgage and the principal obligations it secures are good and valid and free from all defenses; that any person purchasing the mortgage and the obligations it secures, or otherwise acquiring any interest therein, may do so in reliance upon the truth of the matters herein recited; and that this certification is made for the purpose of better enabling the holder or holders, from time to time, of the above mortgage and obligations to sell, pledge or otherwise dispose of the same freely at any time, and to insure the purchasers or pledgees thereof against any defenses thereto by the mortgagor or the mortgagors heirs, personal representative or assigns."
"(d) Incorporation of Lease. The provisions set forth in the Lease are hereby incorporated into this Instrument as if set out in full herein. Nothing contained herein is intended to or does change or modify any of the terms or provisions of the Lease, or the rights, duties, obligations, conditions and agreements created thereby, all of which remain in full force and effect. In the event any conflict or inconsistency between the terms of this Instrument and the terms of the Lease, the terms of the Lease, as applicable, shall govern and control for all purposes."
"WHEREAS, Declarant desires to create a non-exclusive easement over a portion of McHenry Carey and McHenry Main, consisting of the Declaration Premises, and to apportion certain rights and obligations with respect thereto under the terms of this Declaration in connection with the future sale, lease or use of McHenry Main and McHenry Carey."
1.2 Non-Dedication. It is stipulated and agreed that the grants contained in this Article are not intended and shall not be construed as a dedication of any portion of McHenry Main or McHenry Carey for public use and the parties hereto shall take whatever steps may be necessary to avoid such dedication.
"(a) Each Lot Owner agrees that it shall, without any expense to Declarant (unless Declarant owns the Lot in question), maintain or cause to be maintained all improvements on its Lot and any other Lots for which it is responsible to maintain pursuant to subsection (b) below in good order and condition and state of repair and in accordance with all applicable laws. Any such costs and expenses shall not be reimbursable by other Lot Owners, subject to the terms hereof. Subject to the limitation set forth herein, each Lot Owner shall have the right to demolish improvements on its Lot other than the portion of the Lot that is part of the Declaration Premises."
"3.7 Severability. If any term or provision of this Declaration shall, to any extent, be invalid or unenforceable, the remainder of this Declaration (or the application of such term or provision, to persons or circumstances other than those in respect of which is invalid or unenforceable) except those terms or provisions, which are made subject to or conditioned upon such invalid or unenforceable term or provision, shall not be affected thereby, and each other term and provision of this Declaration shall be valid and enforceable to the fullest extent permitted by law."
"3.9 Estoppel Letter. At any time from time to time, upon request of Declarant or any Lot Owner, each Lot Owner and the Declarant shall, without charge, execute, acknowledge and deliver to the requesting party within ten (10) days after request, an instrument stating (if the same be true) that as of such date, no default has been declared hereunder by any party hereto and that the party executing the instrument has no knowledge of any facts or circumstances which it might reasonably believe would give rise to a default by any party."
"1.2 Interpretation and Usage. In this Agreement, unless a clear contrary intention appears: (a) the singular number includes the plural number and vice versa; (b) reference to any Person includes such Persons successors and assigns but, if applicable, only if such successors and assigns are not prohibited by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity or individually; (c) reference to any gender includes the other gender and the neuter, as applicable; (d) reference to any agreement, document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof; (e) reference to any Legal Requirement means such Legal Requirement as amended, modified, codified, replaced or reenacted, in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder, and reference to any section or other provision of any Legal Requirement means that provision of such Legal Requirement from time to time in effect and constituting the substantive amendment, modification, codification, replacement or reenactment of such section or other provision; (f) hereunder, hereof, hereto, and words of similar import will be deemed references to this Agreement as a whole and not to any particular Section or other provision hereof or any Exhibit or Schedule attached hereto; (g) including (and with correlative meaning include and includes) means including, without limiting the generality of any description preceding such term, and will be deemed to be followed by the words without limitation; (h) Section headings are provided for convenience of reference only and will not affect the construction or interpretation of any provision hereof; (i) any references to Section, Schedule or Exhibit followed by a number or letter or combination of the two refers to the corresponding Section, Schedule or Exhibit of or to this Agreement; (j) with respect to the determination of any period of time, from means from and including and to means to but excluding; and (k) references to documents, instruments or agreements will be deemed to refer as well to all addenda, exhibits, schedules or amendments thereto."
"Within ninety (90) calendar days after the Closing Date, Buyer shall prepare and deliver to Seller: (i) a balance sheet as of the Closing Date (the Closing Date Balance Sheet), and (ii) a statement reflecting Buyers determination of the Working Capital Adjustment as of the Closing Date (the Final Working Capital Determination) and the calculation thereof (the Final Statement). Buyer shall provide Seller with access to copies of all work papers and other relevant documents to verify the entries contained in the Closing Date Balance Sheet and the Final Statement. Seller shall have a period of thirty (30) calendar days after delivery of the Closing Date Balance Sheet and the Final Statement to review them and make any written objections Seller may have in writing to Buyer. If written objections to the Closing Date Balance Sheet and Final Statement are delivered to Buyer within such thirty (30) day period, then Buyer and Seller shall attempt to resolve the matter or matters in dispute. If no written objections are made by Seller within such thirty (30) day period, the Final Net Working Capital Determination shall be deemed accepted by Seller and the Purchase Price shall be adjusted by the amount of the Working Capital Adjustment pursuant to the Final Statement."
"(a) Organization of Buyer. Buyer is a corporation duly organized, validly existing, and in good standing under the laws of the State of New York. Buyer is duly authorized to conduct business and is in good standing under the laws of each jurisdiction where such qualification is required, except those jurisdictions where the failure to qualify would not have a Material Adverse Effect."
(h) Purchase for Investment. Buyer is acquiring the Membership Interests for investment and not with a view to distributing all or any part thereof in any transaction which would constitute a distribution within the meaning of the Securities Act. Buyer acknowledges that the Membership Interests have not been registered under the Securities Act.
"(m) Market for Common Stock. The stock of Buyer is quoted on the OTC Markets under the symbol MRDN. Buyer has not, in the twelve (12) months preceding the date hereof, received notice from any trading market on which shares of the common stock of Buyer (the Common Stock) are or have been listed or quoted to the effect that Buyer is not in compliance with the listing or maintenance requirements of such trading market. Buyer is in compliance in all material respects with all such listing and maintenance requirements and the consummation of the transactions contemplated by this Agreement do not violate any rules or regulations of a trading market on which shares of the Common Stock of Buyer are or have been listed."
"4.6 Title to Assets. Each of the Companies has good and marketable title to, or a valid leasehold interest in, all of the Assets, free and clear of all Liens, except for those items set forth on Schedule 4.6. Except as set forth in Schedule 4.6, the Assets are not leased, Seller has not granted to any Person the right to use, operate or own the Assets owned by the Companies or any portion thereof. There are no outstanding options, rights of first offer or rights of first refusal to purchase any of the Assets owned by any Company, or any portion thereof, or interest therein. The Assets of the Companies constitute all the Assets, tangible and intangible, of any nature whatsoever, necessary to operate the Businesses in the manner presently operated by the Companies and include all of the operating assets of the Companies."
"(u) neither Seller nor the Companies have received any written notice from any Governmental Body or any other Person regarding the ability of the Companies own or operate the Businesses or the Assets, or the intention of any Governmental Body to challenge or oppose the Buyers ownership or operation of the Businesses or the Assets;"
"(b) Schedule 4.11(b) contains copies of the following financial statements (collectively, the Financial Statements): (a) audited balance sheets and statements of income, changes in members equity, and cash flow as of and for the fiscal years ended December 31, 2015 (the Most Recent Fiscal Year End) for the Companies; and (b) unaudited balance sheets and statements of income, changes in stockholders equity, and cash flow (the Most Recent Financial Statements) as of and for the nine (9) months ended September 30, 2016 (the Most Recent Fiscal Month End), for the Companies. In addition, on or before Closing, Sellers will provide Buyer with the Closing Statement in accordance with Section 6.1(j). The Financial Statements (including the notes thereto) have been prepared in accordance with GAAP applied on a consistent basis throughout the periods covered thereby, present fairly in accordance with GAAP the financial condition of the Companies as of such dates and the results of operations of the Companies for such periods, are correct and complete in all material respects, and are consistent with the books and records of the Companies (which books and records are correct and complete in all material respects); provided, however, that the Most Recent Financial Statements are subject to normal year-end adjustments (which will not be material individually or in the aggregate) and lack footnotes and other presentation items."
"(a) Except as set forth in Schedule 4.14: (i) to the Knowledge of Seller, the Companies are, and at all times have been, in material compliance with each Legal Requirement that is or was applicable to it or to the conduct or operation of the Businesses or the ownership or use of any of their Assets, including the Properties; (ii) to the Knowledge of Seller, no event has occurred or circumstance exists that (with or without notice or lapse of time) (A) may constitute or result in a violation by any Company of, or a failure on the part of any Company to comply with, any material Legal Requirement, or (B) may give rise to any obligation on the part of any Company to undertake, or to bear all or any portion of the cost of, any Remedial Action of any nature; and (iii) neither the Seller nor the Companies have received any notice from any Governmental Body or any other Person regarding (A) any actual, alleged, possible or potential violation of, or failure to comply with, any Legal Requirement, or (B) any actual, alleged, possible or potential obligation on the part of the Company to undertake, or to bear all or any portion of the cost of, any Remedial Action of any nature."
"(iii) To the Knowledge of Seller, the operation of the Lunenburg Landfill does not violate the current zoning for the Lunenburg Property. The Petersburg Property is currently zoned (i) Ordinance 09-ORD-57 under Article 37, Municipal Solid Waste Landfill Uses, of the Petersburg Zoning Ordinance (Landfill); and (ii) M-2 Heavy Industrial District under Article 37, Municipal Solid Waste Landfill Uses, of the Petersburg Zoning Ordinance (350 Industrial Drive and 2053 North Factory Lane). To the Knowledge of Seller, the operation of the Transfer Station does not violate the current zoning for the Transfer Station Property. To the Knowledge of Seller, the operation of the Hauling Company does not violate the current zoning for the Hauling Company Property. To the Knowledge of Seller, there is no pending or anticipated change in any zoning or land use laws applicable to the Properties that will materially impair the development, construction, operation or use of any Property or any portion thereof as a municipal solid waste landfill, a municipal solid waste transfer station, or a Hauling Company Business, or otherwise as each Property is currently being used. The Seller has not received any notice of violation of any building, zoning, comprehensive planning, subdivision, health and safety and other land use laws, regulations, ordinances and rules affecting the Properties. To the Knowledge of Seller, the Properties are in compliance with all Legal Requirements, including all applicable building, zoning, comprehensive planning, subdivision, health and safety and other land use laws, regulations, ordinances and rules affecting the Properties (collectively, the Real Property Laws), and, to the Knowledge of Seller, the current use, operation and occupancy of the Properties, including the use, occupancy and operation of the Businesses, does not violate any Real Property Laws. The Seller has not received any written notice of violation of any Real Property Law."
"(d) Except as set forth on Schedule 4.18(d), there are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any material amounts paid or payable to the Companies under the Company Contracts Outside the Ordinary Course of Business with any Person having the contractual or statutory right to demand or require such renegotiation and no such Person has made written demand for such renegotiation."
"4.21 Employees. Schedule 4.21 sets forth for all employees of the Companies: the (i) name, (ii) job title, (iii) date of hiring or engagement, (iv) date of commencement of employment or engagement, (v) current or deferred compensation paid or payable, (vi) sick and vacation leave that is accrued but unused, (vii) service credited for purposes of vesting and eligibility to participate under any Employee Benefit Plan, or any other employee benefit plan and (viii) details of any material disciplinary problems within the past two (2) years. No retired employees of the Companies, or their dependents, are receiving benefits or are scheduled to receive benefits in the future from the Companies. To the Knowledge of Seller, no officer, director, agent, manager, employee, consultant, or independent contractor of the Companies is bound by any Contract that purports to limit the ability of such officer, director, manager, agent, employee, consultant, or independent contractor (a) to engage in or continue or perform any conduct, activity, duties or practice relating to the Businesses of the Companies or (b) to assign to the Companies or to any other Person any rights to any invention, improvement, or discovery used in the Businesses. To the Knowledge of Seller, no former or current officer, director, member, manager, agent, employee, consultant, or independent contractor of the Companies is a party to, or is otherwise bound by, any Contract that in any way adversely affected, affects, or will affect the ability of the Companies to conduct the Businesses as currently carried on by the Companies. Except as set forth on Schedule 4.22, all salaries, wages and other compensation and benefits payable to each officer, director, agent, manager, employee, consultant, or independent contractor of the Companies has been accrued and paid by the Companies when due for all periods through the Closing Date, or will have been paid by the Companies when due for all periods through the Closing Date. Except as set forth in Schedule 4.21, the employment of each employee who is employed by each Company can be terminated by the Companies upon not more than fourteen (14) days notice without severance, penalty or premium, other than payment of accrued salaries, wages and vacation benefits. Neither Seller nor any Company has violated the Worker Adjustment and Retraining Notification Act (the WARN Act) or any similar state or local Legal Requirement. Robert W. Guidry, Charles A. Wilcox, Timothy L. Webb, and A. Jeffrey Kraus are the only employees or individuals actively engaged in the fundamental operations of the Companies who own any interest in Guarantor."
"(c) The provisions of Section 5.5(b) will not apply to any Confidential Information (i) that the Seller can demonstrate with documentary evidence is generally known to, and available for use by, the public other than as a result of the Breach of this Agreement or, to the Knowledge of Seller, any other agreement pursuant to which any Person (including Seller or any Representative or Related Person thereof) owes any duty of confidentiality to the other Party or previously owed any duty of confidentiality to Buyer; (ii) that is required to be disclosed pursuant to Legal Requirement or an Order, or (iii) that the Seller can reasonably determine is necessary to be disclosed to a Representative of Seller in order for Seller to perform its covenants and obligations, or to enforce its rights against Buyer, under this Agreement or any related agreement (and then only to the extent necessary to perform such covenants and obligations or to enforce such rights). If Seller (including any Representative or Related Person thereof) becomes compelled by a Legal Requirement or any order to disclose any Confidential Information, Seller will provide Buyer with prompt written notice of such requirement so that Buyer may seek a protective order or other remedy in respect of such compelled disclosure. If such a protective order or other remedy is not obtained by or is not available to Buyer, then Seller will use reasonable efforts to ensure that only the minimum portion of such Confidential Information that is legally required to be disclosed is so disclosed, and Seller will use all reasonable efforts to obtain assurances that confidential treatment will be given to such Confidential Information. Seller acknowledge its responsibility to ensure that its Representatives and agents who are given, or now have, access to the Confidential Information will comply with the terms of this Section 5.5. Seller shall be liable for any Breach of this Agreement caused by its Representatives and agents."
"5.7 Employees. Subject to any employment agreements with employees of the Companies set forth in Schedule 5.7, Buyer shall, in its sole and absolute discretion, determine those employees that the Companies shall retain after Closing. Buyer shall be under no obligation to cause the Companies to retain any such employees on any terms or conditions other than such terms or conditions determined by Buyer, or to continue employment benefits or compensation other than as determined in the sole discretion of Buyer. Any employment will be at base salary or wage rates determined in the sole and absolute discretion of Buyer. The provision of any other compensation or employee benefits, including, without limitation, bonuses, commissions, health benefits or compensation plans, will be at Buyers sole discretion."
"(b) Seller will not, and will not cause or permit the Companies to, without Buyers prior Consent, voluntarily incur any obligation outside the Ordinary Course of Business or enter into any material transaction, contract, capital expenditure or commitment for which Buyer may have responsibility or obligation after Closing outside the Ordinary Course of Business."
"(e) Seller will not (a) solicit, initiate, or encourage the submission of any proposal or offer from any Person relating to the acquisition of the Membership Interests or any portion of the Assets, including the Properties, of the Companies (including any acquisition structured as a merger, consolidation, or share exchange) or (b) participate in any discussions or negotiations regarding, furnish any information with respect to, assist or participate in, or facilitate in any other manner any effort or attempt by any Person to do or seek any of the foregoing. Seller will not vote the equity interests in the Companies in favor of any such acquisition."
"(j) Buyer shall not perform, nor shall it authorize or allow any of its representatives, officers, directors, employees, or agents, or any of its shareholders owning more than five percent (5%) of the outstanding stock in Buyer, to perform, any acts or omissions to manipulate the price of Buyers common stock."
"(e) Seller may terminate this Agreement by giving written notice to Buyer at any time prior to the Closing (i) in the event Buyer has Breached any representation, warranty, or covenant contained in this Agreement in any respect, Seller has notified Buyer of the Breach, and the Breach has continued without cure for a period of ten (10) days after the notice of Breach; and"
"If any Party terminates this Agreement pursuant to this Section 5.11, all rights and obligations of the Parties hereunder shall terminate without any liability of any Party to any other Party (except for (i) any liability of any Party then in Breach, (ii) the obligations of the Parties pursuant to Section 5.5, and (iii) the obligations of Buyer pursuant to Section 5.2)."
"5.13 Guaranty. Waste Services Industries Holdings, LLC, a Delaware limited liability company (the Guarantor), joins in the execution of this Agreement for the purpose of guaranteeing the duties and obligations of Seller pursuant to this Agreement, including without limitations the obligations of Seller pursuant to Sections 7 and 8 of this Agreement, in each case subject to the terms of the applicable Section of this Agreement (collectively, the provisions of this Section 5.13 are referred to as the Guaranty): Without limiting the forgoing:"
"The legend set forth above shall be removed and the Buyer shall issue to the Seller a new certificate for the Purchase Price Shares free of any transfer legend upon the request of the Seller if the Buyer or its transfer agent shall have received an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that the one (1) year holding period under Rule 144 has expired, or that a public sale or transfer of the Purchase Price Shares otherwise may be made without registration under the Securities Act, which opinion shall be reasonably accepted by the Buyer so that the sale or transfer is effected. Any request as described in this paragraph shall be accompanied by the certificate or certificates representing the Purchase Price Shares."
"5.15 Sellers Right to Pursue Certain Litigation. Seller shall have the right to pursue, on its own behalf (including suits brought as the assignee of claims), litigation to recover damages in the litigation matter filed in the Circuit Court for the City of Petersburg, Virginia, Case No. CL16-207 (the Adenauer Litigation). At the request of Seller, Buyer will cause the Companies to assign to Seller all causes of action to recover damages due to the Adenauer Litigation. All expenses of any such litigation shall be borne solely by Seller and not by the Companies or Buyer."
"(a) The representations and warranties of Seller set forth in Sections 3 and 4 shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by terms such as material and Material Adverse Effect, in which case such representations and warranties shall be true and correct in all respects at and as of the Closing Date. Without limiting generality of the forgoing, all of the Assets, including all Tangible Personal Property, shall be collectively in substantially similar condition, use, operation and repair as of the date of any inspection by Buyer of such Assets and Tangible Personal Property, normal wear and tear excepted;"
"(a) the representations and warranties of Buyer set forth in Section 3.2 shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by terms such as material and Material Adverse Effect, in which case such representations and warranties shall be true and correct in all respects at and as of the Closing Date;"
"(b) Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by terms such as material and Material Adverse Effect, in which case Buyer shall have performed and complied with all of such covenants in all respects through the Closing;"
"(c) no action, suit, or proceeding shall be pending before any court or quasi- judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);"
"(a) any breach of, or any inaccuracy in, any representation or warranty made by Buyer (i) in this Agreement, (ii) the Schedules, (iii) the certificates delivered pursuant to Section 6 of this Agreement, or (iv) any other document, writing or instrument delivered by Buyer pursuant to Section 6 of this Agreement;"
"(i) any breach of, or any inaccuracy in, any representation or warranty made by Seller in (A) this Agreement, (B) the Schedules, (C) the certificates delivered pursuant to this Agreement, (D) any transfer instrument delivered by Seller pursuant to Section 6 of this Agreement, or (E) any other certificate, document, writing or instrument delivered by Seller pursuant to Section 6 of this Agreement;"
"(1) any Environmental, Health and Safety Liabilities arising out of or relating to (A) the conduct of any activity by Seller, the Companies, or their Related Persons, or any employee, contractor, agent or Representative thereof, or relating to the Businesses and Assets, including the Properties, of the Companies; or (B) any Hazardous Materials or other contaminants that were present on the Properties or Assets at any time on or prior to the Closing Date; or"
"provided, however, that with respect to any such indemnification claim made under Section 7.3(a)(ii) regarding Sellers breach of, or failure to perform or comply with, any obligation hereunder or under any related agreement that is intended to survive and continue after the Closing, the Buyer Claims Period will continue for as long as such obligation is outstanding (other than any breach of, or failure to perform or comply with, any covenant, obligation or agreement of Seller contained in Section 8, which are subject to Section 8)."
"(d) With respect to any Third-Party Claim subject to indemnification under this Section 7: (i) both the Indemnified Person and the Indemnifying Person, as the case may be, shall keep the other Person fully informed of the status of such Third-Party Claim and any related Proceedings at all stages thereof where such Person is not represented by its own counsel; and (ii) the parties agree (each at its own expense) to render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third- Party Claim."
"8.1 Tax Indemnification. Seller shall indemnify the Companies, Buyer, and each Related Person of Buyer and hold them harmless from and against, without duplication, any loss, claim, liability, expense, or other damage attributable to (a) any breach of, or any inaccuracy in, any representation or warranty contained in Sections 4.15, (b) all Taxes (or the non-payment thereof) of the Companies for all Taxable periods ending on or before the Closing Date and the portion of any Straddle Period (as defined below) through the end of the Closing Date (Pre-Closing Tax Period), and (c) any and all Taxes of any Person (other than the Company) imposed on the Companies as a transferee or successor, by contract or pursuant to any law, rule, or regulation, which Taxes relate to an event or transaction occurring before the Closing. Notwithstanding the forgoing, Seller shall not be responsible for indemnification of any loss, claim, liability, expense, or other damage attributable to a filing, settlement or other action taken by Buyer without the written Consent of Seller. Seller shall reimburse Buyer for any Taxes of the Companies which are the responsibility of Seller or the Companies pursuant to this Section 8.1 within fifteen (15) business days after payment of such Taxes by Buyer or the applicable Company. Buyer shall indemnify Seller and hold it harmless from and against any loss, claim, liability, expense or other damage attributable to Buyers failure to timely file complete and accurate Tax Returns pursuant to Section 8.3. Buyer and the Companies shall indemnify Seller, and each Related Person of Seller and hold them harmless from and against, without duplication, any loss, claim, liability, expense, or other damage attributable to (a) any breach of, or any inaccuracy in, any representation or warranty contained in Sections 3.2(e), (b) all Taxes (or the non-payment thereof) of the Companies for all Taxable periods ending after the Closing Date and the portion of any Straddle Period following the Closing Date, and (c) any and all Taxes of any Person (other than the Company) imposed on the Companies as a transferee or successor, by contract or pursuant to any law, rule, or regulation, which Taxes relate to an event or transaction occurring after the Closing."
"8.2 Straddle Period. In the case of any Taxable period that includes (but does not end on) the Closing Date (a Straddle Period), the amount of any Taxes based on or measured by income or receipts of the applicable Company for the Pre-Closing Tax Period shall be determined based on an interim closing of the books as of the close of business on the Closing Date and the amount of other Taxes of the applicable Company for a Straddle Period which relate to the Pre- Closing Tax Period shall be deemed to be the amount of such Tax for the entire Taxable period multiplied by a fraction the numerator of which is the number of days in the Taxable period ending on the Closing Date and the denominator of which is the number of days in such Straddle Period."
"(a) Buyer and its Related Persons and Seller and its Related Persons shall cooperate fully, as and to the extent reasonably requested by the other Party, in connection with the filing of Tax Returns pursuant to Section 8.3 and any audit, litigation or other proceeding with respect to Taxes. Such cooperation shall include the retention and (upon the other Partys request) the provision of records and information which are reasonably relevant to any such audit, litigation or other proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Buyer (and Buyer shall cause the Companies) and Seller agree (i) to retain all books and records with respect to Tax matters pertinent to the Companies relating to any taxable period beginning before the Closing Date until the expiration of the statute of limitations (and, to the extent notified by Buyer or Seller, any extensions thereof) of the respective taxable periods, and to abide by all record retention agreements entered into with any taxing authority, and (ii) to give the other Party reasonable written notice prior to transferring, destroying or discarding any such books and records and, if the other Party so requests, Seller and Buyer shall cause the Companies to, as the case may be, and shall allow the other Party to take possession of such books and records."
"8.7 Refunds and Tax Benefits. Any Tax refunds that are received by Buyer or the Companies, and any amounts credited against Tax to which the Buyer or the Companies become entitled, that relate to Pre-Closing Tax Periods shall be for the account of the Seller, and, so long as no default or deficiency is then due from Seller to Buyer under Section 7 and Section 8, Buyer shall pay over to Seller any such refund or the amount of any such credit within fifteen (15) days after receipt or entitlement thereto."
"Governmental Body means any (i) nation, state, county, city, town, borough, village, district or other jurisdiction, (ii) federal, state, county, local, municipal, foreign or other government, (iii) governmental or quasi- governmental authority of any nature (including any agency, branch, department, board, commission, court, tribunal or other entity exercising governmental or quasi-governmental powers), (iv) body exercising, or entitled or purporting to exercise, any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power, (v) Indian tribal authority, (vi) multinational organization or body, or (vii) official of any of the foregoing."
"Hazardous Activity means, with respect to any Person (including any Party or the Companies or their Related Persons), the distribution, generation, handling, importing, management, manufacturing, processing, production, refinement, Release, storage, transfer, transportation, treatment or use (including any withdrawal or other use of groundwater) of Hazardous Material in, on, under, about or from any Property or other facility or real property owned, leased, operated or otherwise used by such Person or any of its contractors in connection with the conduct of the business of such Person, or from any other asset of such Person, into the Environment and any other act, business, operation or thing that increases the danger, or risk of danger, or poses an unreasonable risk of harm, to persons or property, whether on or off the aforementioned Properties, facilities or other real property, beyond what is authorized by any Environmental Law relating to the business of such Person."
"Hazardous Material means any substance or material which is or will foreseeably be regulated by any Governmental Body, including any material or substance which is defined as a hazardous waste, hazardous material, hazardous substance, extremely hazardous waste, restricted hazardous waste, toxic waste or toxic substance under any provision of Environmental Law, and including petroleum, petroleum products, asbestos, presumed asbestos-containing material or asbestos-containing material, urea formaldehyde and polychlorinated biphenyls."
"Improvements means all buildings, structures, fixtures, building systems and equipment, and all components thereof, including the roof, foundation, load- bearing walls, and other structural elements thereof, heating, ventilation, air conditioning, mechanical, electrical, plumbing and other building systems, environmental control, remediation and abatement systems, sewer, storm, and waste water systems, irrigation and other water distribution systems, parking facilities, fire protection, security and surveillance systems, and telecommunications, computer, wiring, and cable installations, all of which are included in the Properties."
"(i) when used to qualify a representation, warranty or other statement of Buyer, the actual knowledge that management (consisting of Buyers officers and directors) of the Buyer actually has with respect to the particular fact or matter that is the subject of such representation, warranty or other statement, and the knowledge that the management of the Buyer 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."
"Lien means with respect to any Person, any mortgage, right of way, easement, encroachment, any restriction on use, servitude, pledge, lien, charge, hypothecation, security interest, encumbrance, adverse right, interest or claim, community or other marital property interest, condition, equitable interest, encumbrance, license, covenant, title defect, option, or right of first refusal or offer or similar restriction, voting right, transfer, receipt of income or exercise of any other attribute of ownership, except for any liens for taxes not yet due or delinquent or being contested in good faith by appropriate proceedings for which adequate reserves have been established and accrued on the financial statements of such Person in accordance with GAAP."
"Material Adverse Effect or Material Adverse Change means any effect or change that would be materially adverse to the Businesses, Assets, condition (financial or otherwise), operating results, or operations of the Companies, taken as a whole, including the ability for the Companies to own, construct, operate and develop the Assets and the, the transfer or issuance to any Company, if applicable, of any Permit, Consent, Governmental Authorization, license or other permit or approval contemplated by this Agreement, or on the ability of Seller consummate timely the Contemplated Transactions (regardless of whether or not such adverse effect or change can be or has been cured at any time or whether Buyer has knowledge of such effect or change on the date hereof), provided, however, that Material Adverse Effect shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which any of the Companies operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 3.5, Section 4.3 and Section 6.1; (vi) any changes in applicable Legal Requirements or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on any Company compared to other participants in the industries in which such Company conducts its businesses."
"Organizational Documents means: (i) with respect to a corporation, the certificate or articles of incorporation and bylaws; (ii) with respect to any other Person any charter or similar document adopted or filed in connection with the creation, formation or organization of a Person; (iii) any operating agreement, partnership agreement, shareholder agreement or similar agreement and (iv) any amendment to any of the foregoing."
"Remedial Action means all actions, including any capital expenditures, required or voluntarily undertaken (i) to clean up, remove, treat or in any other way address any Hazardous Material or other substance, (ii) to prevent the Release or Threat of Release or to minimize the further Release of any Hazardous Material or other substance so it does not migrate or endanger or threaten to endanger public health or welfare or the Environment, (iii) to perform pre-remedial studies and investigations or post-remedial monitoring and care, or (iv) to bring the Properties and the operations conducted (or to be conducted) thereon into compliance with Environmental Laws and environmental Governmental Authorizations."
"2.20 Knowledge of the Company or words to that effect means the actual knowledge of any of the following Persons: Lester Brafman, Joseph W. Pooler,Jr., Rachael Fink and Douglas Listman; provided, that for purposes of this definition such Persons shall be deemed to have actual knowledge of facts that would be reasonably expected to come to the attention of such Person in performing his or her duties in accordance with the Companys or any relevant Subsidiarys ordinary management practices."
"2.36 Subsidiary means any corporation, association trust, limited liability company, partnership, joint venture or other business association or entity (i)at least 50% of the outstanding voting securities of which are at the time owned or controlled directly or indirectly by the Company or (ii)with respect to which the Company possesses, directly or indirectly, the power to direct or cause the direction of the affairs or management of such Person. Notwithstanding the foregoing, Cohen Legacy, LLC shall not be considered a Subsidiary for purposes of this Agreement."
"5.1 Organization and Qualification. The Company is an entity duly organized, validly existing and in good standing under the laws of the State of Delaware, with the requisite power and authority to own or lease and use its properties and Assets and to carry on its business as currently conducted and as currently proposed to be conducted. The Company is not in violation of any of the provisions of the Certificate of Formation, as amended and as in effect on the Effective Date (the Certificate of Formation) or the LLC Agreement. The Company is duly qualified to conduct business and is in good standing as a foreign corporation 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 have, individually or in the aggregate, a Material Adverse Effect, and no Proceeding has been instituted, is pending, or, to the Knowledge of the Company, is threatened in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification."
"5.8 Absence of Litigation. Except as otherwise disclosed to Buyer in writing on or prior to the date hereof or as would not reasonably be expected to have a Material Adverse Effect, (i)there is no Proceeding before or by any Governmental Authority or any other Person, pending, or to the Knowledge of the Company, threatened or contemplated by, against or affecting the Company or any Subsidiary or their Assets; and (ii)there are no outstanding Judgments against or affecting the Company, any Subsidiary or their Assets."
5.12 Acknowledgment Regarding Buyers Purchase of the Securities. The Company acknowledges and agrees that Buyer is acting solely in the capacity of an arms length purchaser with respect to this Agreement and the transactions contemplated hereby. The Company further acknowledges that Buyer is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement and the transactions contemplated hereby and any advice given by Buyer or any of its representatives or agents in connection with this Agreement and the transactions contemplated hereby is merely incidental to Buyers purchase of the Note. The Company further represents to Buyer that the Companys decision to enter into this Agreement has been based solely on the independent evaluation by the Company and its representatives.
"6.2 Listing and Maintenance Requirements; SEC Documents. The Common Stock is registered pursuant to Section12(b)of the Exchange Act, and the Parent has taken no action designed to, or that is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act, nor has the Parent received any notification that the SEC is contemplating terminating such registration. The Parent has filed all reports, schedules, forms, statements and other documents, together with any amendments thereto, required to be filed by it with the SEC under the Exchange Act (all of the foregoing filed within the two (2)years preceding the Effective Date and all exhibits included therein and financial statements and schedules thereto and documents incorporated by reference therein, being hereinafter referred to as the SEC Documents). The Parent is current with its filing obligations under the Exchange Act and there are no outstanding comments from the SEC with respect to any report, schedule, form, statement and other document required to be filed by it with the SEC under the Exchange Act. True and complete copies of the SEC Documents are available on the SECs website (www.sec.gov) at no charge. As of their respective dates, the SEC Documents complied in all material respects with the applicable requirements of the Exchange Act, and none of the SEC Documents, at the time they were filed with or furnished to 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."
"6.4 Compliance with Laws. The Parent (i)is in material compliance with all applicable Laws and Judgments; (ii)to the knowledge of the Parent, have all material Permits and such Permits are in full force and effect and no material suspension or cancellation of any of them is threatened; and (iii)to the Knowledge of the Company, is not under investigation with respect to, and has not been threatened to be charged with or given notice of, any material violation of all applicable Laws and Judgments."
"6.6 Authorization; Enforcement; Validity. The Parent has the requisite corporate power and authority to enter into and to consummate the transactions binding upon it contemplated by this Agreement and by each of the Transaction Documents to which it is a party and otherwise to carry out its obligations hereunder and thereunder. The execution, delivery and performance by the Parent of this Agreement and of each of the Transaction Documents to which it is a party and the consummation by it of the transactions contemplated hereby and thereby (including, but not limited to, the covenants binding upon it in ArticleVII hereof) have been duly authorized by all corporate action on the part of the Parent in connection herewith and therewith."
"7.5 Stockholder Meeting and Parent Proxy Statement. At the 2017 annual meeting of the Parents stockholders (the 2017 Annual Meeting of Stockholders), Parent shall cause its stockholders to vote on, among other things, proposals (collectively, the Stockholder Proposal) regarding the issuance of the Conversion Shares for purposes of Section713 of the NYSE MKTs Company Guide, as applicable. The Board of Directors shall recommend to the Parents stockholders that such stockholders approve the Stockholder Proposal, and shall not modify or withdraw such resolution. In connection with the 2017 Annual Meeting of Stockholders, Parent shall promptly prepare and file with the SEC a Definitive Proxy Statement on Schedule 14A pursuant to Section14(a)of the Exchange Act (the Parent Proxy Statement), use its reasonable best efforts to solicit proxies for such stockholder approval and to respond to any comments of the SEC or its staff and mail a definitive proxy statement related the 2017 Annual Meeting of Stockholders to the Parents stockholders promptly after clearance by the SEC. The Parent shall notify Buyer promptly of the receipt by Parent of any comments from the SEC or its staff with respect to the Parent Proxy Statement and of any request by the SEC or its staff for amendments or supplements to such proxy statement or for additional information and shall supply Buyer with copies of all correspondence between the Parent or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to such proxy statement. If at any time prior to the 2017 Annual Meeting of Stockholders there shall occur any event that is required to be set forth in an amendment or supplement to the Parent Proxy Statement, the Parent shall promptly prepare and mail to its stockholders such an"
"amendment or supplement. The Parent shall promptly correct any information provided by it or on its behalf for use in the Parent Proxy Statement if and to the extent that such information shall have become false or misleading in any material respect, and the Parent shall promptly prepare and mail to its stockholders an amendment or supplement to correct such information to the extent required by applicable Laws. The Parent shall consult with Buyer prior to Parent mailing the Parent Proxy Statement, or any amendment or supplement thereto, and provide Buyer with reasonable opportunity to comment thereon. The Board of Directors recommendation described in this Section7.5 shall be included in the Parent Proxy Statement."
"9.2 Interpretation. In this Agreement, unless the express context otherwise requires: (i)the words herein, hereof and hereunder and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement; (ii)references to the words Article or Section refer to the respective Articles and Sections of this Agreement, and references to Exhibit or Schedule refer to the respective Exhibits and Schedules annexed hereto; (iii)references to a party mean a party to this Agreement and include references to such partys permitted successors and permitted assigns; (iv)references to a third party mean a Person not a party to this Agreement; (v)the terms dollars and $ mean U.S. dollars; (vi)wherever the word include, includes or including is used in this Agreement, it will be deemed to be followed by the words without limitation."
"of same in a regularly maintained receptacle of such overnight courier; or (iii)if hand delivered, then upon hand delivery thereof to the address indicated on or prior to 5:00 p.m., New York City time, on a business day. Any notice hand delivered after 5:00 p.m.New York City time, shall be deemed delivered on the following business day. Notwithstanding the foregoing, notices, consents, waivers or other communications referred to in this Agreement may be sent by facsimile, e-mail, or other method of delivery, but shall be deemed to have been delivered only when the sending party has confirmed (by reply e-mail or some other form of written confirmation from the receiving party) that the notice has been received by the other party."
"9.8 No Waiver. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. No waiver of any provision of this Agreement shall be effective, unless it is in writing and signed by the party against whom it is asserted, and any such written waiver shall only be applicable to the specific instance to which it relates and shall not be deemed to be a continuing or future waiver."
"9.18 No Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except that the provisions of ArticleVIII are intended for the benefit of the Persons referred to in that Article."
"2. Conversion. At any time following the date hereof (including, for the avoidance of doubt, at any time prior to 5:00 p.m.(ET) on the business day prior to the Maturity Date), the Holder shall have the right, in the Holders sole discretion, to convert all or any part of the Outstanding Amount of this Note (the Conversion), without the payment of any additional consideration therefor, into the number of fully paid and nonassessable LLC Units that is determined by dividing (i)the portion of the Outstanding Amount being converted by (ii)$1.45 (the Conversion Price). The Conversion Price is subject to adjustment if the Company, at any time while this Note is outstanding: (i)pays a dividend of LLC Units or otherwise makes a distribution or distributions on LLC Units or any other equity or equity equivalent securities payable in LLC Units (which, for avoidance of doubt, shall not include any LLC Units issued by the Company upon conversion of this Note), (ii)subdivides outstanding LLC Units into a larger number of units, (iii)combines (including by way of reverse split) outstanding LLC Units into a smaller number of units, (iv)issues by reclassification of LLC Units any LLC Units of the Company or (v)takes any similar action or any action designed to have a similar effect, then in each case the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of LLC Units (excluding LLC Units held in treasury, if any) outstanding immediately before such event and of which the denominator shall be the number of LLC Units outstanding immediately after such event, and the number of LLC Units issuable upon Conversion shall be proportionately adjusted such that the aggregate Conversion Price of this Note shall remain unchanged. Any adjustment made pursuant to this Section2 shall become effective immediately after the record date for the determination of members entitled to participate in such event described in clauses (i)through (v)and shall become effective immediately after the effective date in the case of a subdivision, combination, reclassification or similar action. Whenever the Conversion Price is adjusted pursuant to this Section2, the Company shall promptly notify the Holder, in accordance with the Purchase Agreement, of the Conversion Price after such adjustment, any resulting adjustment to the number of LLC Units issuable upon Conversion and a brief statement of the facts requiring such adjustment."
"(d) Upon issuance of LLC Units in respect of a Conversion of the entire Outstanding Amount or, in the case of a partial Conversion of this Note, upon issuance of LLC Units and a Replacement Note in respect of such partial Conversion, all rights with respect to this Note shall terminate, whether or not this Note has been surrendered for cancellation. The Holder shall be treated for all purposes as the record holder of LLC Units issued upon Conversion."
"purpose in the name of the Holder. The Holder hereby affirms that the proxy set forth in this Section6 is given in connection with, and in consideration of, this Note. The Holder hereby further affirms that this proxy is coupled with an interest and may not be revoked unless otherwise terminated by the mutual consent of the Holder and the Parent. The Holder hereby ratifies and confirms all that the proxy and attorney-in-fact appointed pursuant to this Section6 may lawfully do or cause to be done by virtue hereof. Notwithstanding anything to the contrary herein, upon the earlier to occur of a Notice Default and an Automatic Default, the proxy shall, without further action by any party, be automatically revoked."
"Person: (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 current accounts payable and accrued expenses incurred in the ordinary course of business irrespective of when paid); (c)all obligations of such Person evidenced by bonds, debentures, notes, loan agreements, credit agreements or other similar instruments; (d)all obligations and liabilities of such Person created or arising under any conditional sales or other title retention agreements with respect to property used and/or acquired by such Person; (e)all capitalized lease obligations of such Person; (f)all aggregate mark-to-market exposure of such Person under hedging agreements; (g)all obligations in respect of letters of credit (whether drawn or supporting obligations that constitute Indebtedness) and bankers acceptances; (h)all obligations referred to in clauses (a)through (g)of this definition of another Person guaranteed by the specified Person or secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) an Encumbrance upon property owned by the specified Person, whether or not the specified Person has assumed or become liable for the payment of such Indebtedness."
"Upon the occurrence or existence of any Event of Default described in clause (a), clause (b), clause (e), clause (f)or clause (g)above and at any time thereafter during the continuance of such Event of Default, the Noteholder may, by written notice to the Company, declare a default under the Note (a Notice Default), whereupon the entire unpaid principal amount outstanding and all interest accrued and unpaid on the Note to be immediately due and payable."
"(g) The Company agrees to pay up to $15,000 of Holders legal fees and expenses in connection with the negotiation of this Note and the Purchase Agreement, and to pay all reasonable costs and expenses actually incurred by the Holder in connection with an Event of Default, including without limitation the fees and disbursements of counsel, advisors, consultants, examiners and appraisers for the Holder, in connection with (i)any enforcement (whether through negotiations, legal process or otherwise) of this Note in connection with such Event of Default, (ii)any workout or restructuring of this Note during the pendency of such Event of Default and (iii)any bankruptcy case or proceeding of the Company or any appeal thereof."
"Section6.13 Special Proxy Regarding Convertible Secured Note. If following any conversion of all or any part of the Convertible Secured Note as provided therein, the Parent owns a number of Units representing less than a majority of the votes entitled to be cast at any Meeting, then for so long as the Parent owns a number of Units representing less than a majority of the votes entitled to be cast at any Meeting, each holder of any Units issued as a result of the conversion of the Convertible Secured Note (regardless of how such Units were acquired by such holder) hereby grants to and appoints the Parent as such holders proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of each such holder, to vote at any Meeting the number of Units (the Proxy Units) owned by each such holder as of the record date of such Meeting equal to (i)the Additional Units or (ii)if such holder holds less than a number of Units equal to the Additional Units, all such holders Units. Such attorney-in-fact may evidence the taking of any action, giving of any consent or the voting of such Proxy Units by the execution of any document or instrument for such purpose in the name of such holder. Each such holder hereby affirms that the proxy set forth in this Section6.13 is given in connection with, and in consideration of, the Convertible Secured Note and/or in connection with the acquisition of any Units issued as a result of the conversion of such Convertible Secured Note. Each such holder hereby further affirms that this proxy is coupled with an interest and may not be revoked unless otherwise terminated by the mutual consent of each such holder and the Parent. Each such holder hereby ratifies and confirms all that the proxy and attorney-in-fact appointed pursuant to this Section6.13 may lawfully do or cause to be done by virtue hereof. Notwithstanding anything to the contrary herein, upon the earlier to occur of a Notice Default and an Automatic Default (each as defined in the Convertible Secured Note), the proxy shall, without further action by any party, be automatically revoked."
"These Disclosure Schedules (these Disclosure Schedules) are being delivered pursuant to the Securities Purchase Agreement (the Purchase Agreement), dated as of March10, 2017, by and among IFMI, LLC, a Delaware limited liability company (the Company), DGC Family Fintech Trust, a trust established by Daniel G. Cohen, and solely for purposes of ArticleVI and Sections 7.3, 7.4, 7.5 and 7.6 thereof,Institutional Financial Markets,Inc., a Maryland corporation (the Parent). Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to such terms in the Purchase Agreement."
"(1) Substantially all of these assets serve as collateral for our securities financing transactions and margin loan payable at J.V.B. Financial Group, LLC, the Companys broker-dealer subsidiary registered with the Securities and Exchange Commission (SEC) and a member of the Financial Industry Regulatory Authority (FINRA). Like assets in the future will continue to serve as collateral."
"(b) Delivery. The sale and purchase of the Note shall take place at a closing (the Closing) to be held at such place and time as the Company and the Investors may determine following satisfaction or waiver of the conditions set forth herein (the Closing Date). At the Closing, the Company will deliver to each Investor a Note against receipt by the Company of the Purchase Price in immediately available funds."
"(c) Enforceability. The Loan Documents have been duly executed and delivered by the Company and constitute, or will constitute, a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with their terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors rights generally and general principles of equity."
"(a) Binding Obligation. Investor has full legal capacity, power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The Loan Documents constitute valid and binding obligations of Investor, enforceable in accordance with their terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors rights generally and general principles of equity."
" | INVESTORS: ---|---  |  |   | The Musculoskeletal Transplant Foundation  | Name of Investor  |  |   | By: |   | Name: |   | Title: |   |  |   | Hankey Capital, LLC  | Name of Investor  |  |   | By: |   | Name: |   | Title: |   |  |   | COMPANY:  |  |   | Bone Biologics Corporation  |  |   | By: |   | Name: |   |  | Authorized Signatory  | Title: |  "
"IV. | Representations and Warranties of Buyer | 12 ---|---|---  | 4.1 | Organization | 12  | 4.2 | Authorization | 12  | 4.3 | No Adverse Consequences | 12  | 4.4 | No Conflicts | 12  | 4.5 | Filings, Consents and Approvals | 13  | 4.6 | Issuance of the Securities | 13  | 4.7 | SEC Reports, Financial Statements | 13  | 4.8 | Litigation | 13  | 4.9 | Absence of Certain Changes | 13  | 4.10 | Compliance with Laws | 14 V. | Closing | 14  | 5.1 | Sellers Deliverables | 14  | 5.2 | Buyers Deliverables | 15  | 5.3 | Closing into Escrow | 15 VI. | Additional Covenants | 15  | 6.1 | Taxes and Liabilities | 15  | 6.2 | Further Assurances | 15  | 6.3 | Transfer of Title | 15  | 6.4 | Obligations with Respect to Employment Contracts and Consulting Agreements Assigned to Buyer | 16  | 6.5 | Financial Statements | 16  | 6.6 | Licenses and Permits | 16  | 6.7 | Payment of Additional Buyer Consideration | 16  | 6.8 | Qualification of Buyer as an Operator | 16 VII. | Indemnification, Survival | 16  | 7.1a | Indemnification by Seller | 16  | 7.1b | Indemnification by Buyer | 16  | 7.2 | Defense of Third Party Claims | 17  | 7.3 | Indemnification Procedure | 17  | 7.4 | Limits on Indemnification | 17  | 7.5 | Survival | 18 VIII. | Miscellaneous Provisions | 18  | 8.1 | Amendment | 18  | 8.2 | Waiver | 18  | 8.3 | Benefit | 18  | 8.4 | Costs and Expenses | 18  | 8.5 | Attorneys Fees | 18 ii ---  --- "
"Excluded Liabilities. Notwithstanding any disclosures made to the Buyer or its agents in the conduct of their due diligence investigations of the Seller or anything herein to the contrary, the Buyer shall not assume any of the liabilities or obligations of the Seller other than the Assumed Liabilities, and the Buyer shall not be or become liable for any claims, demands, liabilities or obligations of the Seller other than the Assumed Liabilities. Without limiting the foregoing, the Buyer shall not assume or agree to perform, pay or discharge, and the Seller shall remain unconditionally liable for and shall pay and satisfy in due course, all obligations, liabilities and commitments, fixed or contingent, known or unknown, accrued or unaccrued, direct or indirect, choate or inchoate, perfected or unperfected, liquidated or unliquidated, of the Seller other than the Assumed Liabilities (the Excluded Liabilities), including but not limited to the following:"
"any Liabilities not arising under the Purchased Assets (i) which are not validly and effectively assigned to (and expressly assumed by) Buyer pursuant to this Agreement, (ii) which do not conform to the representations and warranties with respect thereto contained in this Agreement, or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of a Contract or other of its obligations prior to the Closing;"
"Title to and Condition of Acquired Assets. Seller has good, marketable and assignable title to and/or interest in the Acquired Assets, free and clear of any and all Liens, other than (i) statutory Liens for current Taxes, assessments or other governmental charges not yet due and payable or the amount or validity of which is being contested in good faith by appropriate proceedings; and (ii) Liens as described on Schedule 3.6. Other than as described on Schedule 3.6, at Closing none of the Acquired Assets will be subject to any restrictions with respect to the transferability thereof, Buyers title thereto will not be affected in any way by the transactions contemplated hereby, and there will be no Liens on any of the Acquired Assets. With respect to the Acquired Assets set forth in Exhibit A relating to oil and gas prospects and interests, the Seller represents as follows: (i) with respect to the Bayou Bouillon Project (as referenced in Exhibit A), the Sellers ownership interests consist of opportunity rights arising out of a letter of intent dated November 1, 2016 by and between Seller and Thyssen Petroleum USA, LLC to acquire working interest in certain prospects that Buyer has been negotiating; (ii) with respect to the Ray Field and the West Tuleta Field (both as referenced in Exhibit A), the Seller is assigning to Buyer a 50% working interest in the undrilled acreage under leases owned by Seller as further identified in Exhibit A; (iii) with respect to the Wilinda Project (as referenced in Exhibit A), the Sellers ownership interests consist of opportunity rights to acquire working interests in certain prospects that Seller has negotiated; and (iv) with respect to Magens Bay Project (as referenced in Exhibit A), the Sellers ownership interests consists of the use and license rights to the 85 square mile Magens Bay 3-D seismic survey and opportxz unity rights to acquire working interest in certain prospects that Seller has generated and is now negotiating. With respect to the oil and gas leases that Seller owns with respect to the Ray Field and West Tuleta Field, the leases are enforceable obligations of the lessors, the Seller is in material compliance with such leases, the Seller has not been informed by (or have knowledge of) any lessor or any third party of an adverse claim or a violation of any Environmental Law or non-compliance with any Governmental or Regulatory Authority, and holds a valid leasehold interest free of any Lien. The Sellers tangible property and assets are in good condition, except for ordinary wear and tear, and are suitable for their intended purposes. Seller believes that the Buyer will be able to enter into appropriate farm-out, participation or other arrangements with respect to the opportunity rights being transferred hereunder with respect to oil and gas prospects set forth in Exhibit A."
"The Seller represents that (i) the Seller was contacted regarding the sale of the Securities by the Buyer, and (ii) no Securities were offered or sold to it by means of any form of general solicitation or general advertising, and in connection therewith, the Seller did not (A) receive or review any advertisement, article, notice or other communication published in a newspaper or magazine or similar media or broadcast over television or radio, whether closed circuit, or generally available; or (B) attend any seminar meeting or industry investor conference whose attendees were invited by any general solicitation or general advertising."
"The Seller understands that the Securities are being offered and sold in reliance on specific exemptions from the registration requirements of federal and state securities laws and that the Buyer and the principals and controlling persons thereof are relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments, and understandings set forth herein in order to determine the applicability of such exemptions and the undersigneds suitability to acquire Securities."
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE ACT) OR ANY STATE SECURITIES OR BLUE SKY LAWS, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT, OR UNLESS THE BUYER HAS RECEIVED AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE BUYER AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED."
"either alone or with the giving of notice or the passage of time or both, conflict with, constitute grounds for termination or acceleration of, result in the breach of the terms, conditions or provisions of, result in the loss of any benefit to Buyer under or constitute a default under any material agreement, instrument, license or permit to which either Buyer is a party or by which it is bound, except for such termination, acceleration, breach, loss or default that would not have a Material Adverse Effect on Buyers ability to consummate the transactions contemplated hereby."
"Financial Statements. In the event that Buyer is required to prepare audited financial statements with respect to the Acquired Assets, Seller agrees to cooperate with Buyer in preparing and providing the necessary financial data in order to assist Buyer in preparing such audited and pro-forma financial statements to be filed with the SEC pursuant to Form 8-K."
"Procedure. Promptly after receipt by the indemnified party of notice of any action, suit, proceeding, audit, claim or potential claim (any of which is hereinafter individually referred to as a Circumstance), which could give rise to a right to indemnification pursuant to Section 7.1 or 7.2, the indemnified party shall give the indemnifying party written notice describing the Circumstance in reasonable detail; provided, that failure of indemnified party to give such notice to the indemnifying party shall not relieve the indemnifying party from any of its indemnification obligations hereunder unless (and then only to the extent) that the failure to give such notice prejudices the indemnifying party or the defense of the Circumstance by the indemnifying party. Indemnifying party shall pay such obligation and assume such Liability in full within twenty (20) days of the date indemnified party provides written notice of the Circumstance, unless indemnifying party disputes such Circumstance or its obligation to indemnify the indemnified party in connection with such Circumstance in writing within twenty (20) days from the date of written notice of such Circumstance provided to indemnifying party. If the indemnifying party timely delivers such a written objection to the indemnified party, the indemnified party and the indemnifying party shall use commercially reasonable efforts to resolve any such objections, but if a final resolution is not obtained within twenty (20) days after the receipt of the written objections, the indemnified party and the indemnifying party shall submit the matter to binding arbitration pursuant to paragraph (b) of this Section, unless they mutually agree to extend their negotiations."
"Limits on Indemnification. In no event shall either Buyers or Sellers aggregate Liabilities for all claims for indemnification hereunder exceed $200,000. Notwithstanding anything herein to the contrary, in no event shall either Buyer or Seller have any liability or obligation to indemnify the other hereunder unless and until the aggregate value of all liabilities incurred by the party for which indemnification hereunder is sought exceeds an amount equal to Twenty Thousand Dollars ($20,000), and then only to the extent of such excess. Notwithstanding anything in this Agreement to the contrary, the Liabilities of either Buyer or Seller in connection with any of its indemnification obligations hereunder shall be reduced on a dollar for dollar basis by any insurance proceeds actually received by the indemnified party with respect to such Liabilities. Notwithstanding anything herein to the contrary, in no event shall either Buyer or Seller be obligated to indemnify any Person hereunder for any punitive or consequential damages."
"Attorneys Fees. Except as otherwise expressly provided in this Agreement, if any action or proceeding is commenced by either party to enforce their rights under this Agreement or to collect damages as a result of the breach of any of the provisions of this Agreement, the prevailing party in such action or proceeding, including any bankruptcy, insolvency or appellate proceedings, shall be entitled to recover all reasonable costs and expenses, including, without limitation, reasonable attorneys fees and court costs, in addition to any other relief awarded by the court."
"Entire Agreement: This Agreement and the Schedules, exhibits, index of defined terms, and certificates referred to herein or attached hereto embody the entire agreement and understanding of the parties with respect to the transactions contemplated by this Agreement and supersede all prior agreements and understandings relating to matters provided for herein."
"Independent Counsel. Buyer and Seller each acknowledge that: (a)they have been represented by independent counsel in connection with this Agreement, (b)they have executed this Agreement with the advice of such counsel, and (c)this Agreement is the result of negotiations between the parties hereto and the advice and assistance of their respective counsel."
"Affiliate means any Person that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the Person specified. For purposes of this definition, control of a Person means the power, direct or indirect, to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise."
"c)Closing Date. Subject to the satisfaction (or written waiver) of the conditions thereto set forth in Section 6 and Section 7 below, the closing of the transactions contemplated by this Agreement (the Closing) shall occur on the first business day following the date hereof or such other mutually agreed upon time (the Closing Date) at the offices of Purchasers counsel."
"f)Transfer or Re-sale. The Purchaser 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) the Purchaser shall have delivered to the Company 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, which opinion shall be reasonably acceptable to 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 Purchaser 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) and the Purchaser shall have delivered to the Company an opinion of counsel reasonably acceptable to the Company relating to such Regulation S; (ii) any sale of such Securities made in reliance on Rule 144 may be made only in accordance with the terms of such Rule and further, if such 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."
"c)Capitalization. As of the date hereof, the authorized capital stock of the Company, and number of shares issued and outstanding, is as set forth in the Companys most recent periodic report filed with the SEC. Except as disclosed on Schedule 3(c) hereof, no shares are reserved for issuance pursuant to the Companys stock option plans. Except as disclosed in the SEC Documents no shares are reserved for issuance pursuant to securities exercisable for, or convertible into or exchangeable for shares of Common Stock. All of such outstanding shares of capital stock are, or upon issuance will be, duly authorized, validly issued, fully paid and non-assessable. No shares of capital stock of the Company are subject to preemptive rights or any other similar rights of the shareholders of the Company or any liens or encumbrances imposed through the actions or failure to act of the Company. As of the effective date of this Agreement, and except as disclosed in the SEC Documents, (i) there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal, agreements, understandings, claims or other commitments or rights of any character whatsoever relating to, or securities, notes or rights convertible into or exchangeable for any shares of capital stock of the Company or any of its Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries, (ii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of its or their securities under the 1933 Act and (iii) there are no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holders) that will be triggered by the issuance of any of the Securities. The Company has furnished to the Purchaser true and correct copies of the Companys Certificate of Incorporation as in effect on the date hereof (Certificate of Incorporation), the Companys By-laws, as in effect on the date hereof (the By-laws), and the terms of all securities convertible into or exercisable for Common Stock of the Company and the material rights of the holders thereof in respect thereto."
"f)No Conflicts. The execution, delivery and performance of this Agreement, the Note by the Company and the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance and reservation for issuance of the Conversion Shares) will not (i) conflict with or result in a violation of any provision of the Certificate of Incorporation or By-laws, or (ii) violate or conflict with, or result in a breach of any provision of, or constitute a default (or an event which with notice or lapse of time or both could become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture, patent, patent license or instrument to which the Company or any of its Subsidiaries is a party and that is not filed as an SEC Document or other document filed with the SEC, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations and regulations of any self-regulatory organizations to which the Company or its securities are subject) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries 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). Neither the Company nor any of its Subsidiaries is in violation of its Certificate of Incorporation, By-laws or other organizational documents and neither the Company nor any of its Subsidiaries is in default (and no event has occurred which with notice or lapse of time or both could put the Company or any of its Subsidiaries in default) under, and neither the Company nor any of its Subsidiaries has taken any action or failed to take any action that would give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party or by which any property or assets of the Company or any of its Subsidiaries is bound or affected, except for possible defaults as would not, individually or in the aggregate, have a Material Adverse Effect. The businesses of the Company and its Subsidiaries, if any, are not being conducted, and shall not be conducted so long as the Purchaser owns any of the Securities, in violation of any law, ordinance or regulation of any governmental entity. Except as specifically contemplated by this Agreement and as required under the 1933 Act and any applicable state securities laws, the Company is not required to obtain any consent, authorization or order of, or make any filing or registration with, any court, governmental agency, regulatory agency, self regulatory organization or stock market or any third party in order for it to execute, deliver or perform any of its obligations under this Agreement and the Note in accordance with the terms hereof or thereof or to issue and sell the Securities in accordance with the terms hereof and thereof and to issue the Conversion Shares. All consents, authorizations, orders, filings and registrations which the Company is required to obtain pursuant to the preceding sentence have been obtained or effected on or prior to the date hereof. The Company is not in violation of the listing requirements of the Over-the-Counter Bulletin Board (the OTCBB), or OTCQB, or OTC Pink and does not reasonably anticipate that the Common Stock will be delisted by the OTCBB, or OTCQB, or OTC Pink in the foreseeable future. The Company and its Subsidiaries are unaware of any facts or circumstances, which might give rise to any of the foregoing."
"j)Patents. Copyrights. etc. The Company and each of its Subsidiaries owns or possesses the requisite licenses or rights to use all patents, patent applications, patent rights, inventions, know-how, trade secrets, trademarks, trademark applications, service marks, service names, trade names and copyrights (Intellectual Property) necessary to enable it to conduct its business as now operated (and, as presently contemplated to be operated in the future); there is no claim or action by any person pertaining to, or proceeding pending, or to the Company's knowledge threatened, which challenges the right of the Company or of a Subsidiary with respect to any Intellectual Property necessary to enable it to conduct its business as now operated (and, as presently contemplated to be operated in the future); to the best of the Company's knowledge, the Company's or its Subsidiaries' current and intended products, services and processes do not infringe on any Intellectual Property or other rights held by any person and/or entity; and the Company is unaware of any facts or circumstances which might give rise to any of the foregoing. The Company and each of its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of their Intellectual Property."
"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."
"r)Permits: Compliance. The Company and each of its Subsidiaries is in possession of all franchises, grants, authorizations, licenses, permits, easements, variances, exemptions, consents, certificates, approvals and orders necessary to own, lease and operate its properties and to carry on its business as it is now being conducted (collectively, the Company Permits), and there is no action pending or, to the knowledge of the Company, threatened regarding suspension or cancellation of any of the Company Permits. Neither the Company nor any of its Subsidiaries is in conflict with, or in default or violation of, any of the Company Permits, except for any such conflicts, defaults or violations which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. February 21, 2017, neither the Company nor any of its Subsidiaries has received any notification with respect to possible conflicts, defaults or violations of applicable laws, except for notices relating to possible conflicts, defaults or violations, which conflicts, defaults or violations would not have a Material Adverse Effect."
"ii.Other than those that are or were stored, used or disposed of in compliance with applicable law, no Hazardous Materials are contained on or about any real property currently owned, leased or used by the Company or any of its Subsidiaries, and no Hazardous Materials were released on or about any real property previously owned, leased or used by the Company or any of its Subsidiaries during the period the property was owned, leased or used by the Company or any of its Subsidiaries, except in the normal course of the Company's or any of its Subsidiaries' business."
"aa)Bad Actor. No officer or director of the Company would be disqualified under Rule 506(d) of the Securities Act as amended on the basis of being a bad actor as that term is established in the in the September 19, 2013 Small Entity Compliance Guide published by the Securities and Exchange Commission."
"e)Listing. The Company will obtain and, so long as the Purchaser owns any of the Securities, maintain the listing and trading of its Common Stock on the OTCBB, and OTCQB, or OTC Pink or any equivalent replacement exchange, the NASDAQ Stock Market (NASDAQ), the New York Stock Exchange (NYSE), or the NYSE MKT, f/kla American Stock Exchange (AMEX), and will comply in all respects with the Company's 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 Purchaser copies of any notices it receives from the SEC, OTC Markets Group and any other exchanges or quotation systems on which the Common Stock is then listed regarding the continued eligibility of the Common Stock for listing on such exchanges and quotation systems, provided that it shall not provide any notices constituting material nonpublic information."
"h)Securities Laws Disclosure: Publicity. The Company shall comply with applicable securities laws by filing a Current Report on Form 8-K, within four (4) Trading Days following the date hereof, disclosing all the material terms of the transactions contemplated hereby, if the Company deems the transactions contemplated hereby to constitute material nonpublic information. The Company and Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor Purchaser shall issue any such press release or otherwise make any such public statement without the prior consent of the Company, with respect to any press release of any Purchaser, or without the prior consent of Purchaser, with respect to any press release of the Company, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication."
"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."
"d)The representations and warranties of the Company 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 such time (except for representations and warranties that speak as of a specific date) and the Company 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 Company at or prior to the Closing Date. The Purchaser shall have received a certificate or certificates, executed by the chief executive officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Purchaser including, but not limited to certificates with respect to the Company's Certificate of Incorporation, By-laws, incumbency, and Board of Directors' resolutions relating to the transactions contemplated hereby."
"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 thereof or any other State. Any action brought by any party against any other party hereto 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 parties executing this Agreement and other agreements referred to herein or delivered in connection herewith on behalf of the Company agree to submit to the in personam jurisdiction of such courts and hereby irrevocably waive trial by jury. The prevailing party shall be entitled to recover from the other party its reasonable attorney's 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 hereto 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 contemplated hereby 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."
"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)."
"e)Fees and Expenses. On or prior to the Closing, the Company shall pay or reimburse to Purchaser a non-refundable, non-accountable sum equal to $4,500.00 as and for the fees, costs and expenses (including without limitation legal fees and disbursements and due diligence and administrative expenses) incurred by the Purchaser in connection with the Purchaser's due diligence and negotiation, preparation and execution of the Transaction Documents and consummation of the Transactions. The Purchaser may withhold and offset the balance of such amount from the payment of its Purchase Price otherwise payable hereunder at Closing, which offset shall constitute partial payment of such Purchase Price in an amount equal to such offset. Except as expressly set forth in this Agreement or the Note 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 Purchaser."
"f) Usury. To the extent it may lawfully do so, the Company hereby agrees not to insist upon or plead or in any manner whatsoever claim, and will resist any and all efforts to be compelled to take the benefit or advantage of, usury laws wherever enacted, now or at any time hereafter in force, in connection with any claim, action or proceeding that may be brought by the Purchaser in order to enforce any right or remedy under the Note. Notwithstanding any provision to the contrary contained in herein or under the Note, it is expressly agreed and provided that the total liability of the Company under the Note for payments in the nature of interest shall not exceed the maximum lawful rate authorized under applicable law (the Maximum Rate), and, without limiting the foregoing, in no event shall any rate of interest or default interest, or both of them, when aggregated with any other sums in the nature of interest that the Company may be obligated to pay under the Note or herein exceed such Maximum Rate. It is agreed that if the maximum contract rate of interest allowed by law and applicable to the Note is increased or decreased by statute or any official governmental action subsequent to the date hereof, the new maximum contract rate of interest allowed by law will be the Maximum Rate applicable to the Note from the effective date forward, unless such application is precluded by applicable law. If under any circumstances whatsoever, interest in excess of the Maximum Rate is paid by the Company to the Purchaser with respect to indebtedness evidenced by the Note, such excess shall be applied by the Purchaser to the unpaid principal balance of any such indebtedness or be refunded to the Company, the manner of handling such excess to be at the Purchaser's election."
"k)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 Purchaser shall assign this Agreement or any rights or obligations hereunder without the prior written consent of the other. Notwithstanding the foregoing, subject to Section 2(f), the Purchaser may assign its rights hereunder to any person that purchases Securities in a private transaction from the Purchaser or to any of its affiliates, as that term is defined under the 1934 Act, without the consent of the Company."
"5.2 Authorization. The execution, delivery and performance by such Investor of the Transaction Documents to which such Investor is a party have been duly authorized and will each constitute the valid and legally binding obligation of such Investor, enforceable against such Investor in accordance with their respective terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability, relating to or affecting creditors rights generally."
"5.3 Purchase Entirely for Own Account. The Securities to be received by such Investor hereunder will be acquired for such Investors own account, not as nominee or agent, and not with a view to the resale or distribution of any part thereof in violation of the 1933 Act, and such Investor has no present intention of selling, granting any participation in, or otherwise distributing the same in violation of the 1933 Act without prejudice, however, to such Investors right at all times to sell or otherwise dispose of all or any part of such Securities in"
"(a) The securities represented hereby may not be transferred unless (i) such securities have been registered for sale pursuant to the Securities Act of 1933, as amended, (ii) such securities may be sold pursuant to Rule 144(i), or (iii) the Company has received an opinion of counsel reasonably satisfactory to it that such transfer may lawfully be made without registration under the Securities Act of 1933 or qualification under applicable state securities laws."
"(a) The representations and warranties made by the Company in Section 4 hereof qualified as to materiality shall be true and correct at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date, and, the representations and warranties made by the Company in Section 4 hereof not qualified as to materiality shall be true and correct in all material respects at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the Closing Date."
"(iii) By the Investor if any of the conditions set forth in Section 6.1 shall have become incapable of fulfillment, and shall not have been waived by the Investor; orprovided, however, that, except in the case of clause (i) above, the party seeking to terminate its obligation to effect the Closing shall not then be in breach of any of its representations, warranties, covenants or agreements contained in this Agreement or the other Transaction Documents if such breach has resulted in the circumstances giving rise to such partys seeking to terminate its obligation to effect the Closing."
"8.1 Successors and Assigns. This Agreement may not be assigned by a party hereto without the prior written consent of the Company or the Investor, as applicable, provided, however, that an Investor may assign its rights and delegate its duties hereunder in whole or in part to an Affiliate or to a third party acquiring some or all of its Securities in a private transaction without the prior written consent of the Company, after notice duly given by such Investor to the Company. 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."
"8.5 Expenses. The parties hereto shall pay their own costs and expenses in connection herewith. In the event that legal proceedings are commenced by any party to this Agreement against another party to this Agreement in connection with this Agreement or the other Transaction Documents, the party or parties which do not prevail in such proceedings shall severally, but not jointly, pay their pro rata share of the reasonable attorneys fees and other reasonable out-of-pocket costs and expenses incurred by the prevailing party in such proceedings."
"8.8 Entire Agreement. This Agreement, including the Exhibits and the Disclosure Schedules, and the other Transaction Documents constitute the entire agreement among the parties hereof with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter hereof and thereof."
"8.10 Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Nevada, without regard to principles of conflicts of law. Each of the parties hereto irrevocably submit to the exclusive jurisdiction of the state and federal courta sitting in New York City, New York over any action or proceeding arising out of or relating to this Agreement and the parties hereto hereby irrevocably agree that all claims in respect of such action or proceeding may be heard and determined in such court. The parties hereto agree 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. The parties hereto further waive any objection to venue in the State of New York and any objection to an action or proceeding in the State of New York on the basis of forum non conveniens."
"This ASSET PURCHASE AGREEMENT (this Agreement), entered into as of November ___, 2012 (the Effective Date), is by and between Adgero Biopharmaceuticals, Inc., a Delaware corporation (Buyer), and St. Cloud Investments, LLC, a limited liability corporation incorporated in the British Virgin Islands (Seller). Capitalized terms used in this Agreement shall have the meanings ascribed to them in Article VII."
"WHEREAS, Seller has taken possession of certain assets of Miravant Medical Technologies (Miravant), including the Miravant Subsidiaries and their assets, pursuant to enforcement of its security interest in all or substantially all of the assets of Miravant contained in the Security Agreement dated March 7, 2005 (the Security Agreement), by and between the Seller and Miravant and is selling Acquired Assets to Buyer;"
"2.1 Organization; Authority. Seller is duly organized and validly existing under the laws of the British Virgin Islands and has full power to enter into this Agreement and to carry out the provisions hereof. The execution and delivery by Seller of this Agreement and each Ancillary Agreement to which it is a party, the performance by Seller of obligations under this Agreement and each Ancillary Agreement to which it is a party and the consummation by Seller of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action on the part of Seller, and no other proceedings on the part of Seller are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement and each Ancillary Agreement to which Seller is a party has been duly and validly executed and delivered by Seller and constitutes a valid and binding obligation of Seller, enforceable against Seller 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."
"2.2 Noncontravention. Neither the execution and delivery by Seller of this Agreement or any Ancillary Agreement to which Seller is a party, nor the consummation by Seller of the transactions contemplated hereby or thereby, will (a) conflict with or violate any provision of the certificate or articles of incorporation, bylaws or other organizational or charter documents of Seller, (b) require on the part of Seller any notice to or filing with, or any permit, authorization, consent or approval of, any Governmental Entity, (c) conflict with, result in a breach of, constitute (with or without due notice or lapse of time or both) a default under, result in the acceleration of obligations under, create in any party the right to terminate, modify or cancel, or require any notice, consent or waiver under, any Contract or instrument to which Seller is a party or by which Seller is bound, (d) result in the imposition of any Lien upon any Acquired Assets or (e) violate any order, writ, injunction, decree, statute, rule or regulation applicable to Seller or any of the Acquired Assets."
"3.2 Noncontravention. Neither the execution and delivery by Buyer of this Agreement or any Ancillary Agreement to which Buyer is a party, nor the consummation by Buyer of the transactions contemplated hereby or thereby, will (a) conflict with or violate any provision of the certificate or articles of incorporation, bylaws or other organizational or charter documents of Buyer, (b) require on the part of Buyer any notice to or filing with, or any permit, authorization, consent or approval of, any Governmental Entity, (c) conflict with, result in a breach of, constitute (with or without due notice or lapse of time or both) a default under, result in the acceleration of obligations under, create in any party the right to terminate, modify or cancel, or require any notice, consent or waiver under, any Contract or instrument to which Buyer is a party or by which Buyer is bound or to which any of its assets is subject."
"(g) all Intellectual Property in or to any of the foregoing (including without limitation all original, renewal, extension and reissued registrations which have been or shall be issued in the United States and all other countries in respect to the Acquired Assets and any improvements or derivatives thereof, and all inventions and the patents as may issue or claim priority under United States law or international convention in respect to the Acquired Patents; all rights of priority and, to the extent owned by Seller, claims for damages for reason of past or current infringement, unauthorized use or misappropriation of the Acquired Assets, as well as the right to sue for and collect the same for Buyers own use and enjoyment; and the Related Know-How);"
"Acquired Patents means any patent or patent application, whether or not filed, that St. Cloud acquired from Miravant or the Miravant Subsidiaries, including but not limited to (i) the United States and/or foreign patents and patent applications listed in Annex 1; (ii) any patent or patent application that claims priority to and is a divisional, continuation, reissue, renewal, reexamination, substitution or extension of a patent application identified in (i); (iii) any patents issuing on any of the patent applications identified in (i) or (ii), including any reissues, renewals, reexaminations, substitutions or extensions thereof, and foreign equivalents of the foregoing; (iv) any claim of a continuation-in-part application or patent that is entitled to the priority date of, and is directed specifically to subject matter specifically described in, at least one of the patents or patent applications identified in (i), (ii) or (iii); (v) any foreign counterpart (including PCTs) of any of the patents or patent applications identified in (i), (ii) or (iii) or of the claims identified in (iv); and (vi) any supplementary protection certificates, any other patent term extensions, and restorations and the like of any patents and patent applications identified in (i) through (v)."
(a) the taking of any of the following actions by such Person pursuant to or within the meaning of: (i) the commencement of a voluntary case; (ii) the consent to the entry of an order for relief against it in an involuntary case; (iii) the consent to the appointment of a Custodian of it or for any substantial part of its property; or (iv) the making of a general assignment for the benefit of its creditors;
(b) the entry by a court of competent jurisdiction of an order or decree under any Bankruptcy Law that: (i) is for relief against such Person in an involuntary case; (ii) appoints a Custodian of such Person or for any substantial part of its property; or (iii) orders the winding up or liquidation of such Person.
"Net Sales means, with respect to any Product, the gross invoice amount for all sales or transfers of a Finished Product to a Third Party, less the following deductions and offsets, but only to the extent such sums are otherwise included in the computation of gross invoices or are paid by Buyer, Buyer Licensee, or a licensee or sub-licensee of either party, and not otherwise reimbursed:"
"Pivotal Trial means a human clinical trial in any country, whether controlled or uncontrolled, that is performed after preliminary evidence suggesting effectiveness of the drug under evaluation has been obtained, and intended to gather the additional information about effectiveness and safety that is needed to evaluate the overall benefit-risk relationship of the drug and to provide an adequate basis for physician labeling. In the United States, Pivotal Trial would include a human clinical trial that satisfies the requirements of 21 C.F.R.  312.21 (c)."
"Regulatory Exclusivity Period means any period of data., market or other regulatory exclusivity (other than supplementary protection certificates, which will be treated as part of the Acquired Patents hereunder) which prevents a Third Party from referencing data submitted by Buyer or Buyer Licensee in connection with obtaining Regulatory Approval of a Product, including any such. periods under national implementations in the European Union of Section 10.1(a)(iii) of Directive 2001/EC/83 and all foreign equivalents."
8.3 Succession and Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties named herein and their respective successors and permitted assigns. No Party may assign any of its rights or delegate any of its performance obligations hereunder without the prior written approval of the other Party. Any purported assignment of rights or delegation of performance obligations in violation of this Section 8.3 is void.
"8.14 Confidentiality. This Agreement,. the Ancillary Agreements and the contents hereof and thereof are confidential and, except for the disclosure hereof or thereof on a confidential basis to a Partys officers, directors, employees, accountants, attorneys and other professional advisors retained by such Party in connection with the transactions contemplated hereby or as otherwise required by law, may not be disclosed in whole or in part to any Person without the prior written consent of the other Party."
"On this 26 day of November 2012, before me, the undersigned Notary Public, personally appeared Michael Khoury, proved to me through satisfactory evidence of identification, which was/were California DL, to be the person whose name is signed on behalf of Seller on the preceding lines, and who swore or affirmed to me that the contents of the document are truthful and accurate to the best of his/her knowledge and belief. The above-indicated individual is duly authorized to execute this document singly on behalf of Seller document of his/her own free will."
"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."
"(g)Capitalization. The capitalization of the Company is as set forth on Schedule 3.1(g). The Company has not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Companys stock option plans, the issuance of shares of Common Stock to employees pursuant to the Companys employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange"
"(h)SEC Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus and the Prospectus Supplement, being collectively referred to herein as the SEC Reports) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities Act. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and"
"regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (GAAP), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments."
"(l)Compliance. Neither the Company nor any Subsidiary: (i)is 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 or any Subsidiary under), nor has the Company or any Subsidiary 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."
"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."
"(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 the Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the transaction Documents and performance by such Purchaser of the transactions contemplated by the Transaction Documents 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."
"(d)Experience of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Shares, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the Shares and, at the present time, is able to afford a complete loss of such investment."
"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 Shares 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 the identification of the availability of or borrowing shares in order to effect Short Sales or similar transactions in the future."
"press release, the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of the Purchasers by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon the issuance of such press release, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates on the one hand, and any of the Purchasers or any of their Affiliates on the other hand, shall terminate. The Company and each Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company, with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market, without the prior written consent of such Purchaser, except (a)as required by federal securities law in connection with the filing of final Transaction Documents with the Commission and (b)to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers with prior notice of such disclosure permitted under this clause (b)."
"5.1Termination.This Agreement may be terminated by any Purchaser, as to such Purchasers obligations hereunder only and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the Closing has not been consummated on or before February3, 2017; provided, however, that no such termination will affect the right of any party to sue for any breach by any other party (or parties)."
"5.8No Third-Party Beneficiaries. The Placement Agent shall be the third party beneficiary of the representations and warranties of the Company in Section3.1 and the representations and warranties of the Purchasers in Section3.2. 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 Section4.7 and this Section5.8."
"5.15Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law would be adequate."
"5.17Independent Nature of Purchasers Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently protect and enforce its rights including, without limitation, the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose. Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. For reasons of administrative convenience only, each Purchaser and its respective counsel have chosen to communicate with the Company through the legal counsel of the Placement Agent. The legal counsel of the Placement Agent does not represent any of the Purchasers and only represents the Placement Agent. The Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained in this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and the Purchasers collectively and not between and among the Purchasers."
5.18Liquidated Damages. The Companys obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts are due and payable shall have been canceled.
"5.20Construction. 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."
"3.1 Representations and Warranties of the Company. Except as set forth in the various schedules to this Agreement (the Disclosure Schedules), which Disclosure Schedules shall be deemed a part hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the corresponding section of the Disclosure Schedules, the Company hereby makes the following representations and warranties to each Purchaser:"
"(j) Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property and good and marketable title in all personal property owned by it that, in each case, is material to the business of the Company and the Subsidiaries, in each case free and clear of all Liens, except for 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 Liens for the payment of federal, state or other taxes, the payment of which is neither delinquent nor subject to penalties in any material respect. 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."
(n) No General Solicitation. Neither the Company nor any person acting on behalf of the Company has offered or sold any of the Securities by any form of general solicitation or general advertising. The Company has offered the Securities for sale only to the Purchasers and certain other accredited investors within the meaning of Rule 501 under Regulation D promulgated under the Securities Act.
"(i) The Purchaser understands and agrees that purchase of the Securities is a high risk investment and the Purchaser is able to afford an investment in a speculative venture having the risks and objectives of the Company. The Purchase has carefully read and considered the matters set forth this Agreement and, the matters contained in the Companys SEC Reports, including those matters set forth under the caption Risk Factors contained in Companys various SEC Reports. Purchaser understands that any of such risk may materially adversely affect the Companys operations and future prospects."
"(g) Public Filings. The Purchaser is aware that an investment in the Securities involves a number of very significant risks and has carefully read and considered the disclosure in the Companys Form 10-K for the year ended December 31, 2015, its Form 10-Q for the quarter ended September 31, 2016, and all other disclosure filings made by the Company which are available on the Edgar System at SEC.gov and understands that certain risks may materially adversely affect the Companys operations and future prospects"
"[NEITHER THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS [EXERCISEABLE]] 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 AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES."
"4.2 Integration. 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 to the Purchasers in a manner that would require the registration under the Securities Act of the sale of the Securities to the Purchasers."
"4.4 Equal 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 any of the Transaction Documents unless the same consideration is also offered to all of the parties to the 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 Securities or otherwise."
"5.4 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) one Business Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto prior to 5:30 p.m. (New York City time) on a Business Day, with written confirmation of successful transmission, (b) the next Business Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto on a day that is not a Business Day or later than 5:30 p.m. (New York City time) on any Business Day, (c) the second Business Day following the date of mailing, if sent by U.S. nationally recognized overnight 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 set forth on the signature pages attached hereto."
"5.5 Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company and the Purchasers, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right."
"5.9 Governing Law. 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, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan 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 suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, 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 suit, 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 either party shall commence an action or proceeding to enforce any provisions of the Transaction Documents, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its reasonable attorneys fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding."
"5.13 Replacement of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement Securities."
"MGT Capital Investments, Inc., |  ---|---  |  By: |  |  Name: | Robert Ladd |  Title: | President |   |  |  Address for Notice: |   |  |  512 S. Mangum St. |  Suite 408 |  Durham, NC 27701 |  "
A. The Company and each Purchaser are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by Section 4(a)(2) of the Securities Act of 1933 (the Securities Act) and Rule 506 of Regulation D (Regulation D) as promulgated by the United States Securities and Exchange Commission (the Commission) under the Securities Act.
"D. Contemporaneously with the execution and delivery of this Agreement, the Company and the Purchasers are executing and delivering a registration rights agreement, substantially in the form attached hereto as Exhibit H (the Registration Rights Agreement), pursuant to which, among other things, the Company will agree to provide certain registration rights with respect to the Securities under the Securities Act and the rules and regulations promulgated thereunder and applicable state securities laws."
"Acquisition Proposal means a written offer or proposal involving the Company or any Subsidiary with respect to: (i)any merger, reorganization, consolidation, share exchange, share issuance, recapitalization, business combination, liquidation, dissolution or other similar transaction involving any sale, issuance, lease, exchange, mortgage, pledge, transfer or other disposition of, all or a material portion of the assets or equity securities or deposits of, the Company or any Subsidiary, in a single transaction or series of related transactions which would result in a Change in Control; (ii)any tender offer or exchange offer for all or a material portion of the outstanding shares of capital stock of the Company or any Subsidiary; or (iii)any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing."
"Action means any action, suit, inquiry, notice of violation, proceeding (including any partial proceeding such as a deposition), or investigation pending or, to the Companys Knowledge, threatened against the Company, any Subsidiary, or any of their respective properties or any officer, director, or employee of the Company or any Subsidiary acting in his or her capacity as an officer, director, or employee before or by any Governmental Entity."
"Closing Date means the Trading Day when all of the Transaction Documents have been executed and delivered by the applicable parties thereto, which shall be no earlier than the third (3rd) Business Day after all of the conditions set forth in Sections 2.1, 2.2, 5.1 and 5.2 hereof are satisfied or waived, as the case may be, or such other date as the parties may agree."
"(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 each Purchaser, and each Purchaser shall, severally and not jointly, purchase from the Company, the number of Shares set forth below such Purchasers name on the signature page of this Agreement at a per share price equal to the Purchase Price."
"(ii) one or more stock certificates (if physical certificates are required by the Purchaser to be held immediately prior to the Closing; if not, then a .pdf copy of stock certificates (with the original stock certificates to be delivered within two Business Days of the Closing Date), evidencing the Shares subscribed for by Purchaser hereunder, registered in the name of such Purchaser or its nominee or evidence that the Companys transfer agent has made a book entry to such Purchasers account with respect to such Shares;"
"3.1 Representations and Warranties of the Company. The Company hereby represents and warrants as of the date hereof and as of the Closing Date, except for the representations and warranties that speak as of a specific date, which shall be made as of such date and qualified as set forth on the Disclosure Schedules attached to this Agreement, to each of the Purchasers that:"
"(c) Authorization; Enforcement; Validity. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by each of the Transaction Documents and otherwise to carry out its obligations hereunder and thereunder, including, without limitation, to issue the Securities in accordance with the terms hereof. The Companys execution and delivery of each of the Transaction Documents and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company, and no further corporate action is required by the Company, its board of directors, or its shareholders in connection therewith other than in connection with the Required Approvals. Each of the Transaction Documents has been (or upon delivery will have been) duly executed by the Company and is, or when delivered in accordance with the terms hereof or thereof, will (assuming due authorization, execution, and delivery thereof by the other parties thereto) constitute the legal, valid, and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i)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, (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. There are no shareholder agreements, voting agreements, or other similar arrangements with respect to the Companys capital stock to which the Company is a party or, to the Companys Knowledge, between or among any of the Companys shareholders."
"(f) Issuance of the Shares. The issuance of the Shares has been duly authorized and the Shares, when issued and paid for in accordance with the terms of the Transaction Documents, will be duly and validly issued, fully paid, and non-assessable and free and clear of all Liens, other than restrictions on transfer imposed by applicable securities laws, restrictions contemplated by this Agreement and Liens, if any, created by a Purchaser, and shall not be subject to preemptive or similar rights. The issuance of the Underlying Shares has been duly authorized and the Underlying Shares, if and when issued in accordance with the terms of the Articles of Incorporation, will be duly and validly issued, fully paid and non-assessable and free and clear of all Liens, other than restrictions on transfer imposed by applicable securities Laws, restrictions contemplated by this Agreement and Liens, if any, created by a Purchaser, and shall not be subject to preemptive or similar rights, except for those stated herein. Assuming the accuracy of the representations and warranties of the Purchasers in this Agreement, the Shares will be issued in compliance with all applicable federal and state securities laws."
"(j) Tax Matters. The Company and each of its Subsidiaries has (i)timely filed all material foreign, U.S. federal, state and local Tax Returns that are or were required to be filed, and all such Tax Returns are true, correct and complete in all material respects, (ii)paid all material Taxes required to be paid by it and any other material assessment, fine or penalty levied against it, whether or not shown or determined to be due on such Tax Returns, other than any such amounts (x)currently payable without penalty or interest, or (y)being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP; (iii)timely withheld, collected or deposited, as the case may be, all material Taxes (determined both individually and in the aggregate) required to be withheld, collected or deposited by it, and to the extent required, have been paid to the relevant taxing authority in accordance with applicable Law; and (iv)complied with all applicable information reporting requirements in all material respects. Neither the Company nor any Subsidiary (i)is subject to any outstanding audit, assessment, dispute or claim concerning any material Tax liability of the Company or any of its Subsidiaries either within the Companys Knowledge or claimed, pending or raised by an authority in writing; (ii)is a party to, bound by or otherwise subject to any obligation under any Tax sharing or Tax indemnity agreement or similar contract or arrangement (other than an agreement, similar contract or arrangement to which only the Company and its Subsidiaries are parties); (iii) has participated in a listed transaction within the meaning of Treasury Regulation Section1.6011- 4(b)(2); or (iv)has any liability for Taxes of any Person arising from the application of Treasury Regulation Section1.1502-6 or any analogous provision of state, local or foreign Law, or as a transferee or successor, by contract, or otherwise. No claim has been made by a tax authority in a jurisdiction where the Company or any Subsidiary does not pay Taxes or file Tax Returns asserting that the Company or any Subsidiary is or may be subject to Taxes assessed by such jurisdiction. Neither the Company nor any Subsidiary will be required to include any item of income in, or exclude any item of deduction from, taxable income for any period (or any portion thereof) ending after the Closing as a result of any: (1)installment sale or other open transaction disposition made on or prior to the Closing; (2)prepaid amount received on or prior to the Closing; (3)written and legally"
"or operates any real property contaminated with any substance that is in violation of any Environmental Laws or (iv)is subject to any claim relating to any Environmental Laws; in each case, which violation, contamination, liability or claim has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; and there is no pending or, to the Companys Knowledge, threatened investigation that might lead to such a claim. Except as would not result in a Material Adverse Effect, there are no circumstances or conditions (including the presence of asbestos, underground storage tanks, lead products, polychlorinated biphenyls, prior manufacturing operations, dry-cleaning or automotive services) involving the Company or any of its Subsidiaries, or any currently or formerly owned or operated property of the Company or any of its Subsidiaries, that could reasonably be expected to result in any claim, liability, investigation, cost or restriction against the Company or any of its Subsidiaries, or result in any restriction on the ownership, use, or transfer of any property pursuant to any Environmental Law, or adversely affect the value of any currently owned property of the Company or any of its Subsidiaries."
"(ee) No Undisclosed Liabilities. There are no material liabilities or obligations of the Company or any of the Subsidiaries of any kind whatsoever, whether accrued, contingent, absolute, determined, determinable, or otherwise, except for (i)liabilities appropriately reflected or reserved against in accordance with GAAP in the Companys audited balance sheet at December 31, 2015, or that are otherwise disclosed in the footnotes to the financial statements for the year ended December 31, 2015, and (ii)liabilities that have arisen in the ordinary and usual course of business and consistent with past practice since December 31, 2015."
"(kk) Money Laundering Laws. The operations of each of the Company and any Subsidiary are, and have been conducted at all times, in compliance in all material respects with the money laundering statutes of applicable jurisdictions, 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 Money Laundering Laws), and to the Companys Knowledge, no action, suit, or proceeding by or before any court or governmental agency, authority, or body or any arbitrator involving the Company and/or any Subsidiary with respect to the Money Laundering Laws is pending or threatened."
"(ll) No Additional Agreements. The Company has no agreements or understandings (including, without limitation, side letters) with any Purchaser or other Person to purchase shares of Common Stock or Series A Preferred Stock on terms more favorable to such Person than as set forth herein, except that the Company may enter into the Castle Creek Side Letter to provide Castle Creek with the right to either appoint a representative to the Companys board of directors or appoint a non-voting observer to attend Company board meetings, to exercise certain preemptive rights, or to grant Castle Creek certain other rights. Except for the Castle Creek Side Letter, the Company does not have any agreement or understanding with any Purchaser with respect to the transactions contemplated by the Transaction Documents other than as specified in the Transaction Documents."
"(mm) Reports, Registrations and Statements. Since January 1, 2014, the Company and each Subsidiary have filed all material reports, registrations, and statements, together with any required amendments thereto, that it was required to file with the Federal Reserve, the FDIC, the Pennsylvania Department, and any other applicable federal or state securities or banking authorities. All such reports and statements filed with any such regulatory body or authority are collectively referred to herein as the Company Reports. As of their respective dates, the Company Reports complied in all material respects with all the rules and regulations promulgated by the Federal Reserve, the FDIC, the Pennsylvania Department, and any other applicable foreign, federal, or state securities or banking authorities, as the case may be."
"(qq) No General Solicitation or General Advertising. Neither the Company nor, to the Companys Knowledge, any Person acting on its behalf has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Shares pursuant to this Agreement and the other Transaction Documents."
"such terms are used in Regulation D, (ii)has entered into no agreements with shareholders of the Company or other subscribers for the purpose of controlling the Company or any Subsidiary; and (iii)has entered into no agreements with shareholders of the Company or other subscribers regarding voting or transferring Purchasers interest in the Company."
"(h) Experience of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication, and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Shares and has so evaluated the merits and risks of such investment. Such Purchaser is capable of protecting its own interests in connection with this investment and has experience as an investor in securities of companies like the Company. Such Purchaser is able to hold the Shares indefinitely if required, is able to bear the economic risk of an investment in the Shares, and, at the present time, is able to afford a complete loss of such investment. Further, Purchaser understands that no representation is being made as to the future trading value or trading volume of the Shares."
"legend is no longer required pursuant to the foregoing, the Company will no later than three (3)Trading Days following the delivery by a Purchaser to the Transfer Agent (with notice to the Company) of a legended certificate representing such Securities (endorsed or with stock powers attached, signatures guaranteed, and otherwise in form necessary to affect the reissuance and/or transfer) and a representation letter to the extent required by Section 4.1(a), deliver or cause to be delivered to such Purchaser a certificate representing such Securities that is free from all restrictive legends. Except as may be required to ensure compliance with applicable law and except as expressly provided in this Agreement, 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 in this Section 4.1(c). Certificates for Shares free from all restrictive legends may be transmitted by the Transfer Agent to the Purchasers by crediting the account of the Purchasers prime broker with The Depository Trust Company as directed by such Purchaser."
"4.2 Acknowledgment of Dilution. The Company acknowledges that the issuance of the Securities may result in dilution of the outstanding shares of Common Stock. The Company further acknowledges that its obligations under this Agreement, including without limitation its obligation to issue the Securities pursuant to this Agreement, are unconditional (except as otherwise set forth herein) and absolute and not subject to any right of set off, counterclaim, delay, or reduction, regardless of the effect of any such dilution or any claim the Company may have against any Purchaser and regardless of the dilutive effect that such issuance may have on the ownership of the other shareholders of the Company."
"(iii) Exceptions. The provisions of Section 4.8(c)(i) and (ii)do not apply to (A)claims due to the inaccuracy of any of the representations or breach of any of the warranties of the Company in Sections 3.1(a), 3.1(b), 3.1 (c), 3.1(e), 3.1(f), 3.1(g), 3.1(i), 3.1(j), 3.1(w), or 3.1(dd), or (B)indemnification claims involving fraud or knowing and intentional misconduct."
"(iv) Materiality Scrape. For purposes of the indemnity contained in Section 4.8(a)(i) and Section 4.8(c), all qualifications and limitations set forth in the parties representations and warranties as to materiality, Material Adverse Effect and words of similar import shall be disregarded in determining whether there shall have been any inaccuracy in or breach of any representations and warranties in this Agreement and the Losses arising therefrom."
"4.10 Limitation on Beneficial Ownership. No Purchaser shall be entitled to purchase a number of Shares that would cause such Purchaser, together with any other person whose Company securities would be aggregated with such Purchasers Company securities for purposes of any banking regulation or law, to collectively be deemed to own, control or have the power to vote shares of Common Stock which would represent more than 4.99% of the number of shares of Common Stock issued and outstanding (based on the number of outstanding shares as of the Closing Date)."
"(a) Notwithstanding anything to the contrary in this Agreement, no Purchaser (together with its Affiliates (as such term is used under the BHCA)) shall have the ability to purchase more than 33.3% of the Companys total equity or exercise any voting rights of any class of securities in excess of 4.99% (provided that, upon written notice from such Purchaser to the Company, such Purchaser may purchase such greater percentage as may be permitted following such Purchasers receipt of regulatory non-objection under the Change in Bank Control Act of 1978, as amended) of the total outstanding voting securities of the Company. In the event a Purchaser breaches its obligations under this Section4.14 or believes that it is reasonably likely to breach such an obligation, it shall promptly notify the other parties hereto and shall cooperate in good faith with such parties to modify ownership or make other arrangements or take any other action, in each case, as is necessary to cure or avoid such breach."
"4.15 Most Favored Nation. With the exception of the Castle Creek Side Letter, during the period from the date of this Agreement through the Closing Date, neither the Company nor its Subsidiaries shall enter into any additional, or modify any existing, agreements with any existing or future investors in the Company or any of its Subsidiaries that have the effect of establishing rights or otherwise benefiting such investor in a manner more favorable in any material respect to such investor than the rights and benefits established in favor of the Purchasers by this Agreement, unless, in any such case, the Purchasers have been provided with such rights and benefits."
"(c) No Injunction. No statute, rule, regulation, executive order, decree, ruling, or injunction shall have been enacted, entered, promulgated, or endorsed by any court or governmental authority of competent jurisdiction, nor has there been any regulatory communication, that prohibits the consummation of any of the transactions contemplated by the Transaction Documents or restricts any Purchaser or any of a Purchasers Affiliates from owning or voting any securities of the Company in accordance with the terms thereof."
"(n) No Change in Control. The Company shall not have agreed to enter into or entered into (A)any agreement or transaction in order to raise capital, or (B)any transaction that resulted in, or would result in if consummated, a Change in Control of the Company, in each case, other than in connection with the transactions contemplated by the Transaction Documents."
"(q) Well-Capitalized Status. After the Closing and the consummation of the transactions contemplated by this Agreement , (A) the Banks capital levels shall exceed the specific quantitative capital requirements necessary to be deemed well capitalized as defined in 12 C.F.R.  325.103(b)(1); (B) the Companys capital levels shall exceed the specific quantitative capital requirements necessary to be deemed well capitalized as defined in 12 C.F.R.  225.2(r); (C) the Company and the Bank shall meet or exceed all specific quantitative capital requirements stated in any written agreement, order, understanding or undertaking with the Federal Reserve or the Pennsylvania Department of Banking and Securities, as applicable."
"(a) Representations and Warranties. The representations and warranties made by each Purchaser in Section3.2 hereof shall be true and correct in all material respects (except to the extent such representations and warranties are qualified by materiality, in which case they shall be true and correct in all respects) as of the date when made and as of the Closing Date as though made on and as of such date (except to the extent such representations and warranties are made as of a specified date, in which case such representations and warranties shall be true and correct in all material respects as of such date), in each case except as would not have a material adverse effect on the ability of the Purchaser to consummate the transactions contemplated by this Agreement and the other Transaction Documents;"
"(c) No Injunction. No statute, rule, regulation, executive order, decree, ruling, or injunction shall have been enacted, entered, promulgated, or endorsed by any court or governmental authority of competent jurisdiction, nor has there been any regulatory communication, that prohibits the consummation of any of the transactions contemplated by the Transaction Documents."
"Email: kdecker@barley.com | If to a Purchaser: |  | Only to the address set forth under such Purchasers name on the signature page hereof; or such other address as may be designated in writing hereafter, in the same manner, by such Person or such other address as may be designated in writing hereafter, in the same manner, by such Person."
"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 or any of the Transaction Documents."
"6.7 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto, their respective successors and permitted assigns and, with respect to the representations and warranties of the parties hereto as set forth in Article III, the Placement Agent, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, other than, solely with respect to the provisions of Section4.8, the Purchaser Parties."
"6.8 Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the Commonwealth of Pennsylvania, without regard to the principles of conflicts of law thereof. Each party agrees that all 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, employees or agents) may be commenced on a non-exclusive basis in the Pennsylvania Courts. Each party hereto hereby irrevocably submits to the non-exclusive jurisdiction of the Pennsylvania Courts 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 Proceeding, any claim that it is not personally subject to the jurisdiction of any such Pennsylvania Court, or that such Proceeding has been commenced in an improper or inconvenient forum. Each party hereto hereby irrevocably waives personal service of process and consents to process being served in any such 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 manner permitted by law. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY."
"6.15 Independent Nature of Purchasers Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance of the obligations of any other Purchaser under any Transaction Document. The decision of each Purchaser to purchase Shares pursuant to the Transaction Documents has been made by such Purchaser independently of any other Purchaser and independently of any information, materials, statements, or opinions as to the business, affairs, operations, assets, properties, liabilities, results of operations, condition (financial or otherwise), or prospects of the Company or any Subsidiary which may have been made or given by any other Purchaser or by any agent or employee of any other Purchaser, and no Purchaser or any of its agents or employees shall have any liability to any other Purchaser (or any other Person) relating to or arising from any such information, materials, statements, or opinions. Nothing contained herein or in any Transaction Document, and no action taken by any Purchaser pursuant thereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture, or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser acknowledges that no other Purchaser has acted as agent for such Purchaser in connection with making its investment hereunder and that no Purchaser will be acting as agent of such Purchaser in connection with monitoring its investment in the Shares or enforcing its rights under the Transaction Documents. Each Purchaser shall be entitled to independently protect and enforce its rights, including without limitation the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any proceeding for such purpose. It is expressly understood and agreed that each provision contained in this Agreement is between the Company and a Purchaser, solely, and not between the Company and the Purchasers collectively and not between and among the Purchasers."
"(ii) by either the Company or any Purchaser (with respect to itself only) upon written notice to the other, if the Closing has not been consummated on or prior to 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)(ii) 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 Closing to occur on or before such time;"
"(vii) by any Purchaser, with respect to such Purchaser, if the Company directly or indirectly effects or causes to be effected any transaction with a third party (1)with respect to an Acquisition Proposal or that would reasonably be expected to result in a Change in Control and (2)such transaction has a purchase price per share of Common Stock that is less than the Purchase Price."
"|  | A trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the Shares, whose purchase is directed by a sophisticated person who has such knowledge and experience in financial and business matters that such person is capable of evaluating the merits and risks of investing in the Company; | "
"|  | A natural person whose individual net worth, or joint net worth with your spouse, at the time of your purchase exceeds $1,000,000 (excluding in such calculation the value of your primary residence and the related amount of indebtedness secured by your primary residence up to its fair market value and including in such calculation, if applicable, the related amount of indebtedness secured by your primary residence that exceeds its fair market value and the amount of any increase on the related indebtedness secured by your primary residence incurred within sixty (60) days before your purchase of the Shares); | "
 |  | Date |  | |  | |  | |  | PrintName:  | | | | | B. |  | FOR EXECUTION BY AN ENTITY: |  | |  | |  | |  | | | | | | |  | |  | |  | |  | |  | EntityName:  | | | | | |  |   |  | |  | |  | By: | |
" |  | Date |  | |  | |  | |  | PrintName:  | | | | | |  | |  | |  | |  | |  | Title:  | C. |  | ADDITIONAL SIGNATURES (if required by partnership, corporation or trust document): | | | | | |  | |  | |  | |  | |  | EntityName:  | | | | | |  |   |  | |  | |  | By: | |"
"In addition, we have reviewed such matters of law and have examined and relied upon originals or copies, certified or otherwise identified to our satisfaction, of such documents, certificates, instruments, proceedings and materials, and have made such other investigations and inquiries as we have deemed relevant and necessary to enable us to express the opinions hereinafter expressed."
"The undersigned hereby certifies that she is the duly elected, qualified and acting Secretary of Riverview Financial Corporation, a Pennsylvania corporation (the Company), and that as such she is authorized to execute and deliver this certificate in the name and on behalf of the Company and in connection with the Securities Purchase Agreement, dated as of the date hereof, by and among the Company and the investors party thereto (the Purchase Agreement), and further certifies in her official capacity, in the name and on behalf of the Company, the items set forth below. Capitalized terms used but not otherwise defined herein shall have the meaning set forth in the Purchase Agreement."
"1. | Attached hereto as Exhibit A is a true, correct and complete copy of the resolutions duly adopted by the Board of Directors of the Company at a meeting held on October 10, 2016, which represent all of the resolutions approving the transactions contemplated by the Purchase Agreement and the issuance of the Shares. Such resolutions have not in any way been amended, modified, revoked or rescinded, have been in full force and effect since their adoption to and including the date hereof and are now in full force and effect. ---|--- "
" | (iii) | to the extent the Corporation or any of its subsidiaries is required by law or pursuant to the terms of any outstanding indebtedness of the Corporation or any subsidiary to prepare such reports, any annual reports, quarterly reports and other periodic reports pursuant to Section13 or 15(d) of the Securities Exchange Act of 1934 or otherwise, actually prepared by the Corporation or any of its subsidiaries as soon as available; ---|---|--- provided that, in each case, if the Corporation makes the information described in clauses (ii)and (iii) of this bullet point available through public filings on the EDGAR system or any successor or replacement system of the U.S. Securities and Exchange Commission, the delivery of the information shall be deemed satisfied by such public filings."
"In the event the VCOC Investor transfers all or any portion of its investment in the Corporation to an affiliated entity (or to a direct or indirect wholly- owned conduit subsidiary of any such affiliated entity) that is intended to qualify as a venture capital operating company under the Plan Asset Regulation, such affiliated entity shall be afforded the same rights that the Corporation has afforded to the VCOC Investor hereunder and shall be treated, for such purposes, as a third party beneficiary hereunder."
"(d) The Board Representative shall be entitled to compensation, including fees, and indemnification and insurance coverage in connection with his or her role as a director, to the same extent as other directors on the Board or the Bank Board, as applicable, and the Board Representative shall be entitled to reimbursement for reasonable documented, out-of- pocket expenses incurred in attending meetings of the Board and the Bank Board, or any committee thereof, in accordance with Company policy."
"3\. Reimbursement for Expenses. The Company shall pay the reasonable legal fees and expenses of counsel to Castle Creek, not to exceed $25,000, incurred by Castle Creek in connection with the transactions contemplated by the Transaction Documents, which amount shall be paid directly by the Company to counsel for Castle Creek at the Closing. Castle Creek shall pay Company 35% of the cost of the independent loan reviewed obtained by Company at Castle Creeks request, which amount shall be paid directly by Castle Creek to the Company at the Closing (subject to Company providing Castle Creek with reasonable documentation of the amount of the expense incurred)."
"(c) Limitation on Voting Securities. Notwithstanding anything in this Section4 to the contrary, upon the request of Castle Creek that it not be issued voting securities in whole or in part upon the exercise of its rights to purchase New Securities, the Company shall cooperate with Castle Creek to modify the proposed issuance of New Securities to Castle Creek to provide for the issuance of Series A Preferred Stock, Non-Voting Common Stock or other non-voting securities in lieu of voting securities; provided, however, that to the extent, following such reasonable cooperation, such modification would cause any other Purchaser to exceed its respective ownership limitation set forth in the Purchase Agreement, the Company shall, and shall only be obligated to, issue and sell to Castle Creek such number of voting securities and nonvoting securities as will not cause any other Purchaser to exceed its respective ownership limitation set forth in the Purchase Agreement and that Castle Creek has indicated it is willing to hold following consummation of such Offering (as defined in Section 4(d) below), and any remaining securities may be offered, sold or otherwise transferred to any other person or persons in accordance with Section 4(f)."
"(f) Failure of Purchase. In the event Castle Creek fails to exercise its rights provided in this Section4 within this 15 Business Day period or, if so exercised, Castle Creek is unable to consummate such purchase within the time period specified in Section 4(e) above because of its failure to obtain any required regulatory or shareholder consent or approval, the Company shall thereafter be entitled (during the period of 60 days following the conclusion of the applicable period) to sell or enter into an agreement (pursuant to which the sale of the New Securities covered thereby shall be consummated, if at all, within 90 days from the date of such agreement) to sell the New Securities not elected to be purchased pursuant to this Section4 by Castle Creek or which Castle Creek is unable to purchase because of such failure to obtain any such consent or approval, at a price and upon terms no more favorable in the aggregate to the purchasers of such New Securities than were specified in the Companys notice to Castle Creek. Notwithstanding the foregoing, if such sale is subject to the receipt of any regulatory or shareholder approval or consent or the expiration of any waiting period, the time period during which such sale may be consummated shall be extended until the expiration of five Business Days after all such approvals or consents have been obtained or waiting periods expired, but in no event shall such time period exceed 180 days from the date of the applicable agreement with respect to such sale. In the event the Company has not sold the New Securities or entered into an agreement to sell the New Securities within such 60-day period (or sold and issued New Securities in accordance with the foregoing within 90 days from the date of such agreement (as such period may be extended in the manner described above for a period not to exceed 180 days from the date of such agreement)), the Company shall not thereafter offer, issue or sell such New Securities without first offering such New Securities to Castle Creek in the manner provided above."
"securities (Expedited Issuance) and then comply with the provisions of this Section4 provided that (i)the purchasers of such New Securities have consented in writing to the issuance of additional New Securities in accordance with the provisions of this Section4, and (ii)the sale of any such additional New Securities under this Section 4(g) to Castle Creek shall be consummated as promptly as is practicable but in any event no later than 90 days subsequent to the date on which the Company consummates the Expedited Issuance under this Section 4(g). Notwithstanding anything to the contrary herein, the provisions of this Section 4(g) (other than as provided in subclause (ii)of this Section 4(g)) shall not be applicable, and the consent of the purchasers of such New Securities shall not be required, in connection with any Expedited Issuance undertaken at the written direction of the applicable federal regulator of the Company or the Bank. Notwithstanding anything to the contrary in this Agreement, no rights of Castle Creek under this Agreement will be adversely affected solely as the result of the temporary dilution of its percentage ownership of Common Stock due to an Expedited Issuance under this Section 4(g); provided, however, that such rights may be adversely affected from and after such time, if any, that Castle Creek declines to purchase Common Stock offered to it under this Section4\."
"6\. Conflicting Terms. This Side Letter Agreement constitutes a valid and binding agreement of the Company and Castle Creek and shall survive the execution and delivery of the Purchase Agreement. In the event of any conflict between the provisions of this Side Letter Agreement and the provisions of the Purchase Agreement, the provisions of this Side Letter Agreement shall prevail and be given effect."
 | (n) | Permissible Transfer means a transfer by the holder of Series A Preferred Stock (i)to the Corporation; (ii)in a widely distributed public offering of Common Stock or Series A Preferred Stock; (iii)that is part of an offering that is not a widely distributed public offering of Common Stock or Series A Preferred Stock but is one in which no one transferee (or group of associated transferees) acquires the rights to receive two percent (2%) or more of any class of the Voting Securities of the Corporation then outstanding (including pursuant to a related series of transfers); (iv)that is part of a transfer of Common Stock or Series A Preferred Stock to an underwriter for the purpose of conducting a widely distributed public offering; (v)to a transferee that controls more than fifty percent (50%) of the Voting Securities of the Corporation without giving effect to such transfer; or (vi)that is part of a transaction approved by the Board of Governors of the Federal Reserve System (the Federal Reserve). ---|---|--- 
" | (c) | Certificates as to Adjustments. Upon the occurrence of each adjustment or readjustment pursuant to this Section6, the Corporation at its expense will promptly compute such adjustment or readjustment in accordance with the terms hereof and prepare and furnish to each holder of Series A Preferred Stock a certificate executed by the Corporations President (or other appropriate officer) setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Corporation will, upon the written request at any time of any holder of Series A Preferred Stock, furnish or cause to be furnished to such holder a like certificate setting forth (i)such adjustments and readjustments, and (ii)the number of shares of Common Stock and the amount, if any, of other property which at the time would be received upon the conversion of the Series A Preferred Stock. ---|---|--- "
" | notice; provided, however, that failure to duly give such notice by mail, or any defect in such notice, to the holders of any stock designated for repurchase, shall not affect the validity of the proceedings for the repurchase of any other shares of Series A Preferred Stock, or of any other matter required to be presented for the approval of the holders of the Series A Preferred Stock. ---|--- "
" | Common Stock is subordinate, a distribution (Liquidation Distribution) equal to (i)any authorized and declared, but unpaid, Dividends with respect to such share of Non-Voting Common Stock at the time of such liquidation, dissolution or winding up, and (ii)the amount the holder of such share of Non-Voting Common 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 Non-Voting Common Stock at such time, without regard to any limitations on conversion of the Non-Voting Common Stock). All Liquidating Distributions to the holders of the Non-Voting Common Stock and Common Stock set forth in clause (ii)above will be made pro rata to the holders thereof. ---|--- "
" | (iii) | To effect any permitted conversion under Section5(a)(i) or Section5(a)(ii), the holder shall surrender the certificate or certificates evidencing such shares of Non-Voting Common Stock, duly endorsed, at the registered office of the Corporation, and provide written instructions to the Corporation as to the number of whole shares for which such conversion shall be effected, together with any appropriate documentation that may be reasonably required by the Corporation. Upon the surrender of such certificate(s), the Corporation will issue and deliver to such holder (in the case of a conversion under Section5(a)(i)) or such holders transferee (in the case of a conversion under Section5(a)(ii)) a certificate or certificates for the number of shares of Common Stock into which the Non-Voting Common Stock has been converted and, in the event that such conversion is with respect to some, but not all, of the holders shares of Non-Voting Common Stock, the Corporation shall deliver to such holder a certificate or certificate(s) representing the number of shares of Non-Voting Common Stock that were not converted to Common Stock. ---|---|--- "
"(b) If a Registration Statement under this Section2 relates to an underwritten offering and the managing underwriter(s) advise(s) the Company that in its or their reasonable opinion the number of securities requested to be included in such offering exceeds the number which can be sold without adversely affecting the marketability of such offering (including an adverse effect on the per share offering price), the Company will include in such registration or Prospectus only such number of securities that in the reasonable opinion of such underwriter(s) can be sold without adversely affecting the marketability of the offering (including an adverse effect on the per share offering price), which securities will be so included in the following order of priority: (i)first, the Common Stock and other securities the Company proposes to sell, (ii)second, the Registrable Securities of the Holders who have requested inclusion of Registrable Securities pursuant to this Section2, pro rata on the basis of the aggregate number of such securities or shares owned by each such person, or as such Holders may otherwise agree, and (iii)third, any other securities of the Company that have been requested to be so included, subject to the terms of this Agreement. The Company shall select the investment banking firm or firms to act as the lead underwriter or underwriters in connection with an underwritten offering made pursuant to this Section2\. No Holder may participate in any underwritten registration under this Section2 unless such Holder (i)agrees to sell the Registrable Securities it desires to have covered by the underwritten offering on the basis provided in any underwriting arrangements in customary form and (ii)completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements."
"(e) the Company shall use commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i)any order suspending the effectiveness of a Registration Statement, or (ii)any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, as soon as practicable."
"(k) the Company shall, in the case of an underwritten offering, cause its officers to use their commercially reasonable efforts to support the marketing of the Registrable Securities covered by the Registration Statement (including, without limitation, by participation in road shows) if requested by the managing underwriter(s) and taking into account the Companys business needs."
"for any settlement of any such Proceeding effected without its written consent, which consent shall not be unreasonably withheld, delayed or unreasonably conditioned. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding."
"(d) Contribution. If a claim for indemnification under Section6(a) or 6(b) is unavailable to an Indemnified Party (other than in accordance with its terms) or insufficient to hold an Indemnified Party harmless for any Losses, then each Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party, on the one hand, and Indemnified Party, on the other hand, in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party, on the one hand, and Indemnified Party, on the other hand, shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include, subject to the limitations set forth in this Agreement, any reasonable attorneys or other reasonable fees or expenses incurred by such party in connection with any Proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in this Section6(d) was available to such party in accordance with its terms. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section6(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section6(d), no Holder shall be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds actually received by such Holder from the sale of the Registrable Securities subject to the Proceeding exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation."
"(j) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, or waived unless the same shall be in writing and signed by the Company and Holders of a majority of the then outstanding Registrable Securities; provided that any such amendment, modification, supplement or waiver that materially, adversely and disproportionately effects the rights or obligations of any Holder vis a vis the other Holders shall require the prior written consent of such Holder."
"(k) 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., New York City time, on a Trading Day, (b)the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number specified in this Section on a day that is not a Trading Day or later than 5:00 p.m., New York City time, on any Trading Day, (c)the Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service with next day delivery specified, 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:"
"| | | | ---|---|---|---|--- |  | IftotheCompany: |  | Riverview Financial Corporation |  | |  | 3901 North Front Street |  | |  | Harrisburg, PA 17110 |  | |  | Attention: Chief Executive Officer | | |  | With a copy to: |  | Barley Snyder LLP |  | |  | 126 East King Street |  | |  | Lancaster, PA 17602-2893 |  | |  | Attention: Kimberly J. Decker |  | |  | Fax: (717) 291-4660 |  | |  | E-mail: kdecker@barley.com * * *"
"(l) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each 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. The Company may not assign its rights (except by merger or in connection with another entity acquiring all or substantially all of the Companys assets) or obligations hereunder without the prior written consent of all the Holders of the then outstanding Registrable Securities. The rights to have the Company register Registrable Securities pursuant to this Agreement shall be automatically assigned by Registration Rights Purchaser to any transferee of the Shares only if: (a) the transferee or assignee (i)acquires Shares of the Registration Rights Purchasers Registrable Securities with an original value as of the Closing Date of $2,000,000; (b)the Registration Rights Purchaser agrees in writing with the transferee or assignee to assign such rights, and a copy of such agreement is furnished to the Company within a reasonable period of time after such assignment; (c)the Company is, within a reasonable time after such transfer or assignment, furnished with written notice of (i)the name and address of such transferee or assignee and (ii)the securities with respect to which such registration rights are being transferred or assigned; (d)immediately following such transfer or assignment the further disposition of such securities by the transferee or assignee is restricted under the Securities Act and applicable state securities laws; and (e)at or before the time the Company received the written notice contemplated by clause (c)of this sentence the transferee or assignee agrees in writing with the Company to be bound by all of the provisions contained herein with respect to a Holder or Registration Rights Purchaser. In the event of any delay in filing or effectiveness of the Registration Statement as a result of such assignment by a Registration Rights Purchaser or its transferee, the Company shall not be liable for any damages arising from such delay."
"Investment Purpose. As of the date hereof, the Buyer is purchasing the Note and the shares of Common Stock issuable upon conversion of or otherwise pursuant to the Note, such shares of Common Stock being collectively referred to herein as the Conversion Shares and, collectively with the Note, the Securities) 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 1933 Act; provided, however, that by making the representations herein, the Buyer does not agree 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."
"Legends. The Buyer understands that the Note and, until such time as the Conversion Shares have been registered under the 1933 Act will be sold pursuant to Rule 144 or Regulation S without any restriction as to the number of securities as of a particular date that can then be immediately sold, the Conversion Shares may bear a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of the certificates for such Securities):"
"The legend set forth above shall be removed and the Company shall issue a certificate without such legend to the holder of any Security upon which it is stamped, if, unless otherwise required by applicable state securities laws, (a) such Security is registered for sale under an effective registration statement filed under the 1933 Act or otherwise may be sold pursuant to Rule 144 or Regulation S without any restriction as to the number of securities as of a particular date that can then be immediately sold, and (b) such holder provides the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Security may be made without registration under the 1933 Act, and that legend removal is appropriate, which opinion shall be accepted by the Company so that the sale or transfer is effected. The Buyer agrees to sell all Securities, including those represented by a certificate(s) from which the legend has been removed, in compliance with applicable prospectus delivery requirements, if any. In the event that the Company does not accept the opinion of counsel provided by the Buyer with respect to the transfer of Securities pursuant to an exemption from registration, such as Rule 144 or Regulation S, within 2 business days, it will be considered an Event of Default under the Note. "
"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."
"(n)Purchase Price means, with respect to any Regular Purchase made pursuant toSection 2(a) hereof, the average VWAP of the Purchase Shares during the Pricing Period multiplied by: (i) 77% if the price of the Regular Purchase request is 100% or less than or equal to the average trailing ten day trading volume on the Principal Market multiplied by the average VWAP in the Pricing Period; or (ii) 72% if the price of the Regular Purchase request is greater than 100% but less than 150% of the average trailing ten day trading volume on the Principal Market multiplied by the average VWAP in the Pricing Period; or (iii) 67% if the price of the Regular Purchase request is greater than 150% but less than 200% of the average trailing ten day trading volume multiplied by the average VWAP in the Pricing Period."
"(e)Validity; Enforcement. This Agreement has been duly and validly authorized, executed and delivered on behalf of the Investor and is a valid and binding agreement of the Investor enforceable against the Investor in accordance with its terms, subject as to enforceability to general principles of equity and to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors' rights and remedies."
"(c)Capitalization.As of the date hereof, the authorized capital stock of the Company is set forth its SEC Documents.Except as disclosed in the SEC Documents (as defined below), (i) no shares of the Company's capital stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company, (ii) there are no outstanding debt securities, (iii) 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, any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or any of its Subsidiaries, (iv) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act, (v) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries, (vi) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities as described in this Agreement and (vii) the Company does not have any stock appreciation rights or ""phantom stock"" plans or agreements or any similar plan or agreement.The Company has furnished to the Investor true and correct copies of the Company's Articles of Incorporation, as amended and as in effect on the date hereof (the ""Articles of Incorporation""), and the Company's Bylaws, as amended and as in effect on the date hereof (the ""Bylaws""), and summaries of the terms of all securities convertible into or exercisable for Common Stock, if any, and copies of any documents containing the material rights of the holders thereof in respect thereto."
"(d)Issuance of Purchase Shares.Upon issuance and payment therefor in accordance with the terms and conditions of this Agreement, the Purchase Shares (including, without limitation, the Initial Purchase Shares) shall be validly issued, fully paid and nonassessable and free and clear from all taxes, liens, charges, restrictions, rights of first refusal and preemptive rights with respect to the issue thereof, with the holders being entitled to all rights accorded to a holder of Common Stock. The Company has prepared and filed the Base Prospectus (as defined below) in conformity with the requirements of the Securities Act, including such amendments and supplements thereto as may have been required to the date of this Agreement. The Base Prospectus is effective under the Securities Act and no stop order preventing or suspending the effectiveness of the Base Prospectus or suspending or preventing the use of the Base Prospectus has been issued by the SEC and no proceedings for that purpose have been instituted or, to the knowledge of the Company, are threatened by the SEC. The Company, if required by the rules and regulations of the SEC, proposes to file the Prospectus with the SEC pursuant to Rule 424(b). At the time the Base Prospectus and any amendments thereto became effective, at the date of this Agreement and at each Closing Date, the Base Prospectus and any amendments or supplements thereto conformed and will conform in all material respects to the requirements of the Securities Act and, as of their respective effective dates, taken together as a whole, did 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 Base Prospectus and any amendments or supplements thereto, at the time the Base Prospectus or such amendment or supplement thereto was issued and at each Closing Date, conformed and will conform in all material respects to the requirements of the Securities Act and, taken together as a whole, 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."
"(e)No Conflicts.The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company of the transactions contemplated hereby will not (i) result in a violation of the Articles of Incorporation, any Certificate of Designations, Preferences and Rights of any outstanding series of preferred stock of the Company or the Bylaws or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, or cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party, or result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations and the rules and regulations of the Principal Market applicable to the Company or any of its Subsidiaries) or by which any property or asset of the Company or any of its Subsidiaries is bound or affected, except in the case of conflicts, defaults, terminations, amendments, cancellations and violations under clause (ii), which could not reasonably be expected to result in a Material Adverse Effect.Neither the Company nor its Subsidiaries is in violation of any term of or in default under its Articles of Incorporation, any Certificate of Designation, Preferences and Rights of any outstanding series of preferred stock of the Company or Bylaws or their organizational charter or bylaws, respectively.Neither the Company nor any of its Subsidiaries is in violation of any term of or is in default under any material contract, agreement, mortgage, indebtedness, indenture, instrument, judgment, decree or order or any statute, rule or regulation applicable to the Company or its Subsidiaries, except for possible conflicts, defaults, terminations or amendments that could not reasonably be expected to have a Material Adverse Effect.The business of the Company and its Subsidiaries is not being conducted, and shall not be conducted, in violation of any law, ordinance, regulation of any governmental entity, except for possible violations, the sanctions for which either individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect.Except as specifically contemplated by this Agreement and as required under the Securities Act or applicable state securities laws and the rules and regulations of the Principal Market, the Company is not required to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency or any regulatory or self-regulatory agency in order for it to execute, deliver or perform any of its obligations under or contemplated by the Transaction Documents in accordance with the terms hereof or thereof.Except as set forth elsewhere in this Agreement, all consents, authorizations, orders, filings and registrations which the Company is required to obtain pursuant to the preceding sentence shall be obtained or effected on or prior to the Commencement Date.Since one year prior to the date hereof, the Company has not received nor delivered any notices or correspondence from or to the Principal Market.The Principal Market has not commenced any delisting proceedings against the Company."
"(f)SEC Documents; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the twelve (12) months preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the SEC Documents) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Documents prior to the expiration of any such extension.As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable.None of the SEC Documents, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Documents comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing.Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (GAAP), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.Except as set forth in the SEC Documents, the Company has received no notices or correspondence from the SEC for the one year preceding the date hereof.The SEC has not commenced any enforcement proceedings against the Company or any of its Subsidiaries."
"(j) No General Solicitation; No Integrated Offering.Neither the Company, nor any of its 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 under the Securities Act) in connection with the offer or sale of the Purchase Shares. Neither the Company, nor or any of its affiliates, nor any Person acting on their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would require registration of the offer and sale of any of the Purchase Shares under the Securities Act, whether through integration with prior offerings or otherwise, or cause this offering of the Purchase Shares to be integrated with prior offerings by the Company in a manner that would require stockholder approval pursuant to the rules of the Principal Market on which any of the securities of the Company are listed or designated. The issuance and sale of the Purchase Shares hereunder does not contravene the rules and regulations of the Principal Market."
"(x)Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section12(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 pursuant to the Exchange Act nor has the Company received any notification that the SEC is currently contemplating terminating such registration. The Company has not, in the twelve (12) months preceding the date hereof, received any notice from any Person to the effect that the Company is not in compliance with the listing or maintenance requirements of the Principal 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."
"(h) Other Transactions. The Company shall not enter into, announce or recommend to its stockholders any agreement, plan, arrangement or transaction in or of which the terms thereof would restrict, materially delay, conflict with or impair the ability or right of the Company to perform its obligations under the Transaction Documents, including, without limitation, the obligation of the Company to deliver the Purchase Shares to the Investor in accordance with the terms of the Transaction Documents."
"(b)The representations and warranties of the Investor 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 3 above, in which case, such representations and warranties shall be true and correct without further qualification) as of the date hereof and as of the Commencement Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date);"
"(c) At any time after 90 days after the Commencement Date or immediately upon the completion of a fully underwritten offering of greater than $5,000,000, the Company shall have the option to terminate this Agreement for any reason or for no reason by delivering notice (a Company Termination Notice) to the Investor electing to terminate this Agreement without any liability whatsoever of any party to any other party under this Agreement (except as set forth below).The Company Termination Notice shall not be effective until one (1) Business Day after it has been received by the Investor. Upon receipt of a Company Termination Notice, if the Remaining Amount is greater than $4,000,000, the Company shall issue to the Investor, within two (2) Business Days of the Company Termination Notice, shares of the Companys common stock, registered pursuant to the Securities Act, with a value equal to 10% of the difference of $5,000,000 less the Remaining Amount divided by either the (i) price of the Companys Common Stock issued in the fully underwritten offering if the Company Termination Notice is issued in connection with a fully underwritten offering or (ii) the average VWAP of the Purchase Shares for the five consecutive Business Days ending on and including the date that the Investor receives the Company Termination Notice."
"(d)This Agreement shall automatically terminate on the date that the Company sells and the Investor purchases $5,000,000 of Purchase Shares as provided herein, without any action or notice on the part of any party and without any liability whatsoever of any party to any other party under this Agreement (except as set forth below)."
"(e)If, for any reason or for no reason, $5,000,000 of Purchase Shares has not been purchased in accordance withSection2of this Agreement by the Maturity Date, this Agreement shall automatically terminate on the Maturity Date, without any action or notice on the part of any party and without any liability whatsoever of any party to any other party under this Agreement (except as set forth below)."
"If to the Company: | With a copy to (which shall not constitute notice or service of process): ---|---  |  Ecoark Holdings, Inc. | Carmel, Milazzo & DiChiara, LLP 3333 S Pinnacle Hills Parkway, Suite 220 | 261 Madison Avenue, 9th Floor Rogers, AR 72758 | New York, NY 10016 Telephone: (479) 259-2977 | Telephone:(646) 838-1312 E-mail: RMay@ecoarkusa.com | E-mail: pdichiara@cmdllp.com Attention: Randy May | Attention: Peter DiChiara, Esq.  |  | 21|  ---|---|--- "
"If to the Investor: | With a copy to (which shall not constitute notice or service of process): ---|---  |  RedDiamond Partners LLC | Robinson Brog Leinwand Green Genovese & Gluck P.C. 156 West Saddle River Road | 875 Third Avenue, 9th Floor Saddle River, NJ 07458 | New York, NY 10022 Telephone: (201) 818-5657 | Telephone: (212) 603-6300 E-mail: | E-mail: ded@robinsonbrog.com Attention: John DeNobile | Attention: David E. Danovitch, Esq. "
"or at such other address and/or facsimile number and/or to the attention of such other Person as the recipient party has specified by written notice given to each other party three (3) Business Days prior to the effectiveness of such change.Written confirmation of receipt (A) given by the recipient of such notice, consent or other communication, (B) mechanically or electronically generated by the sender's facsimile machine or email account containing the time, date, and recipient facsimile number or email address, as applicable, and an image of the first page of such transmission or (C) provided by a nationally recognized overnight delivery service, shall be rebuttable evidence of personal service, receipt by facsimile or receipt from a nationally recognized overnight delivery service in accordance with clause (i), (ii) or (iii) above, respectively."
" | THE COMPANY: ---|---  |   | ECOARK HOLDINGS, INC.   |  |   | By: | /s/ Randy May  | Name: | Randy May  | Title: | Chief Executive Officer  |  |   | INVESTOR:  |   | REDDIAMOND PARTNERS LLC   |  |   | By: | /s/ John DeNobile  | Name: | John DeNobile  | Title: | Member "
"Purchase Consideration. The total Purchase Consideration to be paid by the Buyer to the Sellers for the purchase of the RSA Membership Interests is NINETY-FIVE MILLION FIVE HUNDRED THOUSAND (95,500,000) shares of PAYM restricted common stock. The Purchase Consideration will be immediately and unconditionally issued to the Sellers in proportion to their pro rata membership interests in RSA, as shown on an Exhibit to this Agreement."
"Representations and Warranties of Sellers. As an inducement to the Buyer to enter into this Agreement, the Sellers, to the best knowledge of the Sellers, represent and warrant to the Buyer that as of the date of this Agreement and the Closing Date [All representations and warranties from RSA are solely from its managing members on the date of this Agreement and the Closing Date]:"
"Litigation. There is no: (a)action, suit or proceeding pending or threatened against the Sellers, RSA, or the RSA Membership Interests; or (b)proceeding, investigation, charges, audit or inquiry threatened or pending before or by any federal, state, municipal or other governmental court, department, commission, board, bureau, agency or instrumentality which might result in an adverse effect on the Sellers, RSA or the RSA Membership Interests."
"Authority. The Sellers have taken all necessary action(s) to authorize the execution, delivery and performance of this Agreement and have adequate power, authority and legal right to enter into, execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby. This Agreement is legal, valid and binding with respect to each of the Sellers and RSA, and is enforceable in accordance with its terms. On execution, delivery and performance of this Agreement in accordance with its terms, the Buyer will own one hundred percent (100%) of the RSA Membership Interests free of all claims, liens, encumbrances and liabilities."
"Each Party agrees to indemnify, defend and hold harmless the other Party, and its parent company, affiliates, subsidiaries, officers, employees, directors, shareholders, members, representatives, agents, successors and permitted assigns (collectively, the Indemnified Parties) from and against any claims, litigation, liabilities, losses, damages (including, without limitation, incidental, consequential, special and punitive), expenses (including, without limitation, reasonable attorney and paralegal fees and costs at all judicial levels including appellate proceedings), whether in tort, negligence, contract, strict liability or under any other legal theory, that may arise or be asserted against the Indemnified Parties based on the other Partys breach of this Agreement, a violation of applicable laws and regulations, or fraud or misrepresentation, except such indemnity shall not apply if caused by the negligence, willful misconduct or omission of the Indemnified Parties."
"Default. If a Party fails to perform any obligation contained in this Agreement, the Party claiming default will serve written notice to the other Party specifying the nature of such default and demanding performance. If such default shall continue for more than ten (10) calendar days after notice from the non-breaching Party, then the non-breaching Party may, at its option, terminate this Agreement by notice to that effect, but if that default cannot reasonably be cured within that cure period and a diligent effort has been commenced by the breaching Party within that cure period which is diligently prosecuted to completion, no default shall be deemed to exist; provided, however, if no cure has occurred, the non-breaching Party will be entitled to exercise all remedies arising at law or in equity by reason of such default, including, without limitation, specific performance of this Agreement or any one or more of the provisions herein contained since money damages at law may not be an adequate remedy for a Partys violation of this Agreement."
"Cooperation. Prior to and at all times following the execution of this Agreement the Parties agree to execute and deliver, or cause to be executed and delivered, such documents and do, or cause to be done, such other acts and things as might reasonably be requested by any Party to this Agreement to assure that the benefits of this Agreement are realized by the Parties."
"Entire Agreement. This Agreement and any document executed in connection herewith on or after the date of this Agreement (the Other Documents) constitute the entire agreement between the Parties with respect to the subject matter hereof; totally replace any and all prior and contemporaneous understanding, representations, warranties or promises among the Parties; and there are no agreements, understandings, promises, warranties or representations except as set forth herein or in the Other Documents."
"Attorney Fees. If any Party institutes an action or proceeding against any other Party arising from or relating to the provisions of this Agreement, the Party to such action or proceeding which does not prevail will reimburse the prevailing Party therein, as determined by a court of competent jurisdiction, for the reasonable expenses of attorneys fees, court costs and disbursements incurred by the prevailing Party, at all judicial levels. The Parties agree that such litigation shall only be heard in state or federal court located in Broward County, Florida and each Party accepts that venue and waives any objections to that venue; and each Party further waives its right to a trial by jury."
"Accepted Servicing Practices shall mean with respect to any Loan, those accepted and prudent mortgage servicing practices (including collection procedures) of prudent mortgage lending institutions that service mortgage loans of the same type as the Loans in the jurisdiction where the related Mortgaged Property is located, and which are in accordance with FHA Regulations, VA Regulations, Ginnie Mae, Freddie Mac and Fannie Mae servicing practices and procedures for MBS pool mortgages, as defined in the FHA, VA, Ginnie Mae, Freddie Mac and Fannie Mae servicing guides including future updates, and in a manner at least equal in quality to the servicing Seller or Sellers designee provides to mortgage loans and real estate owned properties which it owns in its own portfolio."
"Adjusted Tangible Net Worth shall mean, with respect to any Person, the excess of total assets (net of goodwill and intangible assets), which shall include the value of mortgage servicing rights in an amountequal to the lesser of (i) an amount calculated in accordance with GAAP or (ii) the MSR Value Cap, of such Person, over total liabilities of such Person, determined in accordance with GAAP."
"Cash Equivalents shall mean (a) securities with maturities of 90 days or less from the date of acquisition issued or fully guaranteed or insured by the United States Government or any agency thereof, (b) certificates of deposit and eurodollar time deposits with maturities of 90 days or less from the date of acquisition and overnight bank deposits of any commercial bank having capital and surplus in excess of $500,000,000, (c) repurchase obligations of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than seven days with respect to securities issued or fully guaranteed or insured by the United States Government, (d) commercial paper of a domestic issuer rated at least A-1 or the equivalent thereof by Standard and Poors Ratings Group (S&P) or P-1 or the equivalent thereof by Moodys Investors Service, Inc. (Moodys) and in either case maturing within 90 days after the day of acquisition, (e) securities with maturities of 90 days or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A by Moodys, (f) securities with maturities of 90 days or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the requirements of clause (b) of this definition, or (g) shares of money market mutual or"
"Change of Control shall mean the occurrence of any of the following: (a) with respect to Seller, the acquisition by any Person, or two or more Persons acting in concert, of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended) of outstanding shares of voting stock of Seller if after giving effect to such acquisition such Person or Persons owns twenty-five percent (25%) or more of such outstanding shares of voting stock, (b) Guarantor ceases to directly or indirectly own and control, of record and beneficially, 100% of the Equity Interests of Seller or any of Guarantors wholly owned Subsidiaries, including but not limited to those Persons identified on Schedule 3 attached hereto and (c) PennyMac Financial Services, Inc. ceases to be the sole managing member of the Guarantor."
"Environmental Laws shall mean any federal, state, foreign or local statute, law, rule, regulation, ordinance, code, guideline, written policy or rule of common law now or hereafter in effect, and any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, relating to the environment, employee health and safety or hazardous materials, including CERCLA, RCRA, the Federal Water Pollution Control Act, the Toxic Substances Control Act, the Clean Air Act, the Safe Drinking Water Act, the Oil Pollution Act of 1990, the Emergency Planning and the Community Right-to-Know Act of 1986, the Hazardous Material Transportation Act, the Occupational Safety and Health Act, and any state and local or foreign counterparts or equivalents."
"Gross Margin shall mean with respect to each Adjustable Rate Loan, the fixed percentage amount set forth in the related Note and the Loan Schedule that is added to the Index on each Adjustment Date in accordance with the terms of the related Note to determine the new Mortgage Interest Rate for such Loan."
"Income shall mean, with respect to any Purchased Loan or Security at any time, any principal and/or interest thereon and all dividends, sale proceeds (including, without limitation, any proceeds from the liquidation or securitization of such Purchased Loan or other disposition thereof), rent and other collections and distributions thereon (including, without limitation, any proceeds received in respect of mortgage insurance), but not including any servicing fees accrued in respect of periods on or after the initial Purchase Date with respect to such Purchased Loan or Security."
"Joint Securities Account Control Agreement shall mean that certain third amended and restated joint securities account control agreement, entered into by and among Deutsche Bank National Trust Company, as securities intermediary, Seller, Bank of America, N.A., Credit Suisse First Boston Mortgage Capital LLC and Buyer, as the same shall be amended, restated, supplemented or otherwise modified and in effect from time to time."
"Obligations shall mean (a) all of Sellers obligations to pay the Repurchase Price on the Repurchase Date and other obligations and liabilities (including, without limitation, the Commitment Fee) of Seller to Buyer, its Affiliates, Custodian or any other Person arising under, or in connection with, the Program Documents or directly related to the Purchased Loans, whether now existing or hereafter arising; (b) any and all sums paid by Buyer or on behalf of Buyer pursuant to the Program Documents in order to preserve any Purchased Loan or its interest therein; (c) in the event of any proceeding for the collection or enforcement of any of Sellersindebtedness, obligations or liabilities referred to in clause (a), the reasonable expenses of retaking, holding, collecting, preparing for sale, selling or otherwise disposing of or realizing on any Purchased Loan, or of any exercise by Buyer or any Affiliate of Buyer of its rights under the Program Documents, including without limitation, reasonable attorneys fees and disbursements and court costs; and (d) all of Sellers indemnity obligations to Buyer pursuant to the Program Documents."
"Price Differential shall mean, with respect to each Transaction as of any date of determination, the aggregate amount obtained by daily application of the Pricing Rate (or during the continuation of an Event of Default, by daily application of the Post-Default Rate) for such Transaction to the Purchase Price for such Transaction on a 360dayperyear basis for the actual number of days elapsed during the period commencing on (and including) the Purchase Date and ending on (but excluding) the date of determination (reduced by any amount of such Price Differential in respect of such period previously paid by Seller to Buyer with respect to such Transaction)."
"Program Documents shall mean this Agreement, the Custodial Agreement, the Guaranty, any Servicing Agreement, the Electronic Tracking Agreement, the Pricing Side Letter, the Intercreditor Agreement, the Joint Securities Account Control Agreement, the Joint Account Control Agreement, all Instruction Letters, if any, the Collection Account Control Agreement and any other agreement entered into by Seller, on the one hand, and Buyer and/or any of its Affiliates or Subsidiaries (or Custodian on its behalf) on the other, in connection herewith or therewith."
"Purchased Loans shall mean any Loans sold by Seller to Buyer in a Transaction, together with the related Records, the related Servicing Rights (which, for the avoidance of doubt, were sold by Seller and purchased by Buyer on the related Purchase Date), the portion of the Security related to such Loans, the related Takeout Commitment and the related Trade Assignment, if any, and with respect to each Loan, any related FHA Insurance Contract, any related VA Loan Guaranty Agreement, Sellers rights under any takeout commitment related to the Loans and other Purchased Items with respect to the Loans, such other property, rights, titles or interest as are specified on a Purchase Notice, and all instruments, chattel paper, and general intangibles comprising or relating to all of the foregoing."
"Reportable Event shall mean any of the events set forth in Section4043(b) of ERISA, other than those events as to which the thirty day notice period is waived under subsections .21, .22, .23, .24, .28, .29, .31, or .32 of PBGC Reg. 4043 (provided that a failure to meet the minimum funding standard of Section 412 of the Code or Sections 302 or 303 of ERISA, including, without limitation, the failure to make on or before its due date a required installment under Section 430(j) of the Code or Section 303(j) of ERISA, shall be a reportable event regardless of the issuance of any waivers in accordance with Section 412(d) of the Code)."
"Repurchase Date shall mean the date occurring on the earliest of (i) the 12th day of each month following the related Purchase Date (or if such date is not a Business Day, the following Business Day), (ii) any other Business Day set forth in the related Purchase Notice,(iii) the date determined by application of Section19, as applicable, or (iv) the Termination Date. In no event shall the Repurchase Date for any Transaction occur after the Termination Date."
"Restricted Payments shall mean with respect to any Person, collectively, all dividends or other distributions of any nature (cash, securities, assets or otherwise), and all payments, by virtue of redemption or otherwise, on any class of equity securities (including, without limitation, warrants, options or rights therefor) issued by such Person, whether such securities are now or may hereafter be authorized or outstanding and any distribution in respect of any of the foregoing, whether directly or indirectly."
"Investor, as applicable, agrees to purchase a Security from Seller, which such commitments in any case of (a)-(c) above, shall be enforceable and in full force and effect, and shall be, upon request by Buyer, validly and effectively assigned to Buyer pursuant to a Trade Assignment and (ii) with respect to any Jumbo Loan, either a Nonbinding Jumbo Takeout Agreement or a Binding Jumbo Takeout Commitment."
"Uniform Commercial Code shall mean the Uniform Commercial Code as in effect on the date hereof in the State of New York; provided that if by reason of mandatory provisions of law, the perfection or the effect of perfection or non-perfection of the security interest in any Purchased Items is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, Uniform Commercial Code shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or effect of perfection or non-perfection."
"U.S. Person shall mean (1) a citizen or resident of the United States, (2) a corporation or partnership organized in or under the laws of the United States or any state thereof or the District of Columbia (other than a partnership that is not treated as a U.S. person under any applicable U.S. Department of Treasury Regulations), (3) an estate the income of which is includible in gross income for United States tax purposes, regardless of its source, or (4) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more such U.S. persons have authority to control all substantial decisions of such trust.Notwithstanding the preceding sentence, to the extent provided in applicable U.S. Department of Treasury Regulations, certain trusts in existence on August 20, 1996, and treated as U.S. persons prior to such date that elect to continue to be so treated also will be considered U.S. persons."
"(b)Unless otherwise agreed, Seller shall request that Buyer enter into a Transaction withSeller by delivering (i) to Buyer and Custodian a Transaction Notice, (ii) to Buyer and Custodian an estimate of the Purchase Price for Eligible Loans to be purchased on the Purchase Date (which estimate may be included in a Transaction Notice), and (iii) to Custodian, the Mortgage Files for each such Eligible Loan proposed to be included in a Transaction by the times set forth in the Custodial Agreement, each in accordance with the times specified in the Custodial Agreement."
"(ii)Buyer determines, which determination shall be conclusive, that the Applicable Margin plus the relevant rate of interest referred to in the definition of LIBO Base Rate in Section 2 upon the basis of which the rate of interest for Transactions is to be determined is not likely to adequately cover the cost to Buyer of purchasing and holding the Loans hereunder; or"
"Where a particular term of a Transaction extends over the date on which Income is paid in respect of any Purchased Loan subject to that Transaction, such Income shall be the property of Buyer.Notwithstanding the foregoing, and provided no Default has occurred and is continuing, Buyer agrees that Seller shall be entitled to receive an amount equal to all Income received in respect of the Purchased Loans, whether by Buyer, Custodian or any servicer or any other Person, which is not otherwise received by Seller, to the full extent it would be so entitled if the Purchased Loans had not been sold to Buyer; provided that any Income received by Seller while the related Transaction is outstanding shall be deemed to be held by Seller solely in trust for Buyer pending the repurchase on the related Repurchase Date.Upon and after the occurrence of a Default, the Seller shall cause all Income to be deposited into the Collection Account within two (2) Business Days of receipt by the Servicer or Seller, as applicable.Upon the occurrence of a Default, Seller shall either (i) hold all such Income in the Collection Account or (ii) at the sole option of Buyer, cause all such Income to be remitted directly to the account designated by Buyer."
"(a)Seller and Buyer intend that the Transactions hereunder be sales to Buyer of the Purchased Loans (including, without limitation, the related Servicing Rights) and not loans from Buyer to Seller secured by the Purchased Loans.However, in order to preserve Buyers rights under this Agreement in the event that a court or other forum recharacterizes the Transactions hereunder as other than sales, and as security for Sellers performance of all of its Obligations, Seller hereby grants Buyer a perfected first priority security interest in all of Sellers rights, title and interest in and to the following property, whether now existing or hereafter acquired: (i) all Purchased Loans identified on a Purchase Notice delivered by Buyer to Seller and Custodian from time to time, (ii) all related Loan Documents, including without"
"limitation all promissory notes, (iii) any other collateral pledged or otherwise relating to such Purchased Loans, together with all files, material documents, instruments, surveys (if available), certificates, correspondence, appraisals, computer records, computer storage media, Loan accounting records and other books and records relating thereto, (iv) the Servicing Records, and the related Servicing Rights, (v) all rights of Seller to receive from any third party or to take delivery of any Records including without limitation any Servicing Records or other documents which constitute a part of the Mortgage File or Servicing File, (vi) the Collection Account and all Income relating to such Purchased Loans, (vii) all Loan Guaranty Certificates, other mortgage guaranties and insurance (issued by governmental agencies or otherwise) and any Mortgage Insurance Certificate or other document evidencing such mortgage guaranties or insurance relating to any Purchased Loans and all claims and payments thereunder and all rights of Seller to receive from any third party or to take delivery of any of the foregoing, (viii) all interests in real property collateralizing any Purchased Loans, (ix) all other insurance policies and insurance proceeds relating to any Purchased Loans or the related Mortgaged Property andall Insurance Proceeds and all rights of Seller to receive from any third party or to take delivery of any of the foregoing, (x) any purchase agreements or other agreements, contracts or any related takeout commitments, including without limitation any Takeout Commitments and Trade Assignments to the extent related to Purchased Loans subject to a Transaction (including the rights to receive the related takeout price and Buyers pro rata interest in the Security related to Purchased Loans subject to a Transaction as evidenced by such Takeout Commitments) to the extent relating to or constituting any or all of the foregoing and all rights to receive documentation relating thereto, (xi) all accounts, chattel paper, commercial tort claims, deposit accounts, documents, equipment, general intangibles, goods, instruments, inventory, investment property, letter of credit rights, and securities accounts as each of those terms is defined in the Uniform Commercial Code and all cash and Cash Equivalents and all products and proceeds relating to or constituting any or all of the foregoing, and (xii) any and all replacements, substitutions, distributions on or proceeds of any or all of the foregoing (collectively the Purchased Items)."
"(b)At any time and from time to time, upon the written request of Buyer, and at Sellers expense, Seller will promptly and duly execute and deliver, or will promptly cause to be executed and delivered, such further instruments and documents and take such further action as Buyer 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, the filing of any financing or continuation statements under the Uniform Commercial Code in effect in any jurisdiction with respect to the Purchased Items and the liens created hereby.Seller also hereby authorizes Buyer to file any such financing or continuation"
"(g)Buyers duty with respect to the custody, safekeeping and physical preservation of the Purchased Items in its possession, under Section9-207 of the Uniform Commercial Code or otherwise, shall be to deal with it in the same manner as Buyer deals with similar property for its own account. Neither Buyer nor any of its directors, officers or employees shall be liable for failure to demand, collect or realize upon all or any part of the Purchased Items or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Purchased Items upon the request of Seller or otherwise."
"(xiv)With respect to each Purchased Loan that is subject to a security interest (including any precautionary security interest) immediately prior to the Purchase Date, Buyer shall have received a Security Release Certification for such Purchased Loan that is duly executed by the related secured party and Seller.If necessary, such secured party shall have filed Uniform Commercial Code termination statements in respect of any Uniform Commercial Code filings made in respect of such Loan, and each such release and Uniform Commercial Code termination statement has been delivered to Buyer prior to each Transaction and to Custodian as part of the Mortgage File."
"Upon timely payment in full of the Repurchase Price then owing with respect to a Purchased Loan and the satisfaction of all other Obligations (if any) then outstanding, unless a Default or Event of Default shall have occurred and be continuing, then (a) Buyer shall be deemed to have terminated any security"
"interest that Buyer may have in such Purchased Loan and any Purchased Items solely related to such Purchased Loan and (b) with respect to such Purchased Loan, Buyer shall direct Custodian to release such Purchased Loan and any Purchased Items solely related to such Purchased Loan to Seller unless such release and termination would give rise to or perpetuate a Margin Deficit.Seller shall give at least one (1) Business Day prior written notice to Buyer if such repurchase shall occur on any date other than the Repurchase Date."
"(a)Existence.Each Seller Party (a) is a limited liability company, duly organized, validly existing and in good standing under the laws of the jurisdiction in which it was formed, as specified in this Agreement, (b) has all requisite corporate or other power, and has all governmental licenses, authorizations, consents and approvals, necessary to (i) own its assets and carry on its business as now being or as proposed to be conducted and (ii) with respect to the Seller, acquire, own, sell, assign, pledge and repurchase the Purchased Loans and service and administer the Purchased Loans, (c) is qualified to do business and is in good standing in all other jurisdictions in which the nature of the business conducted by it makes such qualification necessary, except where failure so to qualify would not be reasonably likely (either individually or in the aggregate) to have a Material Adverse Effect, and (d) is in compliance in all material respects with all Requirements of Law.Sellers tax identification number is 26-2049351.Sellers fiscal year is the calendar year.No Seller Party has changed its name within the past twelve (12) months."
"(e)Action.Each Seller Party has all necessary corporate or other power, authority and legal right to execute, deliver and perform its obligations under each of the Program Documents to which it is a party; the execution, delivery and performance by such Seller Party of each of the Program Documents to which it is a party has been duly authorized by all necessary corporate or other action on its part; and each Program Document has been duly and validly executed and delivered by each Seller Party and constitutes a legal, valid and binding obligation of such Seller Party, enforceable against such Seller Party in accordance with its terms."
"(iv)Upon the filing of financing statements on Form UCC-1 naming Buyer as Secured Party and Seller as Debtor, and describing the Purchased Items, in the jurisdictions and recording offices listed on Schedule 2 attached hereto, the security interests granted hereunder in the Purchased Items will constitute fully perfected first priority security interests under the Uniform Commercial Code in all right, title and interest of Seller in, to and under such Purchased Items, which can be perfected by filing under the Uniform Commercial Code."
"(o)True and Complete Disclosure.The information, reports, financial statements, exhibits and schedules furnished in writing by or on behalf of each Seller Party to Buyer in connection with the negotiation, preparation or delivery of this Agreement and the other Program Documents or included herein or therein or delivered pursuant hereto or thereto, when taken as a whole, do not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements herein or therein, in light of the circumstances under which they were made, not misleading. All written information furnished after the date hereof by or on behalf of each Seller Party or any of its Subsidiaries to Buyer in connection with this Agreement and the other Program Documents and the transactions contemplated hereby and thereby will be true, complete and accurate in every material respect, or (in the case of projections) based on reasonable estimates, on the date as of which such information is stated or certified. There is no fact known to a Responsible Officer that, after due inquiry, could reasonably be expected to have a Material Adverse Effect that has not been disclosed herein, in the other Program Documents or in a report, financial statement, exhibit, schedule, disclosure letter or other writing furnished to Buyer for use in connection with the transactions contemplated hereby or thereby."
"(vi)From time to time (1) such other information regarding the financial condition, operations, well being or business of any Seller Party as Buyer may reasonably request, within two (2) Business Days of such request and (2) if such Loan was consummated on or after January 10, 2014, copies of all documentation in connection with the underwriting and origination of any Purchased Loan that evidences compliance with the Ability to Repay Rule and the QM Rule, as Buyer may reasonably request, as soon as possible but in any event no later than three (3) Business Days following such request;"
"(ix)Within five (5) Business Days after receipt by Seller of a request from Buyer, any loan level information requested by Buyer with respect to mortgage loans (which are acceptable for delivery to any Agency at the time such loans were originated by or acquired by Seller) held on the books of Seller (whether or not such mortgage loans are held for investment by Seller);"
"(xv)Within one (1) Business Day of any margin call (however defined or described in the applicable Indebtedness documents) or other similar request (including a claim under a guaranty) is made upon any Seller Party under any Indebtedness of any Seller Party in an aggregate amount in excess of $1,000,000, notice of such margin call or other request;"
"(xvi)As soon as reasonably possible, and in any event within fifteen (15) days after a Responsible Officer of any Seller Party knows or has reason to believe, that any of the events or conditions specified below with respect to any Plan or Multiemployer Plan has occurred or exists, a statement signed by a senior financial officer of such Seller Party setting forth details respecting such event or condition and the action, if any, that such Seller Party or its ERISA Affiliate proposes to take with respect thereto (and a copy of any report or notice required to be filed with or given to PBGC by such Seller Party or an ERISA Affiliate with respect to such event or condition):"
"(F)the adoption of an amendment to any Plan that, pursuant to Section 401(a)(29) of the Code, would result in the loss of tax-exempt status of the trust of which such Plan is a part if any Seller Party or an ERISA Affiliate fails to timely provide security to such Plan in accordance with the provisions of said Sections."
"(b)Litigation.Each Seller Party will promptly, and in any event within three (3) days after service of process on any of the following, give to Buyer notice of all legal or arbitrable proceedings affecting such Seller Party or any of its Subsidiaries that (i) questions or challenges the validity or enforceability of any of the Program Documents, (ii) as to which there is a reasonable likelihood that an adverse determination would result in a Material Adverse Effect or (iii) seeks to prevent the consummation of any Transaction."
"(vi)permit representatives of Buyer, during normal business hours upon three (3) Business Days prior written notice at a mutually desirable time or at any time during the continuance of an Event of Default, to examine, copy and make extracts from its books and records, to inspect any of its Properties, and to discuss its"
"(xiii)notice of any amendments, modifications or waivers of any term or condition of or extension of the scheduled maturity date or modification of the interest rate of any item of the Purchased Loan or settlement or compromise of any claim in respect of any Purchased Loans that in the aggregate during any calendar month exceed 3% of the aggregate outstanding Purchase Price of all Purchased Loans; and"
"(h)OFAC.At all times throughout the term of this Agreement, each Seller Party (a) shall be in full compliance with all applicable orders, rules, regulations and recommendations of OFAC and (b) shall not permit any Purchased Loans to be maintained, insured, traded, or used (directly or indirectly) in violation of any United States statutes, rules or regulations, in a Prohibited Jurisdiction or by a Prohibited Person."
"(r)Financial Covenants of Guarantor. In the event that Guarantor becomes an operating company or ceases to be a holding company, Seller agrees, at the sole option of Buyer, to enter into an amendment to this Agreement to require Guarantor to make financial representations, warranties and covenants to Buyer, the substance of which shall containfinancial tests substantially similar to the financial tests contained in Sections 12(p) and 13(q) herein.Seller shall provide prompt notice to Buyer in the event that Guarantor acquires any new Subsidiary."
"(aa)Trade Assignments.With respect to any Purchased Loan or Security subject to a Takeout Commitment, upon request by Buyer, Seller shall deliver to Buyer as soon as possible but no more than one (1) Business Day following the date on which Seller enters into a Takeout Commitment for such Purchased Loan or Security, a duly executed Trade Assignment together with a copy of the Takeout Commitment."
"(cc)Additional Committed Repurchase or Warehouse Facility.Seller shall maintain throughout the term of this Agreement, with a nationally recognized and established counterparty (other than Buyer or Sellers parent or any Affiliates of Seller), one or more committed loan repurchase or warehouse facilities for mortgage loans of a credit quality similar to the Loans to be purchased hereunder, originated or acquired by Seller, in an aggregate amount not less than $75,000,000, which facility or facilities shall accommodate jumbo mortgage loans in an amount not less than $7,000,000 shall have a term at least equal to that provided under this Agreement, and the terms and conditions comparable to those provided under this Agreement, including as to the financial condition of Seller. Notwithstanding the foregoing, in the event that any facilities of the type listed above that are in place as of the date hereof or at any time hereafter, are terminated or the amount available for borrowing thereunder is reduced such that the aggregate amount available for borrowing under such facility or facilities is less than $75,000,000, Seller shall not be deemed to be in breach of this Section 13(bb) as a result of such termination or reduction to the extent that (1) a term sheet for a replacement facility or facilities that meet the criteria set forth above is in place with another lender or lenders within sixty (60) days of such termination or reduction, and (2) such replacement facility or facilities is in place and available for borrowing by the Seller within one hundred twenty (120) days of such termination or reduction. "
"(iii)For so long as Buyer has an interest in or lien on any Purchased Loan, Seller will hold or cause to be held all related Records in trust for Buyer.Seller shall notify, or cause to be notified, every other party holding any such Records of the interests and liens granted hereby."
"(iv)Upon reasonable advance notice from Custodian or Buyer, Seller shall (x) make any and all such Records available to Custodian or Buyer to examine any such Records, either by its own officers or employees, or by agents or contractors, or both, and make copies of all or any portion thereof, (y) permit Buyer or its authorized agents to discuss the affairs, finances and accounts of each Seller Party with its respective chief operating officer and chief financial officer and to discuss the affairs, finances and accounts of each Seller Party with its independent certified public accountants."
"(ss)CRA Loan Reporting.On a weekly basis,Seller shall deliver to Buyer a report identifying each CRA Loan subject to Transactions and describing in reasonable detail (i) the status of due diligence for each such CRA Loan, (ii) expected timing and eligibility in connection with the sale of each such CRA Loan to CMI, and (iii) any other information reasonably requested by Buyer with respect to each such CRA Loan."
"Upon discovery by Seller of a breach of any of the representations and warranties set forth on Schedule 1 to this Agreement, Seller shall give prompt written notice thereof to Buyer.It is understood and agreed that the representations and warranties set forth in Schedule 1 with respect to the Purchased Loans shall survive delivery of the respective Mortgage Files to Custodian and shall inure to the benefit of Buyer.The fact that Buyer has conducted or has failed to conduct any partial or complete due diligence investigation in connection with its purchase of any Purchased Loan shall not affect Buyers right to demand repurchase of such Purchased Loan as provided under this Agreement.Seller shall, upon the earlier of Sellers discovery or Seller receiving notice with respect to any Purchased Loan of (i) any breach of a representation or warranty contained in Schedule 1, or (ii) any failure to deliver any of the items required to be delivered as part of the Mortgage File within the time period required for delivery pursuant to the Custodial Agreement, promptly cure such breach or delivery failure in all material respects.If on the Business Day after the earlier of Sellers discovery of such breach or delivery failure or Seller receiving notice thereof that such breach or delivery failure has not been remedied by Seller and such breach or delivery failure would cause Buyer to require the repurchase of such Purchased Loan, Seller shall promptly upon receipt of written instructions from Buyer repurchase such Purchased Loan at the Repurchase Price with respect to such Purchased Loan by wire transfer to the account designated by Buyer.Income with respect to such Purchased Loans received by Buyer after payment of the Repurchase Price shall be remitted to Seller in accordance with Section 7. In the event that it is discovered that the circumstances with respect to any Purchased Loan are not accurately reflected in any of the applicable representations and warranties made by Seller set forth inSchedule 1 to this Agreement, notwithstanding the actual knowledge or lack of knowledge of Seller, and notwithstanding that such representation and warranty is made to the best of Sellers knowledge, then such representation and warranty shall be deemed to be breached."
"(f)Any final judgment or judgments or order or orders for the payment of money in excess of $1,000,000 in the aggregate (to the extent that it is, in the reasonable determination of Buyer, uninsured and provided that any insurance or other credit posted in connection with an appeal shall not be deemed insurance for these purposes) shall be rendered against any Seller Party by one or more courts, administrative tribunals or other bodies having jurisdiction over them and the same shall not be discharged (or provisions shall not be made for such discharge) or bonded, or a stay of execution thereof shall not be procured, within sixty (60) days from the date of entry thereof and such Seller Party shall not, within said period of sixty (60) days, or such longer period during which execution of the same shall have been stayed or bonded, appeal therefrom and cause the execution thereof to be stayed during such appeal; or"
(c)Buyer shall have the right to obtain physical possession of the Servicing Records and all other files of Seller relating to the Purchased Loans and all documents relating to the Purchased Loans which are then or may thereafter come into the possession of Seller or any third party acting for Seller and Seller shall deliver to Buyer such assignments as Buyer shall request.
"Except as otherwise expressly permitted by this Agreement, all notices, requests and other communications provided for herein and under the Custodial Agreement (including, without limitation, any modifications of, or waivers, requests or consents under, this Agreement) shall be given or made in writing (including, without limitation, by telex or telecopy or Electronic Transmission) delivered to the intended recipient at the Address for Notices specified below its name on the signature pages hereof); or, as to any party, at such other address as shall be designated by such party in a written notice to each other party. Except as otherwise provided in this Agreement and except for notices given by Seller under Section3(b) (which shall be effective only on receipt), all such communications shall be deemed to have been duly given when transmitted (i) by Electronic Transmission and followed by written notice via overnight courier or (ii) by telex or telecopier or personally delivered or, in the case of a mailed notice, upon receipt, in each case given or addressed as aforesaid."
"(a)Seller agrees to hold Buyer, its Affiliates and each of their officers, directors, employees, agents and advisors (each an Indemnified Party) harmless from and indemnify any Indemnified Party against all liabilities, losses, damages, judgments, costs and expenses of any kind which may be imposed on, incurred by or asserted against such Indemnified Party (collectively, the Costs) relating to or arising out of this Agreement, any other Program Document or any transaction contemplated hereby or thereby, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, any other Program Document or any transaction contemplated hereby or thereby, that, in each case, results from anything other than any Indemnified Partys gross negligence or willful misconduct.Without limiting the generality of the foregoing, Seller agrees to hold any Indemnified Party harmless from and indemnify such Indemnified Party against all Costs with respect to all Loans relating to or arising out of any violation or alleged violation of any environmental law, rule or regulation or any consumer credit laws, including without limitation laws with respect to unfair or deceptive lending practices and predatory lending practices, the Truth in Lending Act and/or the Real Estate Settlement Procedures Act, that, in each case, results from anything other than such Indemnified Partys gross negligence or willful misconduct.In any suit, proceeding or action brought by an Indemnified Party in connection with any Loan for any sum owing thereunder, or to enforce any provisions of any Loan, Seller will save, indemnify and hold such Indemnified Party harmless from and against all expense, loss or damage suffered by reason of any defense, set- off, counterclaim, recoupment or reduction of liability whatsoever of the account debtor or obligor thereunder, arising out of a breach by Seller of any obligation thereunder or arising out of any other agreement, indebtedness or liability at any time owing to or in favor of such account debtor or obligor or its successors from Seller.Seller also agrees to reimburse any Indemnified Party as and when billed by such Indemnified Party for all such Indemnified Partys costs and expenses incurred in connection with the enforcement or the preservation of such Indemnified Partys rights under this Agreement, any other Program Document or any transaction contemplated hereby or thereby, including without limitation the reasonable fees and disbursements of its counsel.Seller hereby acknowledges that the obligations of Seller under this Agreement are recourse obligations of Seller."
"Seller hereby expressly waives, to the fullest extent permitted by law, every statute of limitation on a deficiency judgment, any reduction in the proceeds of any Purchased Items as a result of restrictions upon Buyer or Custodian contained in the Program Documents or any other instrument delivered in connection therewith, and any right that it may have to direct the order in which any of the Purchased Items shall be disposed of in the event of any disposition pursuant hereto."
"Seller agrees to do such further acts and things and to execute and deliver to Buyer such additional assignments, acknowledgments, agreements, powers and instruments as are reasonably required by Buyer to carry into effect the intent and purposes of this Agreement and the other Program Documents, to perfect the interests of Buyer in the Purchased Items or to better assure and confirm unto Buyer its rights, powers and remedies hereunder and thereunder."
"This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument, and any of the parties hereto may execute this Agreement by signing any such counterpart.The parties agree that this Agreement, any documents to be delivered pursuant to this Agreement and any notices hereunder may be transmitted between them by e-mail and/or by facsimile.The parties intend that faxed signatures and electronically imaged signatures such as .pdf files shall constitute original signatures and are binding on all parties."
"Buyer shall have free and unrestricted use of all Purchased Loans and Purchased Items and nothing in this Agreement shall preclude Buyer from engaging in repurchase transactions with the Purchased Loans and Purchased Items or otherwise selling, pledging, repledging, transferring, assigning, hypothecating, rehypothecating or otherwise conveying the Purchased Loans and Purchased Items. Nothing contained in this Agreement shall obligate Buyer to segregate any Purchased Loans or Purchased Items delivered to Buyer by Seller."
(a)Seller may assign any of its rights or obligations hereunder only with the prior written consent of Buyer.Buyer may assign or transfer to any bank or other financial institution that makes or invests in repurchase agreements or loans or any Affiliate of Buyer all or any of its rights and obligations under this Agreement and the other Program Documents.
"connection with such underwriting, including, but not limited to, providing Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Loans in the possession, or under the control, ofSeller.In addition, Buyer has the right to perform continuing Due Diligence Reviews (including, without limitation, operational, legal, corporate and background due diligence) of Seller, Servicer and its Affiliates, directors, and their respective Subsidiaries and the officers, employees and significant shareholders thereof.Seller and Buyer further agree that all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with Buyers activities pursuant to this Section44 shall be paid by Seller."
"In addition to any rights and remedies of Buyer provided by this Agreement and by law, Buyer shall have the right, without prior notice to Seller, any such notice being expressly waived by Seller to the extent permitted by applicable law, upon any amount becoming due and payable by Seller hereunder (whether at the stated maturity, by acceleration or otherwise) to set-off and appropriate and apply against such amount any and all Property and deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by Buyer or any Affiliate thereof to or for the credit or the account of Seller or any other Credit Party.Buyer may set-off cash, the proceeds of the liquidation of any Purchased Items and all other sums or obligations owed by Buyer or its Affiliates to Seller against all of Sellers or any Credit Partys obligations to Buyer or its Affiliates, whether under this Agreement with respect to Seller or any Citi Credit Facility with respect to any Credit Party or under any other agreement between the parties or between Seller or any Credit Party and any Affiliate of Buyer, or otherwise, whether or not such obligations are then due, without prejudice to Buyers or its Affiliates right to recover any deficiency.Buyer agrees promptly to notify Seller and each Credit Party after any such set-off and application made by Buyer; provided that the failure to give such notice shall not affect the validity of such set-off and application."
"This Agreement and the other Program Documents embody the entire agreement and understanding of the parties hereto and thereto and supersede any and all prior agreements, arrangements and understandings relating to the matters provided for herein and therein.No alteration, waiver, amendments, or change or supplement hereto shall be binding or effective unless the same is set forth in writing by a duly authorized representative of each party hereto."
"(b)In the event that Agent and the other party elect (or are deemed to elect) to treat Transactions under the Agreement as transactions on behalf of separate Principals, the parties agree that (i) Agent will provide the other party, together with the notice described in Section2(b) of this Annex I, notice specifying the portion of each Transaction allocable to the account of each of the Principals for which it is acting (to the extent that any such Transaction is allocable to the account of more than one Principal); (ii) the portion of any individual Transaction allocable to each Principal shall be deemed a separate Transaction under the Agreement; (iii) the margin maintenance obligations of Seller under Section6(a) of the Agreement shall be determined on a TransactionbyTransaction basis (unless the parties agree to determine such obligations on a PrincipalbyPrincipal basis); and (iv) Buyers remedies under the Agreement upon the occurrence of an Event of Default shall be determined as if Agent had entered into a separate Agreement with the other party on behalf of each of its Principals."
"(m)Location and Type of Mortgaged Property.The Mortgaged Property is located in the state identified in the Loan Schedule and consists of a single parcel of real property with a detached single family residence erected thereon, or a two- to four-family dwelling, or an individual condominium unit in a condominium project, or an individual unit in a planned unit development or a de minimis planned unit development, provided, however, that any condominium unit or planned unit development shall conform with the applicable Fannie Mae and Freddie Mac requirements regarding such dwellings, and that no residence or dwelling is a mobile home or a manufactured dwelling. No portion of the Mortgaged Property is used for commercial purposes."
"(2)covenants, conditions and restrictions, rights of way, easements and other matters of the public record as of the date of recording acceptable to prudent mortgage lending institutions generally and specifically referred to in the lenders title insurance policy delivered to the originator of the Loan and (a) referred to or otherwise considered in the appraisal made for the originator of the Loan or (b) which do not adversely affect the Appraised Value of the related Mortgaged Property set forth in such appraisal; and"
"(s)LTV.As of the date of origination of the Loan, the LTV is as identified on the Loan Schedule.No Loan (other than a Jumbo Loan) shall have an LTV or CLTV greater than 100%. No Jumbo Loan shall have an LTV or CLTV greater than (i) 80%, with respect to any Jumbo Loan where the related Mortgage Property is a primary residence or (ii) 70%,with respect to any Jumbo Loan where the related Mortgage Property is a secondary residence or investment property."
"(gg)No Buydown Provisions; No Graduated Payments or Contingent Interests.The Loan does not contain provisions pursuant to which Monthly Payments are paid or partially paid with funds deposited in any separate account established by Seller, the Mortgagor, or anyone on behalf of the Mortgagor, or paid by any source other than the Mortgagor nor does it contain any other similar provisions which may constitute a buydown provision.The Loan is not a graduated payment mortgage loan and the Loan does not have a shared appreciation or other contingent interest feature."
"(zz)Ground Leases.With respect to each ground lease to which the Mortgaged Property is subject (a Ground Lease): (i) the Mortgagor is the owner of a valid and subsisting interest as tenant under the Ground Lease; (ii) the Ground Lease is in full force and effect, unmodified and not supplemented by any writing or otherwise; (iii) all rent, additional rent and other charges reserved therein have been paid to the extent they are payable to the date hereof; (iv) the Mortgagor enjoys the quiet and peaceful possession of the estate demised thereby, subject to any sublease; (v) the Mortgagor is not in default under any of the terms thereof and there are no circumstances which, with the passage of time or the giving of notice or both, would constitute an event of default thereunder; (vi)the lessor under the Ground Lease is not in default under any of the terms or provisions thereof on the part of the lessor to be observed or performed; (vii) the lessor under the Ground Lease has satisfied all of its repair or construction obligations, if any, to date pursuant to the terms of the Ground Lease; (viii) the remaining term of the Ground Lease extends not less than ten (10) years following the maturity date of such Loan; and (ix) the execution, delivery and performance of the Mortgage do not require the consent (other than those consents which have been obtained and are in full force and effect) under, and will not contravene any provision of or cause a default under, the Ground Lease."
"Protection Act.Seller has measures in place designed to monitor its lending practices and platform-level origination details to prevent discrimination on any of the foregoing prohibited bases.Furthermore, Seller has not discouraged, and will not discourage, the completion of any credit application based on any of the foregoing prohibited bases. In addition, Seller has complied with all anti-redlining provisions and equal credit opportunity laws applicable under all Requirements of Law."
"You further agree that, upon receipt written notification by Buyer that an Event of Default has occurred under the Agreement, Buyer shall assume all of the rights and obligations of Seller under the Servicing Agreement, except as otherwise provided herein.Subject to the terms of the Servicing Agreement, You shall (x) follow the instructions of Buyer with respect to the Eligible Loans and deliver to"
"IN ORDER TO INDUCE ANY THIRD PARTY TO ACT HEREUNDER, SELLER HEREBY AGREES THAT ANY THIRD PARTY RECEIVING A DULY EXECUTED COPY OR FACSIMILE OF THIS INSTRUMENT MAY ACT HEREUNDER, AND THAT REVOCATION OR TERMINATION HEREOF SHALL BE INEFFECTIVE AS TO SUCH THIRD PARTY UNLESS AND UNTIL ACTUAL NOTICE OR KNOWLEDGE OF SUCH REVOCATION OR TERMINATION SHALL HAVE BEEN RECEIVED BY SUCH THIRD PARTY, AND Seller ON ITS OWN BEHALF AND ON BEHALF OF SELLER'S ASSIGNS, HEREBY AGREES TO INDEMNIFY AND HOLD HARMLESS ANY SUCH THIRD PARTY FROM AND AGAINST ANY AND ALL CLAIMS THAT MAY ARISE AGAINST SUCH THIRD PARTY BY REASON OF SUCH THIRD PARTY HAVING RELIED ON THE PROVISIONS OF THIS INSTRUMENT."
"On March 3, 2017, before me, personally appeared [__________________(NAME/TITLE)], who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument."
"Seller named below hereby certifies to Buyer that, as of the Date and Time of Sale of the above mentioned Loans to Buyer, the security interests in the Loans released by the above named [corporation] comprise all security interests relating to or affecting any and all such Loans.Seller warrants that, as of such time, there are and will be no other security interests affecting any or all of such Loans."
"Affiliate of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term control (including the terms controlled by and under common control with) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise."
"Governmental Authority means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction."
"Material Adverse Effect means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of the Business, (b) the value of the Purchased Assets, or (c) the ability of Seller to consummate the transactions contemplated hereby on a timely basis; provided, however, that Material Adverse Effect shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which the Business operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 4.03 and Section 6.08; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement."
"Transaction Documents means this Agreement, the Escrow Agreement, the Bill of Sale, the Assignment and Assumption Agreement, Intellectual Property Assignments, Assignment and Assumption of Material Contracts, Assignment and Assumption of Leases, the Consulting Agreement(s), the Transition Services Agreement, the Registration Rights Agreement, the Lock-Up Agreement and the other agreements, instruments and documents required to be delivered at the Closing."
"(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller;"
"(j) any Liabilities of the Business relating or arising from unfulfilled customer commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business' customers to Seller on or before the Closing; or (ii) are not validly and effectively assigned to Buyer pursuant to this Agreement on or after the Closing;"
"(i) Within 60 days after the Closing Date, (A) Buyer shall prepare and deliver to Seller a statement setting forth its calculation of Closing Working Capital, which statement shall be substantially in the form of Section 2.06(a)(i) of the Disclosure Schedules (the Closing Working Capital Statement), (B) Seller shall cause to be prepared and delivered to Buyer, at Buyer's expense, audited financial statements of Seller at December 31, 2016 and 2015 and for the years then ended prepared in accordance with GAAP and accompanied by the unqualified report (except as to the going concern of the Seller) of an independent accountant satisfactory to Buyer in its sole discretion (the ""Post-Closing Audited Financial Statements""), and (C) a certificate of the Chief Financial Officer of Buyer that the Closing Working Capital Statement was prepared in accordance with GAAP applied using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the Unaudited Financial Statements for the most recent fiscal year end, subject to the modifications and limitations set forth on Section 2.06(a)(i) of the Disclosure Schedules."
"(ii) Objection. On or prior to the last day of the Review Period, Seller may object to the Closing Working Capital Statement by delivering to Buyer a written statement setting forth Seller's objections in reasonable detail, indicating each disputed item or amount and the basis for Seller's disagreement therewith (the Statement of Objections). If Seller fails to deliver the Statement of Objections before the expiration of the Review Period, the Closing Working Capital Statement and the Post-Closing Working Capital Adjustment, as the case may be, reflected in the Closing Working Capital Statement shall be deemed to have been accepted by Seller. If Seller delivers the Statement of Objections before the expiration of the Review Period, Buyer and Seller shall negotiate in good faith to resolve such objections within 30 days after the delivery of the Statement of Objections (the Resolution Period), and, if the same are so resolved within the Resolution Period, the Post-Closing Adjustment and the Closing Working Capital Statement with such changes as may have been previously agreed in writing by Buyer and Seller, shall be final and binding."
"(iii) Resolution of Disputes. If Seller and Buyer fail to reach an agreement with respect to all of the matters set forth in the Statement of Objections before expiration of the Resolution Period, then any amounts remaining in dispute (Disputed Amounts) and any amounts not so disputed, the Undisputed Amounts) shall be submitted for resolution to an qualified independent third party accounting firm who is mutually agreeable to the Seller and the Buyer (the Independent Accountants) who, acting as experts and not arbitrators, shall resolve the Disputed Amounts only and make any adjustments to the Post- Closing Adjustments Statements, as the case may be, and the Closing Working Capital Statement. The parties hereto agree that all adjustments shall be made without regard to materiality. The Independent Accountants shall only decide the specific items under dispute by the parties and their decision for each Disputed Amount must be within the range of values assigned to each such item in the Closing Working Capital Statement and the Statement of Objections, respectively."
"Section 4.05 Undisclosed Liabilities. Seller has no Liabilities with respect to the Business, except (a) those which are adequately reflected or reserved against in the Balance Sheet as of the Balance Sheet Date, and (b) those which have been incurred in the ordinary course of business consistent with past practice since the Balance Sheet Date or which are not, individually or in the aggregate, material in amount."
"(n) (i) grant of any bonuses, whether monetary or otherwise, or increase in any wages, salary, severance, pension or other compensation or benefits in respect of any employees, officers, directors, independent contractors or consultants of the Business, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment for any employee of the Business or any termination of any employees for which the aggregate costs and expenses exceed $10,000.00, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any employee, officer, director, consultant or independent contractor of the Business;"
"(a) Section 4.07(a) of the Disclosure Schedules lists each of the following Contracts (x) by which any of the Purchased Assets are bound or affected or (y) to which Seller is a party and by which it is bound in connection with the Business or the Purchased Assets (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Leased Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in the Disclosure Schedules and all Contracts relating to Intellectual Property set forth in Section 4.11(b) of the Disclosure Schedules, being Material Contracts):"
"(b) All Permits required for Seller to conduct the Business as currently conducted or for the ownership and use of the Purchased Assets have been obtained by Seller and are valid and in full force and effect. All fees and charges with respect to such Permits as of the date hereof have been paid in full. Section 4.17(b) of the Disclosure Schedules lists all current Permits issued to Seller which are related to the conduct of the Business as currently conducted or the ownership and use of the Purchased Assets, including the names of the Permits and their respective dates of issuance and expiration. No event has occurred that, with or without notice or lapse of time or both, would reasonably be expected to result in the revocation, suspension, lapse or limitation of any Permit set forth in Section 4.17(b) of the Disclosure Schedules."
"(g) Except as set forth in Section 4.19(g) of the Disclosure Schedules, there is no pending or, to Seller's Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has within the three years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under, or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority."
"Section 4.24 Investment. The Seller has read and reviewed the SEC Documents (as defined below) available on the SECs website at www.sec.gov and is making its decision to invest in Buyers shares based only on such information. The Seller: (i) is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with respect to investments in securities including, but not limited to, the Consideration Shares; (ii) is acquiring the Consideration Shares for its own account for investment only and with no present intention of distributing any of such shares or any arrangement or understanding with any other persons regarding the distribution of such shares within the meaning of Section 2(11) of the Securities Act; (iii) will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any such shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) is, and at the time of issuance of the Consideration Shares, will be, an Accredited Investor as that term is defined in the Securities Act. The Seller understands that his acquisition of the Consideration Shares will not be registered under the Securities Act, or registered or qualified under any state securities laws in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Sellers investment intent as expressed herein."
(e) Each employee of the Business who becomes employed by Buyer in connection with the transactions contemplated by this Agreement shall be eligible to receive the salary and benefits maintained for employees of Buyer on substantially similar terms and conditions in the aggregate as are provided to similarly situated employees of Buyer.
"(b) During the Restricted Period, Seller shall not directly or indirectly, hire or solicit any person who is offered employment by Buyer pursuant to Section 6.05(a) or is or was employed in the Business during the Restricted Period, or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 6.07(b) shall prevent Seller from hiring (i) any employee whose employment has been terminated by Buyer or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee."
"(d) Seller acknowledges that the restrictions contained in this Section 6.07 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6.07 should ever be adjudicated to exceed the time, geographic, product or service or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service or other limitations"
"permitted by applicable Law. The covenants contained in this Section 6.07 and each provision hereof is severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction."
"(d) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between Seller with Governmental Authorities in the ordinary course of business, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any"
"(j) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors and stockholders of Seller 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. Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Seller certifying the names and signatures of the officers of Seller authorized to sign this Agreement, the Transaction Documents and the other documents to be delivered hereunder and thereunder (the Seller Closing Certificate)."
"(c) Direct Claims. Any Action by an Indemnified Party on account of a Loss which does not result from a Third Party Claim (a Direct Claim) shall be asserted by the Indemnified Party giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 10 days after the Indemnified Party becomes aware of such Direct Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party is actually and materially prejudiced as a result of such failure. Such notice by the Indemnified Party shall describe the Direct Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have 30 days after its receipt of such notice to respond in writing to such Direct Claim. The Indemnified Party shall allow the Indemnifying Party and its professional advisors to investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim and the Indemnified Party shall assist the Indemnifying Party's investigation by giving such information and assistance (including access to the Indemnified Party's premises and personnel and the right to examine and copy any accounts, documents or records) as the Indemnifying Party or any of its professional advisors may reasonably request. If the Indemnifying Party does not so respond within such 30 day period, the Indemnifying Party shall be deemed to have rejected such claim, in which case the Indemnified Party shall be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement."
"Section 10.05 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Except as provided in Section 6.07(d), upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible."
"Section 10.06 Entire Agreement. This Agreement and the other Transaction Documents constitute the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and therein, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body of this Agreement and those in the other Transaction Documents, the Exhibits and Disclosure Schedules (other than an exception expressly set forth as such in the Disclosure Schedules), the statements in the body of this Agreement will control."
"(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.10(c)."
"2. | Covenants Regarding Below Issues. In full and final resolution of the issues set forth below, the Parties covenant and agree as follows: ---|--- | a. | Capitalized Lease Issue: In full resolution of the Capitalized Lease Issue for purposes of closing the transactions contemplated by the Purchase Agreement, the Parties covenant and agree that: ---|---|--- | i. | Notwithstanding anything to the contrary in Section 2.7(b)(iii)(B) of the Purchase Agreement, the Company and Purchaser shall deliver, or cause to be delivered, an executed joint instruction letter instructing the Deposit Escrow Agent to (A) retain $12,008,073 of the Deposit (the Capital Lease Escrow Amount) until such time as the Company and Purchaser deliver to the Deposit Escrow Agent a certified copy of a final non-appealable judgment or order from the Bankruptcy Courts instructing or awarding the disbursement of such amount, or an executed joint instruction letter instructing the Deposit Escrow Agent to disburse such amount pursuant to and in accordance with such order, and (B) disburse the balance of the Deposit at the Closing to Sellers in immediately available funds. ---|---|--- | ii. | The Parties shall commence proceedings in the Bankruptcy Courts promptly following the Closing Date to determine, on notice to all stakeholders and with request for a hearing, the Capitalized Lease Issue and, if applicable, provide a ruling regarding the amount of the reduction of the purchase price with respect thereto; provided that, in no event shall either Party with respect to the Capitalized Lease Issue request, move or petition the Bankruptcy Courts ---|---|--- 2"
"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."
"(a)The Company and each Subsidiary (as defined below) has been duly organized and is validly existing as a corporation in good standing (or the foreign equivalent thereof) under the laws of each of their respective jurisdictions of organization. The Company and each Subsidiary is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification and has all power and authority necessary to own or hold its properties and to conduct the business in which it is engaged, except where the failure to so qualify, be in good standing or have such power or authority (i) would not have, singularly or in the aggregate, a material adverse effect on the condition (financial or otherwise), results of operations, assets, properties or business of the Company or any Subsidiary, taken as a whole, or (ii) impair in any material respect the ability of the Company to perform its obligations under this Agreement or to consummate any transactions contemplated by the Agreement (any such effect as described in clauses (i) or (ii), a Material Adverse Effect)."
"(i)Except as set forth in the Registration Statement and the Prospectus, there is no legal or governmental action, suit, claim or proceeding pending to which the Company or any Subsidiary is a party or of which any property or assets of the Company or any Subsidiary is the subject which (i) is required to be described in the Registration Statement or the Prospectus or a document incorporated by reference therein and is not described therein, or (ii) singularly or in the aggregate, if determined adversely to the Company or any Subsidiary would reasonably be expected to have a Material Adverse Effect or prevent the consummation of the transactions contemplated hereby; and to the Companys knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others."
"(k)Except as described in the Registration Statement and the Prospectus, the Company and each Subsidiary possess all licenses, certificates, authorizations and permits issued by, and have made all declarations and filings with, the appropriate local, state, federal or foreign regulatory agencies or bodies which are necessary for the ownership of its properties or the conduct of their respective businesses as described in the Registration Statement and the Prospectus (collectively, the Governmental Permits), except where any failures to possess or make the same, singularly or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. The Company and each Subsidiary is in compliance with all such Governmental Permits, and all such Governmental Permits are valid and in full force and effect, except where any non-compliance or the validity or failure to be in full force and effect would not, singularly or in the aggregate, reasonably be expected to have a Material Adverse Effect. To the Companys knowledge, all such Governmental Permits are free and clear of any material restriction or condition that are in addition to, or materially different from those normally applicable to similar licenses, certificates, authorizations and permits. Neither the Company nor any Subsidiary has received notification of any revocation or modification (or proceedings related thereto) of any such Governmental Permit and, to the Companys knowledge, there is no reason to believe that any such Governmental Permit will not be renewed."
"(e)Ownership. The Purchasers signature page sets forth all securities of the Company held or beneficially owned by such Purchaser as of the date hereof, including without limitation, Common Stock and Common Stock Equivalents. Such Purchaser does not hold or beneficially own any other securities of the Company, except as indicated on the signature page hereto."
"(f)Group. Such Purchaser represents that it is not a group within the meaning of Section 13d-5 under the Exchange Act with any holder or beneficial owner of the Companys securities and in calculating and reporting such Purchasers beneficial ownership, such Purchaser is not required under the rules and regulations promulgated under the Exchange Act to include the beneficial ownership of the securities of the Company held by another holder or beneficial owner of the Companys securities."
"(g)Purchase Status. At the time such Purchaser was offered the Shares, it was, and as of the date hereof it is either: (i) an accredited investor as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a qualified institutional buyer as defined in Rule 144A(a) under the Securities Act."
"4.1Integration. 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 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."
"5.4Notices. 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 email or facsimile at the facsimile number or email attachment as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment as set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight 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 set forth on the signature pages attached hereto."
"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."
"5.17Construction. 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."
"(d)all the representations and warranties contained in Section5 of the Note Purchase Agreement, as amended hereby, are true and correct in all material respects with the same force and effect as if made by the Company on and as of the Effective Date (except to the extent such representations and warranties expressly refer to an earlier date, in which case they were true and correct in all material respects as of such earlier date);"
"3.1.This First Amendment shall not become effective until, and shall become effective when, each and every one of the following conditions shall have been satisfied to the satisfaction of the Noteholders (which satisfaction shall be evidenced by the release from escrow of the signature pageof the Noteholders to this First Amendment by Schiff Hardin LLP, special counsel to the Noteholders):"
"(d)counterparts of each of the Collateral Documents required to be delivered on or prior to the date hereof by the Note Purchase Agreement, as amended hereby, as are necessary to grant in favor of the Collateral Agent Liens in and to the Collateral as contemplated by this First Amendment and the Bank Facility, duly executed by the Company and/or the Subsidiary Guarantors party thereto and the Collateral Agent, shall have been delivered to the Noteholders (or their special counsel), together with:"
"(g)the Noteholders (or their special counsel) shall have received an incumbency certificate, executed by a Secretary or Assistant Secretary of the Company and each Subsidiary Guarantor, which shall identify by name and title and bear the signatures of the authorized officers of such Person authorized to sign this First Amendment, the Intercreditor Agreement and each Collateral Document to which it is a party;"
"(d)The Company agrees that it will not, nor will it permit any Subsidiary or Affiliate to, directly or indirectly, pay or cause to be paid any consideration or remuneration, whether by way of supplemental or additional interest, fee or otherwise, to any creditor of the Company or of any Subsidiary Guarantor as consideration for or as an inducement to the entering into by any such creditor of any release or discharge of any Subsidiary Guarantor with respect to any liability of such Subsidiary Guarantor as an obligor or guarantor under or in respect of Debt of the Company, unless such consideration or remuneration is concurrently paid, on the same terms, ratably to the Noteholders of all of the Notes then outstanding."
"Section5.3.Disclosure.The Company, through its agents, Citigroup Global Capital Markets and JP Morgan Securities Inc., delivered to each Purchaser a copy of a Private Placement Memorandum, dated May2008 (the Memorandum), relating to the transactions contemplated hereby.As of the date of the Closing, the Memorandum fairly describes, in all material respects, the general nature of the business and principal properties of the Company and its Subsidiaries.Except as disclosed in Schedule 5.3, as of the date of the Closing, this Agreement, the Memorandum and the documents, certificates or other writings delivered to the Purchasers by or on behalf of the Company in connection with the transactions contemplated hereby and identified in Schedule 5.3, together with the MLPs (i)annual report on Form10-K for the period ended December31, 2007, (ii)quarterly report on Form10-Q for the quarterly period ended March31, 2008 and (iii)all current reports filed on Form8-K since December31, 2007, whether or not incorporated by reference, in whole or in part, in the Memorandum, and the financial statements listed in Schedule 5.5 (this Agreement, the Memorandum and such documents, certificates or other writings and such financial statements delivered (or, in the case of the periodic or current reports filed on Forms 10-K, 10-Q or 8-K, made available on the SECs website) to each Purchaser prior to June6, 2008 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 necessary to make the statements therein not misleading in light of the circumstances under which they were made.As of the date of the Closing, except as disclosed in the Disclosure Documents, since December31, 2007, there has been no change in"
"(d)No Subsidiary is a party to, or otherwise subject to, any legal, regulatory, contractual or other restriction (other than this Agreement, the Bank Facility and the agreements listed on Schedule 5.4 and customary limitations imposed by applicable law or similar statutes) restricting the ability of such Subsidiary to make any distributions of profits to the Company or any of its Subsidiaries that owns outstanding shares of Capital Stock of such Subsidiary."
"Section5.7.Governmental Authorizations, Etc.No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the (a)execution, delivery or performance by the Company of this Agreement or the Notes or (b)the execution, delivery and performance of the Subsidiary Guaranty Agreement by the Original Subsidiary Guarantors."
"(c)To the best knowledge of the Company, there is no Material violation by any Person of any right of the Company or any of its Subsidiaries with respect to any patent, copyright, proprietary software, service mark, trademark, trade name or other right owned or used by the Company or any of its Subsidiaries."
"(c)Neither the Company nor any Subsidiary is a party to, or otherwise subject to any provision contained in, any instrument evidencing Debt of the Company or such Subsidiary, any agreement relating thereto or any other agreement (including, but not limited to, its charter or other organizational document) which limits the amount of, or otherwise imposes restrictions on the incurring of, Debt of the Company or any Subsidiary, except as specifically indicated in Schedule 5.15 or Schedule 5.15A."
"(c)Neither the Company nor any of its Subsidiaries has stored any Hazardous Materials on real properties now or formerly owned, leased or operated by any of them or has disposed of any Hazardous Materials in a manner contrary to any Environmental Laws in each case in any manner that could reasonably be expected to result in a Material Adverse Effect."
"Section5.20.Reserves Relating to Mining Business.To the best knowledge of the Company, the Company and its Subsidiaries maintain adequate reserves for future costs associated with any lung disease claim alleging pneumoconiosis or silicosis or arising out of exposure or alleged exposure to coal dust or the coal mining environment, and such reserves are not less than those required by GAAP."
"Section5.24.Collateral Matters.The provisions of the Collateral Documents create legal and valid Liens on all the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, and, upon the filing of appropriate UCC financing statements and, with respect to any intellectual property, filings in the United States Patent and Trademark Office and the United States Copyright Office, or taking such other action as may be required for perfection under applicable law, such Liens will constitute, to the extent required by the Collateral Documents, perfected and continuing Liens on the Collateral, securing the obligations of the Company and the Subsidiary Guarantors under this Agreement, the Notes and the other Note Documents and the other Secured Obligations, enforceable against the Company and each Subsidiary Guarantor party thereto, and having priority over all other Liens on the Collateral except (a)to the extent any such Liens would have priority over the Liens in favor of the Collateral Agent pursuant to any applicable law, (b)in the case of Liens perfected only by possession (including possession of any certificate of title)to the extent the Collateral Agent has not obtained or does not maintain possession of such Collateral, (c)to the extent that perfection"
"setting forth in each case in comparative form the figures for the corresponding periods in the previous Fiscal Year, all in reasonable detail, prepared in accordance with GAAP applicable to quarterly financial statements generally, and certified by a Senior Financial Officer as fairly presenting, in all material respects, the financial position of the companies being reported on and their results of operations and cash flows, subject to changes resulting from normal, recurring year-end adjustments; provided that delivery within the time period specified above of copies of the MLPs SEC Form10-Q prepared in compliance with the requirements therefor and filed with the SEC shall, so long as the only material operating entity and other assets held by the MLP are, and the only material liabilities of the MLP are liabilities of, the Company (including, for this purpose, the Companys Subsidiaries) be deemed to satisfy the requirements of this Section7.1(a); provided, further, that the Company shall be deemed to have made such delivery of such SEC Form10-Q if it shall have timely made such SEC Form10-Q available on EDGAR and on its home pageon the worldwide web (at the date of this Agreement located at:http//www.ARLP.com or after the date of this Agreement at such other web pagespecified in a notice to the Purchasers) and shall have given each Purchaser prior notice of such availability on EDGAR and on its home pagein connection with each delivery (such availability and notice thereof being referred to as Electronic Delivery);"
"(iii)any event, transaction or condition that could result in the incurrence of any liability by the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, or in the imposition of any Lien on any of the rights, properties or assets of the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or excise tax provisions, if such liability or Lien, taken together with any other such liabilities or Liens then existing, could reasonably be expected to have a Material Adverse Effect;"
"(n)Change of Name,Identity or Structure  promptly, and in any event no less than 30 days (or such lesser notice period agreed to by the Required Holders, it being understood and agreed that any lesser notice period agreed to in writing by the administrative agent under the Bank Facility shall be deemed to apply to this clause (n); provided that any such notice required under this clause (n)shall be delivered concurrently with any similar notice under the Bank Facility) prior to any change (i)in the legal name of the Company or any Subsidiary Guarantor, (ii)in the location of the chief executive office of the Company or any Subsidiary Guarantor, (iii)in the identity or organizational structure of the Company or any Subsidiary Guarantor, (iv)in the Federal Taxpayer Identification Number or organizational identification number, if any, of the Company or any Subsidiary Guarantor, or (v)in the jurisdiction of organization of the Company or any Subsidiary Guarantor (in each case, including by merging with or into any other entity, reorganizing, dissolving, liquidating, reorganizing or organizing in any other jurisdiction), written notice (in the form of a certificate signed by a Responsible Officer) reflecting its intention to do so, clearly describing such change and providing"
"Section7.2.Officers Certificate.Each set of financial statements delivered to a holder of Notes pursuant to Section7.1(a)or Section7.1(b)shall be accompanied by a certificate of a Senior Financial Officer setting forth (which, in the case of Electronic Delivery of such financial statements, shall be by separate concurrent delivery of such certificate to each holder of Notes):"
"(a)Covenant Compliance  the information (including detailed calculations where applicable) required in order to establish whether the Company was in compliance with the covenants set forth in Section10.1, during the quarterly or annual period covered by the statements then being furnished (including with respect to each such Section, where applicable, the calculations of the maximum or minimum amount, ratio or percentage, as the case may be, permissible under the terms of such Sections, and the calculation of the amount, ratio or percentage then in existence and specifying those adjustments in any items abstracted by such financial statements necessary to reflect the adjustments of GAAP provided for in this Agreement); and"
"date, the principal amount of each Note held by such holder to be prepaid (determined in accordance with Section8.5), and the interest to be paid on the prepayment date with respect to such principal amount being prepaid, and shall be accompanied by a certificate of a Senior Financial Officer as to the estimated Make-Whole Amount due in connection with such prepayment (calculated as if the date of such notice were the date of the prepayment), setting forth the details of such computation.At least two Business Days prior to such prepayment, the Company shall deliver to each holder of Notes a certificate of a Senior Financial Officer specifying the calculation of such Make-Whole Amount as of the specified prepayment date."
"Change in Control means the occurrence of any of the following:(a)the managing general partner of the Company shall at any time for any reason cease to be either the sole or managing general partner of the MLP or (b)the AHGP Management Investors (as defined below) shall at any time for any reason cease to (i)possess the right, directly or indirectly, to elect or appoint a majority of the board of directors of the managing general partner of the Company or (ii)control, directly or indirectly, the managing general partner of the Company.Notwithstanding the foregoing, any transaction or series of transactions that result in (I)Alliance Holdings GP, L.P. merging with and into the MLP, with the MLP as the surviving entity, (II)Alliance Holdings GP, L.P. becoming a direct or indirect Wholly Owned Subsidiary of the MLP, (III)the MLP merging with or into Alliance Holdings GP, L.P. or a Subsidiary thereof, with Alliance Holdings GP, L.P. or such Subsidiary as the surviving entity or (IV)any exchange of incentive distribution rights in the MLP and/or exchange of general partner interests in the MLP or the Company for common units of the MLP (any such transaction described in clause (I)\- (IV)above, a Simplification Transaction), shall not constitute a Change in Control hereunder regardless of whether or not, after giving effect to such Simplification Transaction, any of the events described in the first sentence of this definition of Change in Control shall have occurred."
"Section8.5.Allocation of Partial Prepayments.In the case of each partial prepayment of the Notes pursuant to Section8.2, the principal amount of the Notes to be prepaid shall be (a)allocated among each series of Notes in proportion to the aggregate unpaid principal amount outstanding of all such series of Notes and (b)with respect to the Notes of each Series, allocated pro rata among all of the holders of such series of Notes at the time outstanding in proportion, as nearly as practicable, to the respective unpaid principal amounts thereof not theretofore called for prepayment.All partial prepayments made pursuant to Section8.4 shall be applied only to the Notes of the holders who have elected to participate in such prepayment."
"Section8.8.Make-Whole Amount.The term Make-Whole Amount means, with respect to any Note, an amount equal to the excess, if any, of the Discounted Value of the Remaining Scheduled Payments with respect to the Called Principal of such Note over the amount of such Called Principal; provided that the Make- Whole Amount may in no event be less than zero.For the purposes of determining the Make-Whole Amount, the following terms have the following meanings:"
"Section9.3.Maintenance of Properties.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 Section9.3 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 could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect."
"(ii)within 45 days after any acquisition of Material Acquired Real Properties (or, if earlier, the date of delivery of the following pursuant to the Bank Facility), furnish to the holders of the Notes a description of any Material Acquired Real Properties of such Subsidiary, in detail reasonably satisfactory to the Collateral Agent;"
"(v)by March15 of each year, commencing with March15, 2018, with respect to any real property that is associated with an active Mining Facility described on Schedule 5.25 and was acquired during the prior calendar year and was not a Material Acquired Real Property (an Additional Real Property), cause such Subsidiary and each direct and indirect parent of such Subsidiary to take, whatever action (including, without limitation, the recording of mortgages, deeds of trust, assignments, the filing of UCC financing statements, the giving of notices and the endorsement of notices on title documents) as may be necessary or advisable in the reasonable opinion of the Collateral Agent to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it in accordance with the Intercreditor Agreement) valid and subsisting first priority, perfected Liens on such Additional Real Property, in favor of the Collateral Agent for the benefit of the Secured Parties to secure the obligations of the Company and the Subsidiary Guarantors under the Notes and the other Note Documents and the other Secured Obligations in accordance with the terms and conditions of the Collateral Documents, subject in any case to Permitted Liens, Permitted Encumbrances and terms of leases and conveyance instruments, including without limitation delivery of each item set forth in Section9.11(d)with respect to the property to be mortgaged;"
"(b)The time periods set forth in Section9.10(a)may be extended upon the request of the Company, if (i)the Company and the Subsidiary Guarantors are diligently pursuing same, in the sole discretion of the Required Holders and (ii)the administrative agent under the Bank Facility has agreed to such extension.Notwithstanding the foregoing, if the administrative agent under the Bank Facility has agreed in writing to an extension of the time period for any requirement under the Bank Facility that is similar to a requirement in Section9.10(a), then such extension shall, upon notice to the holders of the Notes, automatically apply to such requirement in Section9.10(a), without the approval or consent of the Required Holders; provided that such extension shall in no event exceed 60 days after the original period of time specified in Section9.10(a)for such requirement and provided, further, that such extension shall be deemed to end on the date of compliance with the corresponding requirement under the Bank Facility.Any documentation delivered pursuant to Section9.10(a)shall constitute a Note Document hereunder and any such document creating or purporting to create a Lien in favor of the Collateral Agent for the benefit of the Secured Parties shall constitute a Collateral Document hereunder."
"specified time period, after using commercially reasonable efforts to do so, the Company shall have no further obligation to execute and deliver to the Collateral Agent the same and the covenant set forth in this Section9.11(c)with respect to such landlord waivers and collateral access agreements shall be deemed to be satisfied by the Company.The Company shall promptly, upon request by the Required Holders, provide the holders of the Notes with a report in reasonable detail summarizing the commercially reasonable efforts undertaken to obtain the landlord waivers and collateral access agreements referenced in this Section9.11(c);"
"(i)evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Collateral Agent may deem necessary or desirable in order to create a valid first and subsisting Lien, subject to Permitted Liens and Permitted Encumbrances, on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and other fees in connection therewith have been paid;"
"(vii)a Life-of-Loan Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each surface parcel of Mortgaged Property covered by such Mortgage, and, in the event any portion of a Mortgaged Property includes a structure with at least two walls and a roof or a building in the course of construction (each, a Building) and, as shown in the related flood hazard determination, such Building is located in a special flood hazard area (a Flood Hazard Property), then (1)a notice about special flood hazard area status and flood disaster assistance duly"
"executed by the Company, and (2)evidence of flood insurance on such terms and in such amounts as required by the Flood Disaster Protection Act (as amended) reasonably satisfactory to the Collateral Agent, or a certificate from the Company that such Mortgaged Property does not include a Building or Buildings, which certificate shall be in a form reasonably satisfactory to the Collateral Agent; the Company shall provide not less than 45 days prior written notice to the holders of the Notes and the Collateral Agent of any proposed execution and delivery of a Mortgage;"
"(ix)favorable opinions of local counsel for the Company and the Subsidiary Guarantors, (1)in states in which the Mortgaged Properties are located, with respect to the enforceability and perfection of all Mortgages covering the Mortgaged Properties and any related fixture and filings covering As-Extracted Collateral (as defined in the Security Agreement), in form and substance reasonably satisfactory to the Required Holders, and (2)in states in which the Company and/or the applicable Subsidiary Guarantor that is party to the Mortgages is organized or formed, that the relevant mortgagor is validly existing and in good standing, corporate power, due authorization, execution and delivery, no conflicts and no consents of the Company or such Subsidiary Guarantor in the granting of the Mortgages, in form and substance reasonably satisfactory to the Required Holders, and such other opinions of counsel as the Required Holders shall reasonably request in form reasonably acceptable to the Required Holders relating to the delivery of such Mortgage;"
"(x)evidence that all other action that the Collateral Agent may deem necessary or desirable in order to create valid first and subsisting Liens, excluding Permitted Liens and Permitted Encumbrances, on the property described in the Mortgages has been taken that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the Liens created thereby; and"
"(a)If, on any date, the Bank Facility contains one or more Additional Covenants or Additional Defaults (including, for the avoidance of doubt, as a result any amendment to the Bank Facility, whether or not in effect on the date of the First Amendment, causing it to contain one or more Additional Covenants or Additional Defaults), then, concurrently therewith, (i)the Company will notify the holders of the Notes thereof, and (ii)whether or not the Company provides such notice, the terms of this Agreement shall, without any further action on the part of the Company or any holder of the Notes, be deemed to be amended automatically to include each Additional Covenant and each Additional Default in this Agreement.The Company further covenants to promptly execute and deliver at its expense (including, without limitation, the fees and expenses of counsel for the holders of the Notes) an amendment to this Agreement in form and substance satisfactory to the Required Holders evidencing the amendment of this Agreement"
"(ii)other unsecured Debt incurred in the ordinary course of business aggregating not more than $50,000,000 at any time outstanding other than Guaranties or other contingent obligations of the Company with respect to any Debt or other obligation of any Subsidiary; provided that (1)the Company shall be in pro forma compliance with the covenants contained in Section10.1, calculated based on the financial statements most recently delivered to the holders of the Notes pursuant to Section7.1(a)or (b)and as though such Debt had been incurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the chief financial officer (or person"
"(iii)other unsecured Debt incurred in the ordinary course of business (including, for the avoidance of doubt, any long-term Debt incurred in connection with a note offering) other than Guaranties or other contingent obligations of the Company with respect to any Debt or other obligation of any Subsidiary; provided that (1)the Company shall be in pro forma compliance with the covenants contained in Section10.1, calculated based on the financial statements most recently delivered to the holders of the Notes pursuant to Section7.1(a)or (b)and as though such Debt had been incurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the chief financial officer (or person performing similar functions) of the Company delivered to the holders of the Notes demonstrating such compliance, (2)such unsecured Debt matures, and does not begin to amortize until, more than six months after the maturity date of the SeriesB Notes and (3)the covenants and other material terms of such unsecured Debt are no more restrictive than those set forth in this Agreement and the other Note Documents; and"
"(b)in the case of any Subsidiary of the Company: (i)Debt owed to the Company or to a Wholly Owned Subsidiary of the Company; provided that (A)any such Debt owed by a Subsidiary Guarantor to a Wholly Owned Subsidiary that is not a Subsidiary Guarantor shall be expressly subordinated in right of payment to the obligations of such Subsidiary Guarantor under the Note Documents and (B)except in the case of Debt arising pursuant to a transaction permitted by clause (c)(viii)below, any such Debt owed to the Company or to a Subsidiary Guarantor shall be evidenced by, and subject to the provisions of, an intercompany note that shall be pledged to the Collateral Agent in accordance with the terms of the Security Agreement, and (ii)Debt in the form of a Guaranty of Debt otherwise permitted under this Section10.3; and"
"Section10.5.Sales, Etc. of Assets.The Company will not sell, lease, transfer or otherwise dispose of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose of, any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets other than Inventory to be sold in the ordinary course of its business, except:"
"(f)sales of other assets (including the Capital Stock of any Subsidiary of the Company) with a fair value in an amount not to exceed $50,000,000 individually or $125,000,000 in the aggregate over the term of the SeriesB Notes; provided, however, that (i)the purchase price paid to the Company or such Subsidiary for such asset shall be no less than the fair market value of such asset at the time of such sale and such sale shall be in the best interest of the Company or such Subsidiary, as determined in good faith by the board of directors (or other person performing such functions) of the Company or such Subsidiary, as the case may be, and (ii)immediately after giving effect to such sales of assets, no Default or Event of Default shall exist; and"
"Section10.9.Lease Obligations.The Company will not create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any obligations as lessee (excluding for this purpose obligations as lessee under Capital Leases) (a)for the rental or hire of real or personal property in connection with any sale and leaseback transaction (except to the extent and not exceeding the amounts permitted by Section10.5(c)), or (b)for the rental or hire of other real or personal property of any kind under leases or agreements to lease having an original term of one year or more that would cause the direct and contingent liabilities of the Company and its Subsidiaries, on a Consolidated basis, in respect of all such obligations to exceed $25,000,000 payable in any period of 12 consecutive months."
"Section10.15.Speculative Transactions.The Company will not, and will not permit any Subsidiary to, enter into any foreign currency exchange contracts, interest rate swap arrangements or other derivative contracts or transactions, other than, subject to Section10.3(c)(v), such contracts, arrangements or transactions entered into in the ordinary course of business for the purpose of hedging (a)the interest rate exposure of the Company or any of its Subsidiaries, (b)the purchase requirements of the Company or any of its Subsidiaries with respect to raw materials and inventory and (c)the fluctuations in the prices of commodities affecting the Company or any of its Subsidiaries."
"(a)limits the ability of any of its Subsidiaries (other than any Receivables Financing Subsidiary or the Insurance Subsidiary) to declare or pay dividends or other distributions in respect of its Capital Stock or repay or prepay any Debt owed to, make loans or advances to, or otherwise transfer assets to or invest in, the Company or any Subsidiary (other than any Receivables Financing Subsidiary or Insurance Subsidiary) of the Company (whether through a covenant restricting dividends, loans, asset transfers or investments, a financial covenant or otherwise), except the Note Documents, the Bank Facility and the other Loan Documents (as defined in the Bank Facility), in each case as in effect on the date of the First Amendment and any other agreement or instrument governing Debt permitted to be incurred in accordance with Section10.3; provided that the restrictions related to the payment of dividends and distributions, repayment of Debt, making of loans or other transfer of assets by Subsidiaries included in such other agreement or instrument are no more restrictive than the comparable terms of the Note Documents contained in Sections 10.5 (relating to transfer of assets by Subsidiaries), 10.7 (relating to making of loans by Subsidiaries), 10.8 (relating to payment of dividends and distributions by Subsidiaries) and 10.12 (relating to repayment of Debt by Subsidiaries); and provided, further, that, in the case of any agreement (including any receivables financing agreement) to which a Receivables Financing Subsidiary may be a party or by which it may be bound in connection with a receivables financing transaction permitted by Section10.3(c)(viii), such restrictions related to the payment of dividends and distributions, repayment of Debt, making of loans or other transfers of assets included in such agreement may be on such terms and conditions as shall be customary for such receivables financing transaction; or"
"(g)the Company, the General Partner (unless timely replaced by a new General Partner to the extent permitted by the Companys Partnership Agreement) or any Subsidiary (i)is generally not paying, or admits in writing its inability to pay, its debts as they become due, (ii)files, or consents by answer or otherwise to the filing against it or, a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy, insolvency, reorganization, moratorium or other similar law of any jurisdiction, (iii)makes an assignment for the benefit of its creditors, (iv)consents to the appointment of a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, (v)is adjudicated as insolvent or to be liquidated, or (vi)takes legal action for the purpose of any of the foregoing; or"
"Section14.1.Place of Payment.Subject to Section14.2, payments of principal, Make-Whole Amount, if any, and interest becoming due and payable on the Notes shall be made in New York, New York at the principal office of Citibank, 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."
"All representations and warranties contained herein shall survive the execution and delivery of this Agreement, the Notes and the other Note Documents, the purchase or transfer by any Purchaser of any Note or portion thereof or interest therein and the payment of any Note, and may be relied upon by any subsequent holder of a Note, regardless of any investigation made at"
"Section17.1.Requirements. This Agreement, the Notes and the Subsidiary Guaranty Agreement or the Intercreditor Agreement may be amended, restated, modified or supplemented, and the observance of any term hereof or of the Notes, the Subsidiary Guaranty Agreement or the Intercreditor Agreement may be waived (either retroactively or prospectively), with (and only with) the written consent of the Company and the Required Holders, except that (a)no amendment, restatement, modification, supplement or waiver of any of the provisions of Section1, 2, 3, 4, 5, 6 or 21 hereof, 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, restatement, modification, supplement 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 Section12 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, 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, restatement, modification, supplement or waiver, or (iii)amend, restate, modify or supplement any of Section8, 11(a), 11(b), 12, 17 or 20.Notwithstanding anything contained in this Section17.1 to the contrary, (1)the Intercreditor Agreement may be amended, restated, modified or supplemented in accordance with the terms thereof and (2)each Collateral Document (whether delivered under Section9.10, Section9.11 or any other provision of this Agreement or the other Note Documents) may be amended as provided therein."
"(iii)if to the Company, to the Company at its address set forth at the beginning hereof to the attention of its Chief Financial Officer, or at such other address as the Company shall have specified to the holder of each Note in writing, with a copy to the Company at its address as set forth in the beginning hereof to the attention of its General Counsel, or at such other address as the Company shall have specified to the holder of each Note in writing."
"Section22.7.Governing Law. This Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York, excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State."
"(b)The Company agrees, to the fullest extent permitted by applicable law, that a final judgment in any suit, action or proceeding of the nature referred to in Section22.8(a)brought in any such court shall be conclusive and binding upon it subject to rights of appeal, as the case may be, and may be enforced in the courts of the United States of America or the State of New York (or any other courts to the jurisdiction of which it or any of its assets is or may be subject) by a suit upon such judgment."
"Additional Covenant shall mean any affirmative or negative covenant or similar restriction applicable to the Company or any Subsidiary (regardless of whether such provision is labeled or otherwise characterized as a covenant), including any defined terms as used therein, the subject matter of which either (i)is similar to that of any covenant in Section9 or 10 of this Agreement, 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 or more beneficial to the lenders under the Bank Facility than as set forth herein (and such covenant or similar restriction shall be deemed an Additional Covenant only to the extent that it is more restrictive or more beneficial) or (ii)is different from the subject matter of any covenant in Section9 or 10 of this Agreement, or the related definitions in this Schedule B."
"Asset Acquisition means (a)an Investment by the Company or any Subsidiary in any other Person pursuant to which such Person shall become a Subsidiary or shall be merged with or into the Company or any Subsidiary, (b)the acquisition by the Company or any Subsidiary of the assets of any Person (other than a Subsidiary) which constitute all or substantially all of the assets of such Person or (c)the acquisition by the Company or any Subsidiary of any division or line of business of any Person (other than a Subsidiary)."
"Bank Facility means that certain Fourth Amended and Restated Credit Agreement dated as of January27, 2017 among the Company, the Initial Lenders,Initial Issuing Banks and Swing Line Bank, as named therein, the various financial institutions party from time to time thereto and JPMorgan Chase Bank, N.A., as administrative agent, as the same may from time to time be supplemented, amended, restated, renewed, extended or replaced."
"Consolidated Cash Flow means, as of any date of determination for any applicable period, the excess, if any, of (a)the sum of, without duplication, the amounts for such period, taken as a single accounting period, of (i)Consolidated Net Income for such period, plus (ii)to the extent deducted in the determination of Consolidated Net Income for such period, without duplication, (A)Consolidated Non-Cash Charges, (B)Consolidated Interest Expense and (C)Consolidated Income Tax Expense, over (b)the sum of, without duplication, the amounts for such period, taken as a single accounting period, of (i)any non-cash items increasing Consolidated Net Income for such period (x)to the extent that such items constitute reversals of Consolidated Non- Cash Charges for a previous period and which were included in the computation of Consolidated Cash Flow for such previous period pursuant to the provisions of the preceding clause (a)or (y)for unrealized gains under derivative instruments, and (ii)any cash charges for such period to the extent that such charges constituted non-cash items for a previous period and to the extent such charges are not otherwise included in the determination of Consolidated Net Income; provided that Consolidated Cash Flow shall be calculated, without duplication, after giving effect on a pro forma basis for such period, in all respects in accordance with GAAP, to any Transfer or Asset Acquisitions (including, without limitation any Asset Acquisition by the Company or any Subsidiary giving rise to the need to determine Consolidated Cash Flow as a result of the Company or one of its Subsidiaries (including any Person that becomes a Subsidiary as result of any such Asset Acquisition) incurring, assuming or otherwise becoming liable for any Debt) occurring during the period commencing on the first day of such period to and including the date of the transaction, as if such Transfer or Asset Acquisition occurred on the first day of such period."
"Consolidated Interest Expense means, as of any date of determination for any applicable period, the sum (without duplication) of the following (in each case, eliminating all offsetting debits and credits between the Company and its Subsidiaries and all other items required to be eliminated in the course of the preparation of consolidated financial statements of the Company and its Subsidiaries in accordance with GAAP):(a)all interest in respect of Debt of the Company and its Subsidiaries whether paid or accrued (including non-cash interest payments and imputed interest on Capital Lease Obligations) deducted in determining Consolidated Net Income for such period, and (b)all debt discount (but not expense) amortized or required to be amortized in the determination of Consolidated Net Income for such period."
"Constitutive Documents means, with respect to any Person, the certificate of incorporation or registration or formation (including, if applicable, certificate of change of name), articles of incorporation or association, memorandum of association, charter, bylaws, partnership agreement, trust agreement, joint venture agreement, limited liability company operating or members agreement, joint venture agreement or one or more similar agreements, instruments or documents constituting the organization or formation of such Person."
"(e)all its liabilities in respect of letters of credit or instruments serving a similar function or surety bonds issued or accepted for its account by banks or other financial institutions (whether or not representing obligations for borrowed money), other than any such liabilities that are incurred in the ordinary course of business of such Person and"
"Environmental Laws means any and all federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including but not limited to those related to Hazardous Materials."
"Hazardous Materials means any and all pollutants, toxic or hazardous wastes or any other substances, including all substances listed in or regulated in any Environmental Law that might pose a hazard to health and safety, the removal of which may be required or the generation, manufacture, refining, production, processing, treatment, storage, handling, transportation, transfer, use, disposal, release, discharge, spillage, seepage, or filtration of which is or shall be restricted, regulated, prohibited or penalized by any applicable law including, but not limited to, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, petroleum, petroleum products, lead based paint, radon gas or similar restricted, prohibited or penalized substances."
"Intercreditor Agreement means the Second Amended and Restated Intercreditor Agreement dated as of January27, 2017 among the holders from time to time of the Notes, JPMorgan Chase Bank, N.A., as administrative agent under the Bank Facility, and the Collateral Agent, as the same may be amended, modified or restated from time to time in accordance with the terms thereof."
"Interest Coverage Ratio means, at any date of determination, the ratio of (a)Consolidated Cash Flow as at the end of the most recently ended fiscal quarter of the Company for which financial statements are required to be delivered to the holders of the Notes pursuant to Section7.1(a)or (b), as the case may be to (b)Consolidated Interest Expense for the period of four fiscal quarters ending on the last day of such fiscal quarter."
"The Company and the Noteholders are entering into the First Amendment dated as of the date hereof to the Note Agreement, and it is a condition precedent to the effectiveness of the First Amendment that each Guarantor shall have executed and delivered this Guaranty, which amends and restates the Existing Guaranty Agreement."
"effect in any jurisdiction affecting any of such terms or the rights of any Noteholder with respect thereto.To the extent permitted by law, the Guaranteed Obligations of each Guarantor under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other obligations of any other Note Party under or in respect of the Note Documents, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Company or any other Note Party or whether the Company or any other Note Party is joined in any such action or actions.To the extent permitted by law, the liability of each Guarantor under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:"
"(a)To the extent permitted by law, each Guarantor hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that any Noteholder protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against any Note Party or any other Person or any collateral."
"(c)To the extent permitted by law, each Guarantor hereby unconditionally and irrevocably waives (i)any defense arising by reason of any claim or defense based upon an election of remedies by any Noteholder that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of such Guarantor or other rights of such Guarantor to proceed against any of the other Note 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 Guaranteed Obligations of such Guarantor hereunder."
"(d)To the extent permitted by law, each Guarantor hereby unconditionally and irrevocably waives any duty on the part of any Noteholder to disclose to such Guarantor any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Note Party or any of its Subsidiaries now or hereafter known by such Noteholder."
"Upon (a)the occurrence and during the continuance of any Event of Default and (b)the acceleration of the maturity of the Notes pursuant to the provisions of the Note Agreement or the Intercreditor Agreement each Noteholder and 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) at any time held and other indebtedness at any time owing by such Noteholder or such Affiliate to or for the credit or the account of any Guarantor against any and all of the obligations of such Guarantor now or hereafter existing under the Note Documents, irrespective of whether such Noteholder shall have made any demand under this Guaranty or any other Note Document and although such obligations may be unmatured.Each Noteholder agrees promptly to notify such Guarantor after any such set-off and application; provided, however, that the failure to give such notice shall not affect the validity of such set-off and application.The rights of each Noteholder and its Affiliates under this Sectionare in addition to other rights and remedies (including, without limitation, other rights of set-off) that such Noteholder and its Affiliates may have."
"(d)EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE NOTE DOCUMENTS, THE USE OF THE PROCEEDS OF THE NOTES OR THE ACTIONS OF ANY NOTEHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF."
"(a)The undersigned hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or by acceleration, demand or otherwise, of all obligations, including the principal of, accrued interest on, and Make- Whole Amount, if any, with respect to, the Notes, of each other Note Party now or hereafter existing under or in respect of the Note Documents (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, premium, fees, indemnities, contract causes of action, costs, expenses or otherwise (such obligations being the Guaranteed Obligations), and agrees to pay any and all expenses (including, without limitation, fees and expenses of counsel) incurred by any Noteholder in enforcing any rights under this Guaranty Supplement, the Subsidiary Guaranty or any other Note Document.Without limiting the generality of the foregoing, the undersigneds liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any other Note Party to any Noteholder under or in respect of the Note 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 Note Party."
"(c)The undersigned hereby unconditionally and irrevocably agrees that in the event any payment shall be required to be made to any Noteholder under this Guaranty Supplement, the Subsidiary Guaranty or any other guaranty, the undersigned will contribute, to the maximum extent permitted by applicable law, such amounts to each other Guarantor and each other guarantor so as to maximize the aggregate amount paid to the Noteholders under or in respect of the Note Documents."
"(c)The undersigned irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, 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 in any New York State or federal court.The undersigned hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action or proceeding in any such court."
"4.Indebtedness under the Bank Facility, in an aggregate principal amount of approximately $53.9 million, plus accrued fees and expenses (which amount includes, for the avoidance of doubt, letters of credit issued pursuant to and outstanding under the Bank Facility in an aggregate available amount of approximately $27.6 million as shown on Annex I to Schedule 5.15).The amount of indebtedness under the Bank Facility includes $4.8 million of swingline loans as of JuneI 7, 2008 which can vary on a daily basis but in no event can exceed $15 million pursuant to the terms under the Bank Facility."
"(P4-262) Coal Lease Agreement effective January8, 2010, by and between Thomas B. Badgett,Jr. and Sue Badgett and Alliance Resource Properties, LLC, a Memorandum of Coal Lease Agreement of record in Lease Book 191, at Page390, in the Hopkins County Clerks Office, as amended by Amendment to Coal Lease Agreement effective April1, 2010, a Memorandum of Amendment to Coal Lease Agreement of record in Lease Book 192, at Page 116, in the Hopkins County Clerks Office (Hanson portal, bath house, man shaft, related facilities)."
"Agreement between Victor Crowes Heirs and Warrior Coal Mining Co. dated 3/23/96regarding Lease, Victor Crowe, et ux, to Spencer Chemical Company, 8/5/63, 40 acres less 3acres, Lease Book 60, page325; assigned to Cardinal Trust by Assignment of Lease, Chevron,U.S.A.,Inc. to Cardinal Trust, 9/23/91, Lease Book 152, page508; and, Cardinal Trust toCardinal Trust, LLC, Assignment of Lease 10/1197, Lease Book 168, page22; assigned to SGPLand, LLC by Assignment of Leases dated January26, 2001, Short Formof record in LeaseBook 173, Page482, Hopkins County; assigned to Alliance Resource Properties by Assignmentof Leases and Agreements dated January1, 2008 (refuse disposal area);"
"(DO-P3-1-SL) Surface Lease dated August29, 2001 by and between Patricia BrooksTaylor, Richard K. Brooks and Marilyne Brooks and Webster County Coal, LLC, aMemorandum of Surface Lease of record in Lease Book 174, Page462 in the Hopkins CountyClerks Office and Lease Book 174, Page467 in the Hopkins County Clerks Office (Dotiki IVbath house, office, buildings, supply yard);"
"Agreement between Victor Crowes Heirs and Warrior Coal Mining Co. dated 3/23/96 regarding Lease, Victor Crowe, et ux, to Spencer Chemical Company, 8/5/63, 40 acres less 3 acres, Lease Book 60, page325; assigned to Cardinal Trust by Assignment of Lease, Chevron, U.S.A.,Inc. to Cardinal Trust, 9/23/91, Lease Book 152, page508; and, Cardinal Trust to Cardinal Trust, LLC, Assignment of Lease 10/1197, Lease Book 168, page22; assigned to SGP Land, LLC by Assignment of Leases dated January26, 2001, Short Formof record in Lease"
"*Based on lien searches conducted in (i)the State of Delaware for the companies organized Delaware law, (ii)the Commonwealth of Kentucky for the companies organized under Kentucky law and/or operating in Kentucky, (iii)the State of Oklahoma for the companies operating in Oklahoma, (iv)the State of Pennsylvania for the companies operating in Pennsylvania, (v)the State of Maryland for the companies operating in Maryland, (vi)the State of West Virginia for the companies operating in West Virginia, (vii)the State of Illinois for the companies operating in Illinois and (viii)the State of Indiana for the companies operating in Indiana."
"B. The Company will sell and issue the Convertible Notes (as defined below) to each Buyer pursuant to a currently effective shelf registration statement on Form S-3 (File No. 333-210673) (the Registration Statement), which Registration Statement has been declared effective in accordance with the Securities Act of 1933, as amended (the 1933 Act), by the United States Securities and Exchange Commission (the SEC)."
"(h) Transfer or Sale. Each Buyer understands that (i) the Securities may not be offered for sale, sold, assigned or transferred unless (A) registered pursuant to the 1933 Act or (B) an exemption exists permitting such Securities to be sold, assigned or transferred without such registration; (ii) any sale of the Securities made in reliance on Rule 144 under the 1933 Act may be made only in accordance with the terms of Rule 144 under the 1933 Act and further, if Rule 144 under the 1933 Act is not applicable, any resale of the 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."
"Except as set forth in the Disclosure Schedules, which Disclosure Schedules shall be deemed a part hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the corresponding section of the Disclosure Schedules (but in no event shall qualify any indemnity obligation of the Company hereunder), the Company (which for purposes of this Section 3 means the Company and all of its Subsidiaries) represents and warrants to each Purchaser that on each Closing Date:"
"(c) Authorization: No Conflict. The execution, delivery and performance of the Documents and the transactions contemplated thereby by the Company, including, but not limited to, the sale and issuance of the Convertible Notes for the Purchase Price, the reservation for issuance of the shares of Common Stock required to be reserved pursuant to the terms of the Convertible Notes and of the sale and issuance the Conversion Shares into which the Convertible Notes are convertible (i) are within the Companys corporate powers, (ii) have been duly authorized by all necessary action by or on behalf of the Company (and/or its stockholders to the extent required by law), (iii) the Company has received all necessary and/or required governmental, regulatory and other approvals and consents (if any shall be required), (iv) do not and shall not contravene or conflict with any provision of, or require any consents under (1) any law, rule, regulation or ordinance, (2) the Companys organizational documents; and/or (3) any agreement binding upon the Company or any of the Companys properties except as would not reasonably be expected to have a Material Adverse Effect, and (v) do not result in, or require, the creation or imposition of any Lien and/or encumbrance on any of the Companys properties or revenues pursuant to any law, rule, regulation or ordinance or otherwise."
"(k) Federal Laws and Regulations. The Company is not (i) an investment company or a company controlled, whether directly or indirectly, by an investment company, within the meaning of the Investment Company Act of 1940, as amended; or (ii) engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System)."
"(n) Officers and Ownership. As of the date hereof, the Persons set forth in the SEC Reports (i) hold the respective office or offices, position or positions (including director positions if a director), in the Company and (ii) except as may be updated by a subsequent filing of Form 4 or 5, own the percentage of each and every class of issued and outstanding capital stock, other ownership interests and/or securities of the Company and the voting power over said capital stock, other ownership interests and/or securities of the Company."
"(ee) Arbitration, Absence of Litigation. Other than as disclosed in the SEC Reports, there is no action, suit, proceeding, inquiry or investigation before or by any court, public board, government agency, self-regulatory organization or body pending or, to the knowledge of the Company, threatened against or affecting the Company, the Common Stock or any of the Companys officers or directors or 5% or greater stockholders in their capacities as such."
"(hh) No Integrated Offering. Assuming the accuracy of the representations and warranties set forth in Section 2, neither the Company, nor any of its affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause the issuance and/or sale of the Securities to be integrated with prior offerings of securities by the Company for purposes of (i) the Securities Act that would require the registration of any such Securities and/or any other securities of the Company under the Securities Act, or (ii) any stockholder-approval provisions of any Trading Market on which any of the securities of the Company are listed, eligible for quotation and/or designated."
"(jj) Regulation M Compliance. 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 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) sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of the Company."
"(e) Blue Sky. The Company, on or before the Closing Date, shall take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to, qualify the Securities for sale to the Buyers at the Closing pursuant to this Agreement under applicable securities or Blue Sky laws of the states of the United States (or to obtain an exemption from such qualification), and shall provide evidence of any such action so taken to the Buyers on or prior to the Closing Date. Without limiting any other obligation of the Company under this Agreement, the Company shall timely make all filings and reports relating to the offer and sale of the Securities required under all applicable securities laws (including, without limitation, all applicable federal securities laws and all applicable Blue Sky laws), and the Company shall comply with all applicable federal, state and local laws, statutes, rules, regulations and the like relating to the offering and sale of the Securities to the Buyers."
"(l) Disclosure of Transactions and Other Material Information. The Company shall, within the time required under the 1934 Act, file a Current Report on Form 8-K describing all the material terms of the transactions contemplated by the Transaction Documents in the form required by the 1934 Act and attaching all the material Transaction Documents (including, without limitation, this Agreement (including all attachments, the 8-K Filing). From and after the filing of the 8-K Filing, the Company shall have disclosed all material, non- public information (if any) delivered to any of the Buyers by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon the filing of the 8-K Filing, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement with respect to the transactions contemplated under the Transaction Documents, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates, employees or agents, on the one hand, and any of the Buyers or any of their affiliates, on the other hand, shall terminate. In the event of a breach of any of the foregoing covenants by the Company, any of its Subsidiaries, or any of its or their respective officers, directors, employees and agents (as determined in the reasonable good faith judgment of such Buyer), in addition to any other remedy provided herein or in the Transaction Documents, such Buyer shall have the right to make a public disclosure, in the form of a press release, public advertisement or otherwise, of such material, non-public information, as applicable, without the prior approval by the Company, any of its Subsidiaries, or any of its or their respective officers, directors, employees or agents; provided the Buyer shall have first provided written notice to the Company that it believes it has received information that constitutes material, non-public information, the Company shall have at least 48 hours to publicly disclose such material, non-public information prior to any such disclosure by the Buyer or demonstrate to the Buyer in writing why such information does not constitute material, non-public information, and (assuming the Buyer and Buyers counsel disagree with the Companys determination) the Company shall have failed to publicly disclose such material, non-public information within such time period. No Buyer shall have any liability to the Company, any of its Subsidiaries, or any of its or their respective officers, directors, employees, stockholders or agents, for any such disclosure. To the extent that the Company delivers any material, non-public information to a Buyer without such Buyers consent, the Company hereby covenants and agrees that such Buyer shall not have any duty of confidentiality with respect to, or a duty not to trade on the basis of, such material, non-public information. Subject to the foregoing, neither the Company, its Subsidiaries nor any Buyer shall issue any press releases or any other public statements with respect to the transactions contemplated hereby; provided, however, the Company shall be entitled, without the prior approval of any Buyer, to make any press release or other public disclosure with respect to such transactions (i) in substantial conformity with the 8-K Filing and contemporaneously therewith and (ii) as is required by applicable law and regulations (provided that in the case of clause (i) each Buyer shall be consulted by the Company in connection with any such press release or other public disclosure prior to its release). Notwithstanding anything contained in this Agreement to the contrary and without implication that the contrary would otherwise be true, the Company expressly acknowledges and agrees that no Buyer has had, and no Buyer shall have (unless expressly agreed to by a particular Buyer after the date hereof in a written definitive and binding agreement executed by the Company and such particular Buyer (it being understood and agreed that no Buyer may bind any other Buyer with respect thereto)), any duty of confidentiality with respect to, or a duty not to trade on the basis of, any material, non-public information regarding the Company or any of its Subsidiaries."
"(b) Counterparts. This Agreement may be executed in two or more identical counterparts, all of which 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. In the event that any signature is delivered by facsimile transmission or by an e-mail which contains a portable document format (.pdf) file of an executed signature page, such signature page 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 signature page were an original thereof."
"(c) Headings; Gender. The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this Agreement. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine, feminine, neuter, singular and plural forms thereof. The terms including, includes, include and words of like import shall be construed broadly as if followed by the words without limitation. The terms herein, hereunder, hereof and words of like import refer to this entire Agreement instead of just the provision in which they are found."
"(n) Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) the Transaction Documents, whenever any Buyer exercises a right, election, demand or option under a Transaction Document and the Company does not timely perform its related obligations within the periods therein provided, then such Buyer may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part without prejudice to its future actions and rights."
"(q) Independent Nature of Buyers Obligations and Rights. The obligations of each Buyer under the Transaction Documents are several and not joint with the obligations of any other Buyer, and no Buyer shall be responsible in any way for the performance of the obligations of any other Buyer under any Transaction Document. Nothing contained herein or in any other Transaction Document, and no action taken by any Buyer pursuant hereto or thereto, shall be deemed to constitute the Buyers as, and the Company acknowledges that the Buyers do not so constitute, a partnership, an association, a joint venture or any other kind of group or entity, or create a presumption that the Buyers are in any way acting in concert or as a group or entity with respect to such obligations or the transactions contemplated by the Transaction Documents, and the Company shall not assert any such claim with respect to such obligations or the transactions contemplated by the Transaction Documents. The decision of each Buyer to purchase Securities pursuant to the Transaction Documents has been made by such Buyer independently of any other Buyer. Each Buyer acknowledges that no other Buyer has acted as agent for such Buyer in connection with such Buyer making its investment hereunder and that no other Buyer will be acting as agent of such Buyer in connection with monitoring such Buyers investment in the Securities or enforcing its rights under the Transaction Documents. The Company and each Buyer confirms that each Buyer has independently participated with the Company in the negotiation of the transaction contemplated hereby with the advice of its own counsel and advisors. Each Buyer shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of this Agreement or out of any other Transaction Documents, and it shall not be necessary for any other Buyer to be joined as an additional party in any proceeding for such purpose. The use of a single agreement to effectuate the purchase and sale of the Securities contemplated hereby was solely in the control of the Company, not the action or decision of any Buyer, and was done solely for the convenience of the Company and not because it was required or requested to do so by any Buyer. It is expressly understood and agreed that each provision contained in this Agreement and in each other Transaction Document is between the Company and a Buyer, solely, and not between the Company and the Buyers collectively and not between and among the Buyers."
"Breach A Breach of a representation, warranty, covenant, obli-gation, or other provision of this Agreement or any instrument deliv-ered pursuant to this Agreement shall be deemed to have occurred if there is or has been (a) any inaccuracy in or breach of, or any failure to perform or comply with, such representation, warranty, covenant, obligation, or other provision, or (b) any claim (by any Person) or other occurrence or circumstance that is or was inconsistent with such representation, warranty, covenant, obligation, or other provision, and the term Breach means any such inaccuracy, breach, failure, claim, occurrence, or circumstance."
"Hazardous Materials shall include any (i) hazardous substance as defined under CERCLA (42 U.S.C.  9601 et seq.); (ii) substance that is or may be designated pursuant to Section 311(b)(2)(A) of the Federal Water Pollution Control Act, as amended (33 U.S.C.  1251, 1321(b)(2)(A)) (FWPCA); (iii) hazardous waste identified pursuant to Section 3001 of the Resource Conservation and Recovery Act, as amended (42 U.S.C.  6901, 6921) (RCRA); (iv) substance containing petroleum, as that term is defined in Section 9001(8) of RCRA; (v) toxic pollutant that is or may be listed under Section 307(a) of FWPCA; (vi) hazardous air pollutant that is or may be listed under Section 112 of the Clean Air Act, as amended (42 U.S.C.  7401, 7412); (vii) imminently hazardous chemical substance or mixture with respect to which action has been or may be taken pursuant to Section 7 of the Toxic Substances Control Act, as amended (15 U.S.C.  2601, 2606); (viii) source, special nuclear, or by-product material as defined by the Atomic Energy Act of 1954, as amended (42 U.S.C.  2011 et seq.); (ix) asbestos, asbestos-containing material, or urea formaldehyde or material that contains it; (x) waste oil and other petroleum products; and (xi) any other toxic materials, contaminants, or hazardous substances or wastes pursuant to any Environmental Law."
"2.5 Allocation of Purchase Price. The Purchase Price and the liabilities assumed by Purchaser in accordance with Section 2.2 hereof (together, the TotalConsideration) as finally determined shall be allocated among the Assets acquired hereunder as described on Exhibit 2.5 hereof. Seller and Purchaser each hereby agrees that it shall not take a position on any income tax return, before any governmental agency charged with the collection of any income tax, or in any judicial proceeding that is in any way inconsistent with the terms of this Section 2.5."
"(a) Seller has all requisite corporate power and authority to enter into this Agreement and to consummate the Contemplated Transactions. The execution and delivery of this Agreement, the Security and Pledge Agreement, the Escrow Agreement and the Bill of Sale and the consummation of the Contemplated Transactions have been duly authorized by all necessary corporate action on the part of Seller, including the approval of the Contemplated Transactions by the shareholders of Seller. This Agreement has been duly executed and delivered by Seller and constitutes the valid and binding obligation, of Seller, enforceable against it in accordance with its terms, subject to general equity principles and bankruptcy, insolvency, reorganization, and similar laws affecting the rights of creditors generally. Upon execution and delivery by Seller of the Bill of Sale, the Security and Pledge Agreement, the Escrow Agreement Purchaser shall acquire good, valid, and marketable title to the Assets free and clear of any Encumbrances."
"(a) Seller is in the process of filing all Tax Returns that are or were required to be filed by it pursuant to applicable Legal Requirements. Seller shall grant access to the Companys tax accountant, who shall make available to Purchaser copies of, and Schedule 4.10 of the Disclosure Memorandum contains a complete and accurate list of, all such Tax Returns relating to income or franchise taxes filed since Fiscal Year 2013. Seller will certify that Seller has paid, or made provision for the payment of, all Taxes that have or may have become due pursuant to those Tax Returns or otherwise, or pursuant to any assessment received by Seller, except such Taxes, if any, as are listed in Schedule 4.10 of the Disclosure Memorandum and are being contested in good faith and as to which adequate reserves (determined in accordance with GAAP) have been provided in the Balance Sheet."
"(b) Schedule 4.10 of the Disclosure Memorandum contains a complete and accurate list of all audits of Tax Returns, including a reasonably detailed description of the nature and outcome of each audit. All deficiencies proposed as a result of such audits have been paid, reserved against, settled, or, as described in Schedule 4.10 of the Disclosure Memorandum, are being contested in good faith by appropriate proceedings. Schedule 4.10 of the Disclosure Memorandum describes all adjustments to such Tax Returns filed by Seller or any group of corporations for all taxable years since 2013, and the resulting deficiencies proposed by the respective taxing authorities. Except as described in Schedule 4.10 of the Disclosure Memorandum, Seller has not given or been requested to give waivers or extensions (or is or would be subject to a waiver or extension given by any other Person) of any statute of limitations relating to the payment of Taxes of Seller or for which Seller may be liable."
"4.15 Absence of Certain Changes and Events. Except as set forth in Schedule 4.15 of the Disclosure Memorandum or as expressly contemplated by this Agreement, since the date of the Balance Sheet, with respect to VitaCBD Brand or the Assets, Seller has conducted its business only in the Ordinary Course of Business and there has not been any:"
"(e) Material Contracts relating to the sale, design, manufacture, or provision of products or services by Seller have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in violation of any Legal Requirement. None of such Material Contracts is likely to result in a material loss to Seller upon completion of performance."
"4.19 Labor Relations; Compliance. Since December 30, 2010, Seller has not been and is not a party to any collective bargaining or other labor Contract except as set forth in Schedule 4.19 to the Disclosure Memorandum. Since December 30, 2010, there has not been, there is not presently pending or existing, and to Knowledge of Seller there is not Threatened, (a) any strike, slowdown, picketing, work stoppage, or employee grievance process (b) except as set forth on Schedule 4.19 to the Disclosure Memorandum any Proceeding against or affecting Seller relating to the alleged violation of any Legal Requirement pertaining to labor relations or employment matters, including any charge or complaint filed by an employee or union with the National Labor Relations Board, the Equal Employment Opportunity Commission, or any comparable Governmental Body, organizational activity, or other labor or employment dispute against or affecting Seller or its premises, or (c) any application for certification of a collective bargaining agent. To the Knowledge of Seller no event has occurred or circumstance exists that could provide the basis for any work stoppage or other labor dispute. There is no lockout of any employees by Seller, and Seller contemplates no such action. Seller has complied in all respects with all Legal Requirements relating to employment, equal employment opportunity, nondiscrimination, immigration, wages, hours, benefits, collective bargaining, the payment of social security and similar taxes, occupational safety and health, and plant closing. Seller is not liable for the payment of any compensation, damages, taxes, fines, penalties, or other amounts, however designated, for failure to comply with any of the foregoing Legal Requirements."
"(i) all United States and foreign inventions and discoveries, whether or not patentable or reduced to practice, and all United States and foreign patents, registration and applications for the foregoing, including provisional applications, continuations, continuations-in-part, divisions, invention disclosure statements, statutory invention registrations, reissues, renewals and extensions and improvements thereto (Patent Rights);"
"(h) Except as disclosed in Schedule 4.20(h) of the Disclosure Memorandum: (i) no infringement, misappropriation, violation or dilution of any Intellectual Property Assets or other property right of any other Person has occurred or results in any way from the operations of the Sellers business; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property Assets or other property right of any other Person has been made or asserted in respect of the operations of the business of the Seller; and (iii) the Seller has not had notice of, or knowledge of any basis for, a claim against the Seller that its operations, activities, products, software, equipment, machinery or processes infringe, misappropriate, violate or dilute any Intellectual Property Assets or other property right of any other Person."
"4.21 Certain Payments. None of Seller, any director, officer, agent, or employee of Seller, or to the Knowledge of Seller, any other Person associated with or acting for or on behalf of Seller, has directly or indirectly (a) made any contribution, gift, bribe, rebate, payoff, influence payment, kickback, or other payment to any Person, private or public, regardless of form, whether in money, property, or services (i) to obtain favorable treatment in securing business, (ii) to pay for favorable treatment for business secured, (iii) to obtain special concessions or for special con-cessions already obtained, for or in respect of Seller, or (iv) in violation of any Legal Requirement, or (b) established or maintained any fund or asset that has not been recorded in the books and records of Seller."
"6.1 Access and Investigation. Between the date of this Agreement and the Closing Date, Seller shall (a) afford Purchaser and its Representatives and prospective lenders and their Representatives (collectively, Purchasers Advisors) full and free access to Sellers personnel, properties, contracts, books and records, and other documents and data, (b) furnish Purchaser and Purchasers Advisors with copies of all such contracts, books and records, and other existing documents and data as Purchaser may reasonably request, and (c) furnish Purchaser and Purchasers Advisors with such additional financial, operating, and other data and information as Purchaser may reasonably request."
"6.3 Negative Covenant. Except as otherwise expressly permitted by this Agreement, between the date of this Agreement and the Closing Date, Seller shall not, without the prior consent of Purchaser, take any affirmative action, or fail to take any reasonable action within its control, as a result of which any of the changes or events listed in Section 4.15 is likely to occur."
(ii) Cherry Hemp Oil (CHO)  is a bulk isolate supplier and vape pen brand. CHO sales bulk isolate products to retailers and brands for use in their products. As a condition to this agreement CHO will sell bulk isolate at its cost to the Purchaser for use in their products.
"8.5 No Claim Regarding Asset Ownership or Sale Proceeds. There must not have been made or Threatened by any Person any claim that such Person (a) is the holder or the beneficial owner of, or has the right to acquire or to obtain beneficial ownership of, any of the Assets, or (b) is entitled to all or any portion of the Purchase Price."
"8.6 No Prohibition. Neither the consummation nor the performance of any of the Contemplated Transactions shall, directly or indirectly (with or without notice or lapse of time), materially contravene, or conflict with, or result in a material violation of, or cause Purchaser or any Person affiliated with Purchaser to suffer any material adverse consequence under any applicable Legal Requirement or Order."
"10.2 Effect of Termination. Each partys right of termination under Section 10.1 is in addition to any other rights it may have under this Agreement or otherwise, and the exercise of a right of termination shall not be an election of reme-dies. If this Agreement is terminated pursuant to Section 10.1, all fur-ther obligations of the parties under this Agreement shall terminate, except that the obligations in Sections 12.1 and 12.3 shall survive; provided, however, that if this Agreement is terminated by a party because of the Breach of the Agreement by the other party or because one or more of the conditions to the terminating partys obligations under this Agreement is not satisfied as a result of the other partys failure to comply with its obligations under this Agreement, the termi-nating partys right to pursue all legal remedies shall survive such termination unimpaired."
"(c) Notwithstanding the foregoing, if an indemnified party deter-mines in good faith that there is a reasonable probability that a Pro-ceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Proceeding, but the indemnifying party shall not be bound by any compromise or settlement effected without its consent (which may not be unreasonably withheld)."
"(a) If the Closing occurs, Purchaser and Seller shall pay their respective expenses incurred in connection with the preparation, execution, and performance of this Agreement and the Contemplated Transactions, including all fees and expenses of agents, representatives, counsel, and accountants of the parties (Transaction Expenses). In the event of termination of this Agreement, each party shall bear its own Transaction Expenses, except that the obligation of each party to pay its own Transaction Expenses shall be subject to any rights of such party arising from a Breach of this Agreement by another party."
"12.10 Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree shall remain in full force and effect to the extent not held invalid or unenforceable."
" | Accounts ---|---  | Accounts receivable  | Accounting records  | Business plans and information  | Contracts, agreements, arrangements and understandings  | CDs, tapes, photographs and images  | books and periodicals  | books and records  | electronic data, digital files, data and information  | Proposals and memoranda of understanding  | Marketing and advertising information and materials  | Client and customer relationships  | All customer and prospective customer lists  | Past, current and future claims and causes of action  | Passwords  | Rights to any agreement or monies  | Tax information and materials  | Trade secrets, patents and patentable information  | Software and software licenses  | Source code and object code  | Copyrights, trademarks, trade names  | Unearned revenue  | URLs, webpages and information and associated web properties  | Any other assets not listed on this Exhibit 1-A. "
"6\. Further Assurances. Seller shall from time to time after the date hereof at the request of Buyer and without further consideration execute and deliver to Buyer such additional instruments of conveyance in addition to this Bill of Sale as Buyer shall reasonably request to evidence more fully the transfer by Seller to Buyer of the Assets. Buyer shall, from time to time after the date hereof at the request of Seller and without further consideration, execute and deliver to Seller such additional instruments as Seller shall reasonably request to evidence more fully the assumption by Buyer of the Assumed Liabilities."
"a.Investment Purpose. As of the date hereof, the Buyer is purchasing the Note and the shares of Common Stock issuable upon conversion of or otherwise pursuant to the Note, such shares of Common Stock being collectively referred to herein as the Conversion Shares and, collectively with the Note, the Securities) 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 1933 Act; provided, however, that by making the representations herein, the Buyer does not agree 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."
"b.Accredited Investor Status. The Buyer is an accredited investor as that term is defined in Rule 501(a) of Regulation D (an Accredited Investor). Any of Buyers transferees, assignees, or purchasers must be accredited investors in order to qualify as prospective transferees, permitted assignees in the case of Buyers or Holders transfer, assignment or sale of the Note."
"f.Absence of Litigation. Except as disclosed in the Companys Periodic Report filings with the SEC, there is no action, suit, claim, proceeding, inquiry or investigation before or by any court, public board, government agency, self-regulatory organization or body pending or, to the knowledge of the Company or any of its subsidiaries, threatened against or affecting the Company or any of its subsidiaries, or their officers or directors in their capacity as such, that could have a material adverse effect. Schedule 3(f) contains a complete list and summary description of any pending or, to the knowledge of the Company, threatened proceeding against or affecting the Company or any of its subsidiaries, without regard to whether it would have a material adverse effect. The Company and its subsidiaries are unaware of any facts or circumstances which might give rise to any of the foregoing."
"a.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."
"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."
"(c) Closings; Use of Proceeds. The sale and purchase of the Common Stock and Warrants to be purchased by the Investors shall take place at one or more closings (each a Closing and collectively, the Closings) to be held at such places and times as the Company and the applicable Investors may determine (each a Closing Date and collectively Closing Dates). At each Closing, the Company will deliver to each of the applicable Investors the Common Stock and the Warrants to be purchased by such Investor dated the date of the Closing and registered in such Investors name, against receipt by the Company of such Investors Investment Amount from the escrow agent for the offering, for the account of the Company by wire transfer of immediately available funds in accordance with the Companys and the placement agents (Placement Agent) instructions. The Company may conduct additional Closings at the Companys option in the Companys and Placement Agents sole discretion to be held at such places and Closing Dates as the Company, the Placement Agent and the Investors participating in such Closings may determine. The proceeds from the sale of the Common Stock and Warrants shall be used for costs and expenses of the Company in connection with research and development, general and administrative purposes, and working capital. The final Closing shall be no later than March 31, 2017 unless extended until June 30, 2017."
"(b) Authority; Enforceability. The execution, delivery and performance by the Company of this Agreement and each Warrant issued hereunder (collectively, the Transaction Documents) and the consummation of the transactions contemplated hereby and thereby (i) are within the corporate power of the Company and (ii) have been duly authorized by all necessary corporate action on the part of the Company. Each Transaction Document executed by the Company has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the enforcement of creditors rights generally and general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)."
"(d) Litigation. As of the date of the initial Closing, no actions (including, without limitation, derivative actions), suits, proceedings or investigations are pending or, to the knowledge of the Company, threatened in writing against the Company or the Companys subsidiaries, if any, at law or in equity in any court or before any other governmental authority."
"(h) The Company and the Companys subsidiaries hereby represent, warranty and covenant that they have not, and so long as the Investor continues to have the exchange right provided by Section 1(b) of this Agreement, neither the Company, nor its subsidiaries, shall enter into a financing transaction pursuant to Sections 3(a)(9) or 3(a)(10) of the Securities Act of 1933, as amended, or enter into any equity, debt, convertible or equity-linked securities financing arrangement having full-ratchet anti-dilution provisions without a floor or that have an indeterminant number (and potentially infinite number) of shares issuable pursuant to such provisions."
"(a) Brokers and Finders Fees. At the Companys sole discretion, the Company may pay (i) a cash placement agent fee, brokerage commission, finders fee or similar payment of up to 10% of the aggregate of all Unit Purchase Prices to any qualified referral source, which may be an affiliate of the Company, to which it can legally make such payment, in the form of cash, as well as (ii) a warrant fee in the form of a warrant or warrants (Placement Agent Warrants), exercisable into up to 10% of that number of shares of Common Stock issued (but not the Warrants or shares of Common Stock underlying the Warrants). Such Placement Agent Warrants shall be exercisable at 110% of the Unit Purchase Price (which is the same exercise price as the Warrants purchased by the Investors) for each share for which the Placement Agent Warrant is exercised and shall expire on the same expiration date as the Warrants purchased by the Investors. The Placement Agent Warrants shall have a cashless exercise provision. Placement Agent Warrants may be issued to designees of the qualified referral source upon request by the qualified referral source, as may be agreed by the Company in its sole discretion, subject to applicable securities laws. Officers, directors, managers, employees, affiliates and associated persons of the Company, and affiliates of any of the foregoing qualified referral sources, are eligible to invest as Investors in the Common Stock and Warrants, and are eligible to, and may, receive fees, directly or indirectly (including, without limitation, fees in respect of such person or persons investments in the Common Stock and Warrants)."
"Each investor in that financing has the option, but not the obligation, to exchange the entire amount invested (but not less than the entire amount), in such investors sole discretion, into any subsequent offering of the Company until the earlier of (i) the completion of subsequent offerings by the Company aggregating at least $15 million of gross proceeds to the Company, or (ii) December 30, 2017. If exchanged, the amount to be invested in a subsequent offering will be 1.2 times the amount of the initial investment, or 1.4 times the amount of the initial investment if the Company has entered into financing transactions pursuant to Sections 3(a)(9) or 3(a)(10) of the Securities Act of 1933, as amended, or other financing arrangements that have full-ratchet anti- dilution provisions (i) without a floor, or (ii) with an indeterminate and potentially infinite number of shares issuable pursuant to such provisions. If neither termination condition has been reached, and the Company has more than one subsequent offering, the Purchaser may elect to exchange into any Subsequent Offering, regardless of whether such Purchaser has already exchanged into a previously effected subsequent offering; provided, however, that the amount invested in such subsequent offering shall only and always be 1.2 (or 1.4, as applicable) times the amount of the initial investment."
"c) Cashless Exercise. This Warrant may be exercised at any time permitted hereunder, subject to the Limitation set forth in Section 2(a), by means of a cashless exercise in which the Holder shall be entitled to receive a certificate for the number of Warrant Shares equal to the quotient obtained by the following formula:"
"As used herein, Closing Price, shall mean the first of the following clauses that applies: (1) if, at the time of any such calculation, the Common Stock is listed or quoted on the American Stock Exchange, or the New York Stock Exchange, or the NASDAQ Market, the NASDAQ Capital Market or the Archipelago Exchange, or OTC Markets QB or OTX Markets QX, the Closing Price shall be the closing or last sale price reported for the last business day immediately preceding the date of any such calculation; (2) if, at the time of any such calculation, the Common Stock is quoted on the OTC Bulletin Board or listed in the Pink Sheets published by the National Quotation Bureau Inc. or a similar agency or organization succeeding to its function or reporting prices, the Closing Price shall be the average of the closing prices reported for the last five (5) days during which the Common Stock actually traded and for which a closing price is available immediately preceding the date of any such calculation, or (3) in all other cases, the Closing Price of a share of Common Stock shall be the price determined by an independent appraiser selected in good faith by the Holder and reasonably acceptable to the Company."
"ii. Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon surrender of this Warrant, at the time of delivery of the certificate or certificates representing Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant."
"vii. Acquisitions. If at any time while this Warrant is outstanding there is an Acquisition (as defined below) in which the Company is not the surviving entity, then the Holder shall receive from any surviving entity or successor to the Company, in exchange for this Warrant, a new warrant in the surviving entity or successor to the Company substantially in the form of this Warrant and with an exercise price adjusted to reflect the nearest equivalent exercise price of common stock (or other applicable equity interest) of the surviving entity that would reflect the economic value of this Warrant, but in the surviving entity. An Acquisition shall mean the closing of a merger, share exchange, consolidation, acquisition of all or substantially all of the assets or stock, reorganization or liquidation of the Company that results in the stockholders of the Company immediately prior to such transaction owning less than 50% of the voting capital stock of the Company (or its successor or parent corporation) immediately after the transaction or, in the case of a sale of assets or liquidation, the Company owning after the transaction less than substantially all of the assets owned by the Company prior to the transaction (other than an issuance of equity securities for the primary purpose of raising capital) or any other event that constitutes a Capital Change under the Companys Second Restated Certificate of Incorporation, as it may be amended, restated or otherwise modified from time to time. The Holder shall execute all documentation required to be executed by the Company or the acquirer or successor of the Company in connection with the Acquisition, including, without limitation, escrow, indemnification and other similar agreements. Subject to and to the extent permitted by applicable law, the Company will endeavor to notify the Holder of any proposed Acquisition at least 30 days prior to the date of any Acquisition (or such shorter period as reasonably practicable under the circumstances); provided that the failure to so notify the Holder shall not in any way impair the Acquisition."
"e. Call Provision. If at any time prior to the expiration of, or the exercise by the Holder of this Warrant the closing price of Companys common stock is 200% or more than the Unit Purchase Price for five (5) consecutive trading days (the Trading Price Condition), the Company shall have the right to call, redeem and cancel this Warrant on the tenth day after written notice by the Company to the Holder and payment to the Holder in cash of $0.001 per Warrant Share. To effectively exercise this call provision, such written notice of intent to exercise the call provision under this Section 2(e) must be provided by the Company by the close of business on the second trading day following satisfaction of the Trading Price Condition. The Holder may exercise this Warrant on a cash or cashless basis after written notice by the Company, but before the tenth day after such written notice, which exercise shall nullify the Companys right to call, redeem and cancel this Warrant. Failure by the Company to provide timely notice shall preclude the Company from exercising this call provision with respect to the satisfaction of the Trading Price Condition over that five (5) consecutive trading day period but shall not preclude the Company from exercising this call provision with respect to satisfaction of the Trading Price Condition over any other subsequent five (5) consecutive trading days. The Company may not call, redeem or cancel any portion of this Warrant that may not be exercised during the ten (10) day notification period pursuant to the restrictions on exercise in Section 2(a)."
"a) Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this Warrant and which shall not include any dividends paid- in-kind in respect to the Series G 1.5% Convertible Preferred Stock), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares or (iv) issues by reclassification of shares of the Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification."
"ii. Notice to Allow Exercise by Holder. If (A) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (B) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, or (C) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, any of the events in Section 3.(c)ii (A), (B) or (C) being an Event, then, in each case, the Company shall cause to be mailed to the Holder at its last address as it shall appear upon the Warrant Register (as defined below) of the Company, at least ten (10) calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record shall be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such Event is expected to become effective or close, as applicable, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such Event; provided that the failure to mail such notice or any defect therein or in the mailing thereof shall not affect the validity of the corporate action required to be specified in such notice. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the Event triggering such notice except as may otherwise be expressly set forth herein."
"a) Transferability. Subject to compliance with any applicable securities laws, the conditions set forth in Section 4(d) hereof, and the conditions of the Purchase Agreement (including, without limitation, the Companys prior written consent in accordance with the Purchase Agreement) pursuant to which this Warrant was purchased, this Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with an Assignment Form duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.."
"e) Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities law, except pursuant to sales registered or exempted under the Securities Act. The Holder acknowledges that the Warrant Shares will not be registered under the Securities Act of 1933, as amended, or any applicable statute or foreign securities law, and will therefore not be freely transferable."
"h) Notices. Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall be deemed delivered the day after the date sent if sent by overnight courier, the same day sent if sent by facsimile transmission or email with confirmation of receipt by the Holder, or three (3) days after deposit with the US Postal Service if sent via certified mail or first class mail if sent to the Holder at the address, facsimile number or email address provided by the Holder as of the last date on which Holder communicated in writing such contact information to the Company."
"j) Successors and Assigns. Subject to applicable securities laws, the provisions and limitations of the Purchase Agreement (including, without limitation, the Companys prior written consent in accordance with the Purchase Agreement) and this Warrant, and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder. Such successors or permitted assigns of the Holder shall be deemed to be the Holder for all purposes hereunder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder or holder of Warrant Shares. Nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Warrant."
"m) Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant."
Signature: |  |  ---|---|---  |  |  Name (print): |  |   |  |  Address: |  |   |  |   |  |   |  |   |  |   |  |  Email: |  |   |  |  Facsimile Number: |  |  
"NOTE: The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatsoever, and must be guaranteed by a bank or trust company. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Warrant."
"## f. Restricted Securities. The Purchaser understands that the Shares being purchased are characterized as restricted securities under the U.S. securities laws and that the Shares may be resold without registration only in certain limited circumstances, and that the Shares when issued to the Purchaser will bear the restricted legend restricting transfer. The Purchaser is experienced in purchasing securities that are not readily transferable."
"E. The Offered Notes will rank senior to all outstanding and future indebtedness of the Company (other than Permitted Senior Indebtedness) (as defined in the Offered Notes) and pari passu with the 10% Senior Secured Convertible Notes issued to the Buyer on July 27, 2016, will be guaranteed by all direct and indirect U.S. Subsidiaries (as defined in Section 3(a)) of the Company, currently formed or formed in the future, as evidenced by a guaranty agreement, in the form attached hereto as Exhibit D (as amended or modified from time to time in accordance with its terms, the Guaranty Agreement), and assuming the Collateral Agent (as defined below) takes the proper and necessary steps to perfect the security interest immediately following the Initial Closing Date or the Additional Closing Date, as the case may be, will be secured by a first priority perfected security interest, subject to Permitted Liens (as defined in the Offered Notes) which may have priority over such security interest to the extent such Permitted Liens are expressly subordinated to such security interest or are subordinated as a matter of law to such security interest, in all of the current and future assets of the Company and all direct and indirect U.S. Subsidiaries of the Company, currently formed or formed in the future, and a pledge of 65% of the capital stock of any direct foreign subsidiary of the Company, currently formed or formed in the future, as evidenced by a pledge and security agreement, substantially in the form attached hereto as Exhibit E, (as amended or modified from time to time in accordance with its terms, the Security Agreement)."
"(i) Initial Closing. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, the Company shall issue and sell to the Buyer, and the Buyer agrees to purchase from the Company, on the Initial Closing Date (as defined below), a principal amount of Offered Notes (the Initial Notes) as is set forth opposite the Buyers name in column (3) on the Schedule of Buyers. The initial closing hereunder (the Initial Closing) shall take place at 10:00 a.m., New York City time, on or prior to January 26, 2017 (the Initial Closing Date) after notification of satisfaction (or waiver) of the conditions to the Initial Closing set forth in Sections 5 and 6 hereof at the offices of Troutman Sanders LLP, 875 Third Avenue, New York, New York 10022 or such other location as is mutually agreed by the Company and the Buyers."
"(ii) Additional Closings. After the Initial Closing, additional Offered Notes in the aggregate principal amount of up to $112,500 (the Additional Notes) shall be issued and sold to the Buyer (at its sole election) at one or more additional closings (each a Additional Closing and all Additional Closings and the Initial Closing, together, the Closings). Each Additional Closing shall take place at 10:00 a.m., New York City time, on such date (each such date, a Additional Closing Date) as is mutually agreed to by the Company and Buyer but in no event after June 30, 2017, after notification of satisfaction (or waiver), of the conditions to the Subsequent Closing set forth in Sections 5 and 6 hereof at the offices of Troutman Sanders LLP, 875 Third Avenue, New York, New York 10022 or such other location as is mutually agreed by the Company and Buyer being sold in the Additional Closing in question."
"(h) Validity; Enforcement. This Agreement and the Registration Rights Agreement have been duly and validly authorized, executed and delivered on behalf of the Buyer and shall constitute the legal, valid and binding obligations of the Buyer enforceable against the Buyer in accordance with their respective 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."
"(k) SEC Documents; Financial Statements. Except as disclosed in Schedule 3(k), since January 1, 2014, the Company has timely filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the 1934 Act (all of the foregoing filed prior to the date hereof, and all exhibits included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the SEC Documents). The Company has delivered to the Buyers or their respective representatives true, correct and complete copies of the SEC Documents not available on the EDGAR system. As of their respective filing dates, the SEC Documents complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, 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 the light of the circumstances under which they were made, not misleading. As of their respective filing 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 (GAAP) (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company and its Subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which will not be material, either individually or in the aggregate). No other information provided by or on behalf of the Company to any of the Buyers which is not included in the SEC Documents, including, without limitation, information referred to in Section 2(d) of this Agreement or in the disclosure schedules to this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are or were made, not misleading."
"(s) Indebtedness and Other Contracts. (i) Except as disclosed in Schedule 3(s)(i), neither the Company nor any of its Subsidiaries has any outstanding Indebtedness (as defined below), (ii) except as disclosed in Schedule 3(s)(ii), neither the Company nor any of its Subsidiaries is a party to any contract, agreement or instrument, the violation of which, or default under which, by the other party(ies) to such contract, agreement or instrument could reasonably be expected to result in a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries is in violation of any term of or in default under any contract, agreement or instrument relating to any Indebtedness, except where such violations and defaults would not result, individually or in the aggregate, in a Material Adverse Effect, or (iv) neither the Company nor any of its Subsidiaries is a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Companys officers, has or is expected to have a Material Adverse Effect. Schedule 3(s)(i) provides a detailed description of the material terms of any such outstanding Indebtedness. For purposes of this Agreement: (x) Indebtedness of any Person means, without duplication (A) all indebtedness for borrowed money in excess of $50,000, (B) all obligations issued, undertaken or assumed as the deferred purchase price of property or services, including, without limitation, capital leases in accordance with GAAP (other than trade payables entered into in the ordinary course of business consistent with past practice), (C) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (D) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses, (E) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to any property or assets acquired with the proceeds of such indebtedness (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property), (F) all monetary obligations under any leasing or similar arrangement which, in connection with GAAP, consistently applied for the periods covered thereby, is classified as a capital lease, (G) all indebtedness referred to in clauses (A) through (F) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, claim, tax, right of first refusal, lien, pledge, charge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (H) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (A) through (G) above; and (y) Contingent Obligation means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any Indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto."
"(w) Title. The Company and its Subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them which is material to the business of the Company and its Subsidiaries, in each case free and clear of all liens, encumbrances and defects except for Permitted Liens (as defined in the Offered Notes), which do not materially affect the value of such property and do not interfere with the use made or proposed to be made of such property by the Company and any of its Subsidiaries. Any real property and facilities held under lease by the Company or any of its Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company or any of its Subsidiaries."
"(y) Environmental Laws. The Company and its Subsidiaries (i) are in compliance with any and all Environmental Laws (as hereinafter defined), (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 of the foregoing clauses (i), (ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. The term Environmental Laws means all federal, state, local or foreign laws relating to pollution or protection of human health or the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata), including, without limitation, 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."
"(bb) Tax Status. The Company and each of its Subsidiaries (i) has made or filed all U.S. federal, state and foreign income and all other material 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, except those being contested in good faith and (iii) has set aside on its books provision reasonably adequate for the payment of all 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 and its Subsidiaries know of no basis for any such claim."
"(mm) Shell Company Status. The Company is not, and has not been since September 4, 2013, an issuer identified in Rule 144(i)(1) of the 1933 Act. As of September 4, 2013, the Company filed current Form 10 information (as defined in Rule 144 (i)(3)) with the SEC reflecting its status as an entity that was no longer an issuer described in Rule 144(i)(1)(i)."
"(oo) No Disagreements with Accountants and Lawyers. There are no material disagreements of any kind presently existing, or reasonably anticipated by the Company to arise, between the Company and the accountants and lawyers formerly or presently employed by the Company and the Company is current with respect to any fees owed to its accountants and lawyers which could affect the Companys ability to perform any of its obligations under any of the Transaction Documents."
"(rr) Money Laundering. The Company and its Subsidiaries are in compliance with, and have not previously violated, the USA Patriot Act of 2001 and all other applicable U.S. and non-U.S. anti-money laundering laws and regulations, including, but not limited to, the laws, regulations and Executive Orders and sanctions programs administered by the U.S. Office of Foreign Assets Control, including, but not limited, to (i) Executive Order 13224 of September 23, 2001 entitled, Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)); and (ii) any regulations contained in 31 CFR, Subtitle B, Chapter V."
"(ii) From the date hereof until the date that ninety (90) days immediately following the Closing Date, other than with respect to Excluded Securities (as defined in the Offered Notes), the Company will not: (i) directly or indirectly, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition of) any of its or its Subsidiaries equity or equity equivalent securities, including without limitation any convertible debt, preferred stock or other instrument or security that is, at any time during its life and under any circumstances, convertible into or exchangeable or exercisable for Common Stock or Common Stock Equivalents or (ii) be party to any solicitations, negotiations or discussions with regard to the foregoing."
"(o) Directors. Within 10 days of written request from the Buyer, the Board of Directors of the Company shall take all necessary action to appoint to the Board of Directors such persons as the Buyer shall determine so that, following such appointment, such persons represent one third (1/3) of the number of persons on the Board of Directors; provided that in order to comply with this Section 4(o), the Board of Directors shall cause such number of current members of the Board of Directors to resign from the Board rather than increase the size of the Board."
"(i) The Buyer hereby (a) appoints Passaic River Capital LLC as the collateral agent hereunder and under the Security Documents (in such capacity, the Collateral Agent), and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Buyers behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not have, by reason hereof or pursuant to any Security Documents, a fiduciary relationship in respect of the Buyer. Neither the Collateral Agent nor any of its officers, directors, employees and agents shall have any liability to the Buyer for any action taken or omitted to be taken in connection hereof or the Security Documents except to the extent caused by its own gross negligence or willful misconduct, and the Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the Collateral Agent Indemnitees) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security Documents."
"(iv) The Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the holders of a majority of the outstanding principal amount of Offered Notes or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4(q), to secure a successor Collateral Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent."
"(t) Option to Purchase Preferred Stock. From the date that the Offered Notes and the 10% Senior Secured Convertible Notes issued to the Buyer on January 27, 2106 are converted into shares of Common Stock, until Janaury 26, 2020, the Buyer has the option, in its sole and absolute discretion, to purchase 10 shares of a new series of preferred stock of the Company for a purchase price of $10.00, which new series of preferred stock will have substantially similar rights, powers, and preferences as the shares of series A preferred stock, par value $0.001 per share, which were issued to the Buyer on July 27, 2016; provided that the new series of preferred stock will provide that the Buyer will have right to appoint a majority of the members Board of Directors of the Company."
"The obligation of the Company hereunder to issue and sell the Initial Notes or the Additional Notes, as the case may be, to the Buyer at the Initial Closing or the Additional Closing, as the case may be, is subject to the satisfaction, at or before the Initial Closing Date or the Additional Closing Date, as the case may be, of each of the following conditions, provided that these conditions are for the Companys sole benefit and may be waived by the Company at any time in its sole discretion by providing the Buyer with prior written notice thereof:"
"(i) The Company and each of its Subsidiaries shall have duly executed and delivered to the Buyer each of the following documents to which it is a party: (A) each of the Transaction Documents, and (B) the Initial Notes or the Additional Notes, as the case may be (allocated in such principal amounts as the Buyer shall request), being purchased by the Buyer at the Initial Closing Date or the Additional Closing Date, as the case may be, pursuant to this Agreement;"
"(ix) The Collateral Agent shall have received certified copies of request for copies of information on Form UCC-11, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries and which are filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by the Security Agreement, together with copies of such financing statements, none of which, except as otherwise agreed in writing by the Collateral Agent, shall cover any of the Collateral, and the results of searches for any lien recorded with the USPTO or U.S. copyright office, any tax lien and judgment lien filed against such person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent, shall not show any such liens."
"(x) The Collateral Agent shall have received the Security Agreement, duly executed by the Company and each of its U.S. Subsidiaries, together with (A) the original stock certificates representing all of the equity interests and all promissory notes required to be pledged thereunder, accompanied by undated stock powers and allonges executed in blank and other proper instruments of transfer and (B) any copyright, patent and trademark agreements required by the terms of the Security Agreement."
"(k) Indemnification. In consideration of the Buyers execution and delivery of the Transaction Documents and acquiring the Securities thereunder and in addition to all of the Companys other obligations under the Transaction Documents, the Company shall defend, protect, indemnify and hold harmless the Buyer and each other holder of the Securities and all of their stockholders, partners, members, officers, directors, employees and direct or indirect investors and any of the foregoing Persons agents or other representatives (including, without limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively, the Indemnitees) from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable and documented attorneys fees and disbursements (the Indemnified Liabilities), incurred by any Indemnitee as a result of, or arising out of, or relating to (a) any misrepresentation or breach of any representation or warranty made by the Company in the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby, (b) any breach of any covenant, agreement or obligation of the Company contained in the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby or (c) any cause of action, suit or claim brought or made against such Indemnitee by a third party (including for these purposes a derivative action brought on behalf of the Company) and arising out of or resulting from (i) the execution, delivery, performance or enforcement of the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby, (ii) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Securities or (iii) the status of the Buyer or holder of the Securities as an investor in the Company pursuant to the transactions contemplated by the Transaction Documents. To 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 Indemnified Liabilities that is permissible under applicable law. Except as otherwise set forth herein, the mechanics and procedures with respect to the rights and obligations under this Section 9(m) shall be the same as those set forth in Section 6 of the Registration Rights Agreement."
"(m) Remedies. The Buyer and each holder of the Securities shall have all rights and remedies set forth in the Transaction Documents and all rights and remedies which such holders have been granted at any time under any other agreement or contract and all of the rights which such holders have under any law. Any Person having any rights under any provision of this Agreement shall be entitled to enforce such rights specifically (without posting a bond or other security), to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law. Furthermore, the Company recognizes that in the event that it fails to perform, observe, or discharge any or all of its obligations under the Transaction Documents, any remedy at law may prove to be inadequate relief to the Buyer. The Company therefore agrees that the Buyer shall be entitled to seek temporary and permanent injunctive relief in any such case without the necessity of proving actual damages and without posting a bond or other security."
"""Affiliate"" means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Person, and the term ""control"" (including the terms ""controlled by"" and ""under common control with"") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise."
"""Documents"" means any and all files, documents, instruments, computer programs on a tangible medium, papers, books, reports, records, tapes, microfilms, templates, vendor lists, supply-chain documents, photographs, letters, budgets, forecasts, ledgers, journals, customer lists, regulatory filings, operating data and plans, technical documentation (e.g., design specifications, engineering files, functional requirements, operating instructions, source code, logic manuals, flow charts), user documentation (e.g., installation guides, user"
"""Intellectual Property License"" means (i) any grant to a third Person of any right to use or otherwise related to any of the Purchased Intellectual Property, and also means (ii) any grant to Sellers of a right to use a third Person's intellectual property rights for or related to the use of any Purchased Intellectual Property or conducting the Business."
"""Liability"" means any debt, loss, damage, adverse claim, liability or obligation (whether direct or indirect, known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, or due or to become due, and whether in contract, tort, strict liability or otherwise), and including all costs and expenses relating thereto."
"""Purchased Intellectual Property"" means all intellectual property rights (including the right to sue and collect past damages for infringement or misappropriation thereof) owned by, used by, or assigned to Sellers in connection with the Business and arising from or in respect of the following, whether protected, created or arising under the laws of the United States or any other jurisdiction:"
"""Technology"" means all discoveries, concepts, designs, drawings, formulae, algorithms, procedures, compositions, methods, databases, techniques (including manufacturing and production processes and techniques), ideas, know-how, show-how, research and development, technical data, programs, subroutines, specifications, technical information, commercial information (e.g., customer lists, supplier lists, supply-chain information, pricing and cost information, and business and marketing plans and proposals) processes, inventions (whether patentable or unpatentable and whether or not reduced to practice), creations, improvements, works of authorship and other similar materials, and all recordings, graphs, drawings, reports, analyses, and other writings, and other tangible embodiments of the foregoing, in any form whether or not specifically listed herein, and all related technology."
"Calculation of Time Period. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is a non-Business Day, the period in question shall end on the next succeeding Business Day."
"Headings. The provision of a Table of Contents, the division of this Agreement into Articles, Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement. All references in this Agreement to any ""Section"" are to the corresponding Section of this Agreement unless otherwise specified."
"2.7 Further Conveyances and Assumptions; Consent of Third Parties. From time to time following Closing, Sellers and Purchasers shall, and shall cause their respective Affiliates to, execute, acknowledge and deliver all such further conveyances, notices, assumptions, releases and acquaintances and such other instruments, and shall take such further actions, as may be necessary or appropriate to assure fully to Purchasers and their respective successors or assigns, all of the properties, rights, titles, interests, remedies, powers and privileges intended to be conveyed to Purchasers under this Agreement and the Sellers Documents, and to otherwise make effective the transactions contemplated hereby and thereby."
"5.1 Organization and Good Standing. Sellers are corporations duly organized, validly existing and in good standing under the laws of the State of Idaho, for Enviro Voraxial Technology, Inc., and the laws of the State of Florida, for Florida Precision Aerospace, Inc., and Sellers have all requisite corporate power and authority to own and use the Purchased Assets and to conduct the Business conducted pursuant to Sellers' Ordinary Course of Business."
"Except for any patents that have expired due to term, all of Sellers' rights in and to the Purchased Intellectual Property are valid and enforceable. No claims challenging or questioning the validity or enforceability of the Purchased Intellectual Property have been asserted, and there are no facts or circumstances that would reasonably form the basis for any claim challenging the ownership, use, validity or enforceability of the Purchased Intellectual Property. ---|--- (d)"
"Except as provided in Schedule 5.6(j) (which the parties may amend, upon agreement, via a written instrument), there are no contracts or other obligations related to the Purchased Intellectual Property or the Business (whether, for the sake of clarity, in the Oil-and-Gas Market or not) requiring purchases from or sales to a particular Person. ---|--- (k)"
"6.1 Organization and Good Standing. Purchasers are entities duly organized, validly existing and in good standing under the laws of their respective jurisdictions of formation. 6.2 Authorization of Agreement. Purchasers have full corporate power and authority to execute and deliver this Agreement and each other agreement, document, instrument or certificate contemplated by this Agreement or to be executed by Purchasers in connection with the consummation of the transactions under this Agreement. The execution, delivery and performance of those documents have been duly authorized by all necessary corporate action on behalf of Purchasers."
"Except as required under applicable Law, by the applicable rules of the respective stock exchange on which Purchasers or Sellers (or an Affiliate of either) list securities, or reasonably necessary to further the transactions contemplated by this Agreement, neither Sellers nor Purchasers shall issue any press release or public ---|--- S-12"
"Except as required under applicable Law, by the applicable rules of the respective stock exchange on which Purchasers or Sellers (or an Affiliate of either) list securities, or reasonably necessary to further the transactions contemplated by this Agreement, Purchasers and Sellers agree that the terms of this Agreement shall not be disclosed or otherwise made available to the public. ---|--- 7.3 Sellers' Continued Operations. For any goods and services Sellers may provide, in relation to the Business, either prior to Closing or after Closing but pursuant to a right under Section 2.4, Sellers agree that they will operate the Business in a manner providing at least the quality and service as it has in its Ordinary Course of Business, including fulfilling Sellers' obligations with respect to any orders identified on Schedule 5.6(j). Furthermore, Sellers agree to not, without permission from Purchasers, which shall not be unreasonably withheld, enter into any new obligations related to the Purchased Intellectual Property or the Business until after Closing, and even then only to the extent expressly permitted under this Agreement. Purchaser shall provide a response to Seller within two (2) Business Days."
"Sellers shall have obtained a duly executed Termination, Assignment, Settlement And General Release Agreementas set forth in the form provided as Exhibit Bfrom named inventor on U.S. Patent Nos. 6,248,231 and 7,727,386 Mr. Michael A. Anthony (""Anthony""), and fulfilled all obligations regarding payment of funds to Anthony thereunder; and ---|--- "
"In the event that any Legal Proceedings shall be instituted or that any claim or demand (""Claim"") shall be asserted by any third Person in respect of which payment may be sought under Section 11.1 hereof, the indemnified party shall reasonably and promptly cause written notice of the assertion of any Claim of which it has knowledge which is covered by this indemnity to be forwarded to the indemnifying party. If the indemnified party defends any Claim, then the indemnifying party shall reimburse the indemnified party for the expenses of defending such Claim upon submission of periodic bills. The indemnifying party may participate, at his or its own expense, in the defense of such Claim. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such Claim. ---|--- 11.3 General Procedures."
"12.1 Taxes. Sellers shall (i) be responsible for (and shall indemnify and hold harmless Purchasers against) any and all Liabilities for any sales, use, stamp, documentary, filing, recording, transfer, stock transfer, gross receipts, registration, duty, securities transactions or similar fees or Taxes or governmental charges (together with any interest or penalty, addition to tax or additional amount imposed) as levied by any Taxing Authority in connection with the transactions contemplated by this Agreement (collectively, ""Transfer Taxes""), regardless of the Person liable for such Transfer Taxes under applicable Law, and (ii) timely file or caused to be filed all necessary documents (including all tax returns) with respect to Transfer Taxes."
"13.1 Expenses. Except as otherwise provided in this Agreement, each of Sellers and Purchasers shall bear its own expenses incurred in connection with the negotiation and execution of this Agreement and each other agreement, document and instrument contemplated by this Agreement and the consummation of the transactions contemplated hereby and thereby."
"13.8 Non-Recourse. No past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney or representative of Purchasers shall have any liability for any obligations or liabilities of Purchasers under this Agreement or the Purchasers Documents of or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby and thereby."
"WHEREAS, the Borrower, the Administrative Agent and the financial institutions party thereto as lenders (the Lenders) are parties to that certain Third Amended and Restated Revolving Credit Agreement, dated as of August4, 2014 (as amended, restated, supplemented or otherwise modified on or before the Fifth Amendment Effective Date or from time to time thereafter, the Credit Agreement);"
"SECTION 1.Limited Waiver. In reliance on the representations, warranties, covenants and agreements contained in this Amendment, and subject to and upon the terms and conditions set forth herein, the Administrative Agent and each of the Consenting Lenders hereby grant the Waiver. Nothing contained in this Section1 shall be deemed a consent to or waiver of, or a commitment or obligation on the part of the Administrative Agent or the Lenders to any future consent to or waiver of, any other action or inaction on the part of the Borrower or any other Loan Party that constitutes (or would constitute) a violation of or departure from any covenant,"
"6.8.No Implied Waivers. No failure or delay on the part of the Administrative Agent or the Lenders in exercising, and no course of dealing with respect to, any right, power or privilege under this Amendment, the Credit Agreement or any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under this Amendment, the Credit Agreement or any other Loan Document preclude any other or further exercise thereof or the exercise of any other right, power or privilege, all of which are cumulative and are expressly reserved. Except for the Waiver and the amendments set forth in Sections 1 and 2 hereof, nothing contained in this Amendment shall be deemed a consent to or waiver of, or a commitment or obligation on the part of the Administrative Agent or the Lenders to any future consent to or waiver of, any other action or inaction on the part of the Borrower or any other Loan Party that constitutes (or would constitute) a violation of or departure from any covenant, condition or other obligation of the Loan Parties under the Credit Agreement and the other Loan Documents. Any such waivers or consents must be specifically agreed to in writing in accordance with Section12.02 of the Credit Agreement."
"6.10.Interpretation. Wherever the context hereof shall so require, the singular shall include the plural, the masculine gender shall include the feminine gender and the neuter and vice versa. The headings, captions and arrangements used in this Amendment are for convenience only, shall not affect the interpretation of this Amendment, and shall not be deemed to limit, amplify or modify the terms of this Amendment, nor affect the meaning thereof."
"A.The Borrower, the Administrative Agent, and each of the financial institutions party thereto as lenders (the Existing Lenders) are parties to that certain Second Amended and Restated Credit Agreement dated as of November7, 2012 (as amended, the Existing Credit Agreement), pursuant to which the Existing Lenders provided certain loans and extensions of credit to the Borrower (all Indebtedness (as defined below) arising pursuant to the Existing Credit Agreement, the Existing Indebtedness)."
"Applicable Margin means, for any day, with respect to any ABR Loan or Eurodollar Loan, or with respect to the Commitment Fee Rate, as the case may be, the rate per annum set forth in the grid below (subject to the proviso in the last paragraph of this definition) based upon the current Consolidated Total Leverage Ratio then in effect:"
"Business Day means any day that is not a Saturday, Sunday or other day on which commercial banks in New York, New York or Dallas, Texas are authorized or required by law to remain closed; and if such day relates to a Borrowing or continuation of, a payment or prepayment of principal of or interest on, or a conversion of or into, or the Interest Period for, a Eurodollar Loan or a notice by the Borrower with respect to any such Borrowing or continuation, payment, prepayment, conversion or Interest Period, any day which is also a day on which banks are open for dealings in dollar deposits in the London interbank market."
"Commitment means, with respect to each Lender, the commitment of such Lender to make Loans and to acquire participations in Letters of Credit hereunder, expressed as an amount representing the maximum aggregate amount of such Lenders Revolving Credit Exposure hereunder, as such commitment may be (a)reduced from time to time pursuant to Section2.06 and (b)modified from time to time pursuant to assignments by or to such Lender pursuant to Section 12.04(b). The initial amount of each Lenders Commitment is set forth on Annex I hereto, in the Assignment and Assumption pursuant to which such Lender shall have assumed its Commitment. The aggregate amount of the Lenders Commitments on the Fifth Amendment Effective Date is $145,000,000."
"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."
"Environmental Laws means any and all Governmental Requirements pertaining in any way to health, safety, the environment, the preservation or reclamation of natural resources, or the management, Release or threatened Release of any Hazardous Materials, in effect in any and all jurisdictions in which the Borrower or any Subsidiary is conducting, or at any time has conducted, business, or where any Property of the Borrower or any Subsidiary is located, including, the Oil Pollution Act of 1990 (OPA), as amended, the Clean Air Act, as amended, the Comprehensive Environmental, Response, Compensation, and Liability Act of 1980 (CERCLA), as amended, the Federal Water Pollution Control Act, as amended, the Occupational Safety and Health Act of 1970, as amended, the Resource Conservation and Recovery Act of 1976 (RCRA), as amended, the Safe Drinking Water Act, as amended, the Toxic Substances Control Act, as amended, the Superfund Amendments and Reauthorization Act of 1986, as amended, the Hazardous Materials Transportation Act, as amended, and other environmental conservation or protection Governmental Requirements."
"Equity Issuance Proceeds means (a)with respect to any Equity Issuance, all cash proceeds and Cash Equivalents received by the Borrower and its Subsidiaries from such Equity Issuance (other than from any other Loan Party) after payment of, or provision for, all underwriter fees and expenses, SEC and blue sky fees, printing costs, fees and expenses of accountants, lawyers and other professional advisors, brokerage commissions and other out-of-pocket fees and expenses actually incurred in connection with such Equity Issuance, and (b)with respect to existing Equity Interests, cash contributions made to the Borrower from the holders of its Equity Interests on account of common equity."
"ERISA Event means (a)a Reportable Event described in section 4043 of ERISA and the regulations issued thereunder, (b)the withdrawal of the Borrower, a Subsidiary or any ERISA Affiliate from a Plan during a plan year in which it was a substantial employer as defined in section 4001(a)(2) of ERISA, (c)the filing of a notice of intent to terminate a Plan or the treatment of a Plan amendment as a termination under section 4041 of ERISA, (d)the institution of proceedings to terminate a Plan by the PBGC, (e)receipt of a notice of withdrawal liability pursuant to section 4202 of ERISA or (f)any other event or condition which could reasonably be expected to constitute grounds under section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan."
"Excepted Liens means: (a)Liens for Taxes, assessments or other governmental charges or levies which are not delinquent or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP; (b)Liens in connection with workers compensation, unemployment insurance or other social security, old age pension or public liability obligations which are not delinquent or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP; (c)statutory landlords liens, operators, interest owners, vendors, carriers, warehousemens, repairmens, mechanics, suppliers, workers, materialmens, construction or other like Liens, in each case, arising by operation of law in the ordinary course of business or incident to the operation and maintenance of Properties each of which is in respect of obligations that are not delinquent or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP; (d)Liens arising solely by virtue of customary deposit account agreements with the creditor depositary institution or any statutory or common law provision relating to bankers liens, rights of set-off or similar rights and remedies and burdening only deposit accounts or other funds maintained with a creditor depository institution, provided that no such deposit account is a dedicated cash collateral account or is subject to restrictions against access by the depositor in excess of those set forth by regulations promulgated by the Board and no such deposit account is intended by the Borrower or any of its Subsidiaries to provide collateral to the depository institution or any other Person (other than the Secured Parties pursuant to the Security Instruments); (e) zoning and land use requirements, easements, restrictions, servitudes, permits, conditions, covenants, exceptions or reservations affecting, and minor irregularities or"
"and effective as of May1, 2015, between Southcross NGL Pipeline Ltd. and Frio LaSalle Pipeline, LP, (b)that certain Gas Gathering and Treating Agreement to be dated on or about the First Amendment Effective Date and effective as of May1, 2015, between FL Rich Gas Services, LP and Frio LaSalle Pipeline, LP, and (c)that certain Master Compression Services Agreement to be dated on or about the First Amendment Effective Date and effective as of May1, 2015, between FL Rich Gas Services, LP and Frio LaSalle Pipeline, L.P."
"Foreign Lender means any Lender that is organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes. For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction."
"Hazardous Material means any substance regulated or as to which liability might arise under any applicable Environmental Law including: (a)any chemical, compound, material, product, byproduct, substance or waste defined as or included in the definition or meaning of hazardous substance, hazardous material, hazardous waste, solid waste, toxic waste, extremely hazardous substance, toxic substance, contaminant, pollutant, or words of similar meaning or import found in any applicable Environmental Law; (b)Hydrocarbons, petroleum products, petroleum substances, natural gas, oil, oil and gas waste, crude oil, and any components, fractions, or derivatives thereof; and (c)radioactive materials, explosives, asbestos or asbestos containing materials, polychlorinated biphenyls, radon, infectious or medical wastes."
"commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions (including any agreement, contract or transaction that constitutes a swap within the meaning of section 1a(47) of the Commodity Exchange Act); 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 Borrower or the Subsidiaries shall be a Hedging Agreement."
"LC Exposure means, at any time, the sum of (a)the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b)the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time."
"Lien means any interest in Property securing an obligation owed to, or a claim by, a Person other than the owner of the Property, whether such interest is based on the common law, statute or contract, and whether such obligation or claim is fixed or contingent, and including but not limited to the lien or security interest arising from a mortgage, deed of trust, encumbrance, pledge, security agreement, conditional sale or trust receipt or a lease, consignment or bailment for security purposes. The term Lien shall include easements, restrictions, servitudes, permits, conditions, covenants, exceptions or reservations. For the purposes of this Agreement, the Borrower and its Subsidiaries shall be deemed to be the owner of any Property which they have acquired or hold subject to a conditional sale agreement, or leases under a financing lease or other arrangement pursuant to which title to the Property has been retained by or vested in some other Person in a transaction intended to create a financing."
"Material Adverse Effect means a material adverse change in, or material adverse effect on, or a material impairment of (a)the business, operations, Property or condition (financial or otherwise) of the Borrower and the Subsidiaries taken as a whole, (b)the ability of any Loan Party to perform any of its obligations under any Loan Document, (c)the validity or enforceability of any Loan Document or (d)the rights and remedies of or benefits available to the Administrative Agent, any other Agent, any Issuing Bank or any Lender under any Loan Document."
"Net Cash Proceeds means, for any Recovery Event requiring a repayment of Loans pursuant to Section 3.04(b)(iii), the gross cash proceeds (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as and when received) from such Recovery Event, net of attorneys fees, accountants fees, amounts required to be applied to the repayment of Indebtedness secured by a Lien expressly permitted hereunder on any asset which is the subject of such Recovery Event (other than any Lien pursuant to a Security Instrument) and other customary fees and expenses actually incurred in connection therewith, and net of taxes paid or reasonably estimated to be payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements)."
"Net Sale Proceeds means for any sale or other disposition of Property pursuant to an Asset Sale, the gross cash proceeds (including any cash received by way of deferred payment pursuant to a promissory note, receivable or otherwise, but only as and when received) received from such Asset Sale, net of (a)reasonable transaction costs (including, without limitation, any underwriting, brokerage or other customary selling commissions, reasonable legal, advisory and other fees and expenses (including title and recording expenses), associated therewith and sales, VAT and transfer taxes arising therefrom), (b) the amount of such gross cash proceeds required to be used to permanently repay any Indebtedness (other than the Secured Obligations) which is permitted hereunder and which is secured by the respective Property which was sold or"
"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 US jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (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 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."
"Payment in Full means, the time at which (a)no Lender or Issuing Bank shall have (i)any Commitments, Loan, LC Disbursements or other amounts payable under the Loan Documents unpaid, unsatisfied or outstanding (other than in respect of contingent obligations, indemnities and expenses related thereto that are not then payable or in existence) and (ii)any Letters of Credit outstanding that (A)have not been cash collateralized in a manner reasonably satisfactory or (B)have not had other arrangements made with respect to them that are reasonably satisfactory, in each case, to the applicable Issuing Bank, (b)the Commitments have been terminated, and (c)all Secured Hedging Agreements have been terminated or novated and each Secured Hedging Agreement Counterparty has received payment of all amounts, if any, payable to it in connection with such termination or novation."
"Prime Rate means the rate of interest per annum publicly announced from time to time by the Administrative Agent as its prime rate in effect at its principal office in San Francisco, California; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective. Such rate is set by the Administrative Agent as a general reference rate of interest, taking into account such factors as the Administrative Agent may deem appropriate; it being understood that many of the Administrative Agents commercial or other loans are priced in relation to such rate, that it is not necessarily the lowest or best rate actually charged to any customer and that the Administrative Agent may make various commercial or other loans at rates of interest having no relationship to such rate."
"Rolling Period means, with respect to the last day of any fiscal quarter, (a)solely for the purpose of determining Annualized Rich Gas EBITDA and Unadjusted Rich Gas EBITDA with respect to each Rolling Period 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, the applicable Base Period ending on such date, (b)solely with respect to Section 9.01(d), (x) the Rolling Period for the fiscal quarter ending December31, 2016 shall be such quarter, (y)the Rolling Period for the fiscal quarter ending March31, 2017 shall be the period of two (2)consecutive fiscal quarters ending on the last day of such fiscal quarter and (z)the Rolling Period for the fiscal quarter ending June30, 2017 shall be the period of three (3)consecutive fiscal quarters ending on the last day of such fiscal quarter and (c)for all other purposes, the period of four (4)consecutive fiscal quarters ending on the last day of such fiscal quarter."
"liabilities) of such Person as of such date, (b)as of such date, such Person is able to pay all liabilities of such Person as such liabilities mature, and (c)as of such date, such Person does not have unreasonably small capital given the nature of its business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in 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."
"Specified Representations means the representations and warranties set forth in the Loan Documents relating to corporate existence of the Loan Parties; power and authority, due authorization, execution and delivery and enforceability, in each case, relating to the Loan Parties entering into and performance of the Loan Documents; no conflicts with or consents under the Loan Parties organizational documents; solvency as of the Effective Date (after giving effect to the Transactions) of the Borrower and its Consolidated Subsidiaries on a consolidated basis; use of proceeds; Federal Reserve margin regulations; the Investment Company Act; the PATRIOT Act; OFAC; and the FCPA; and creation, validity and, subject to the last paragraph of Section6.01 and Section8.20, perfection of security interests in the Collateral."
"Transactions means (a)with respect to the Borrower, the execution, delivery and performance by the Borrower of this Agreement and each other Loan Document to which it is a party, the borrowing of Loans, the use of the proceeds thereof (including, without limitation, to refinance the Existing Indebtedness), the issuance of Letters of Credit hereunder, and the grant of Liens by the Borrower on Collateral pursuant to the Security Instruments, and (b)with respect to each Guarantor, the execution, delivery and performance by such Guarantor of each Loan Document to which it is a party, the guaranteeing of the Secured Obligations and the other obligations under the Guaranty and Collateral Agreement by such Guarantor and such Guarantors grant of the security interests and provision of Collateral under the Security Instruments, and the grant of Liens by such Guarantor on Collateral pursuant to the Security Instruments."
"Unadjusted Rich Gas EBITDA means, with respect to any Rolling Period 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, the portion of Consolidated Unadjusted EBITDA for such Rolling Period attributable solely to the Frio Assets."
"Working Capital means, for the Borrower and its Consolidated Subsidiaries calculated in accordance with GAAP, as of any date of determination, the excess of (a)current assets (other than cash and Cash Equivalents) over (b)current liabilities, excluding, without duplication, (i)the current portion of any long-term Indebtedness, (ii)outstanding Loans and (iii)the current portion of accrued Consolidated Interest Expense."
"(a)Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all determinations with respect to accounting matters hereunder shall be made, and all financial statements and certificates and reports as to financial matters required to be furnished to the Administrative Agent or the Lenders hereunder shall be prepared, in accordance with GAAP, applied on a basis consistent with the Financial Statements except for changes in which the Borrowers independent certified public accountants concur and which are disclosed to the Administrative Agent on the next date on which Financial Statements are required to be delivered to the Lenders pursuant to Section 8.01(a); provided that unless the Borrower and the Required Lenders shall otherwise agree in writing, no such change shall modify or affect the manner in which compliance with the covenants contained herein is computed such that all such computations shall be conducted utilizing financial information presented consistently with prior periods."
"(b)Notwithstanding GAAP or anything in this Agreement to the contrary, for the purposes of calculating the ratios that are the subject of Section9.01 hereof and the components of each of them, all Excluded Subsidiaries (including the assets, liabilities, income, losses, cash flows and elements thereof) shall be excluded, except that any dividends or distributions actually paid in cash by any Person to the Borrower or any other Loan Party shall be deemed to be income to the Borrower or such other Loan Party, as applicable, when received by it whether or not constituting income in accordance with GAAP."
"(c)For purposes of determining hereunder whether the Borrower is in pro forma compliance with its applicable financial covenants contained in Section9.01 hereof after the occurrence of a certain event (a Subject Transaction), in all cases such calculation shall be based on the financial information for the most recent Rolling Period for which financial information has been delivered to the Administrative Agent pursuant to Sections 8.01(a) or (b), and calculated as if such Subject Transaction had occurred on the first day of such applicable period. For the purposes of the definition of Permitted Note Indebtedness, the covenants (and levels thereof) that must be complied with are those set forth in Sections9.01(a)(ii), 9.01(b), 9.01(c) and 9.01(d). For all other purposes hereunder, the covenants (and levels thereof) that must be complied with are those that were in effect as of the last day of the fiscal quarter most recently ended prior to such Subject Transaction."
"(b)Reallocation of Loans. After giving effect to this Agreement and any Loans made on the Effective Date, (i)each Lender who holds Loans in an aggregate amount less than its Applicable Percentage (after giving effect to this Agreement) of all Loans shall advance new Loans that shall be disbursed to the Administrative Agent and used to repay Loans outstanding to each Lender who holds Loans in an aggregate amount greater than its Applicable Percentage of Loans, (ii)each Lenders participation in each Letter of Credit, if any, shall be automatically adjusted to equal its Applicable Percentage (after giving effect to this Agreement), and (iii)such other adjustments shall be made as the Administrative Agent shall specify so that each Lenders Revolving Credit Exposure equals its Applicable Percentage (after giving effect to this Agreement) of the aggregate Loans of all Lenders. For the avoidance of doubt, payments effected between or among the Lenders pursuant to this Section 2.01(b) shall not be subject to the provisions of Sections 3.04(a) and (b)."
(a)Borrowings; Several Obligations. Each Loan shall be made as part of a Borrowing consisting of Loans made by the Lenders ratably in accordance with their respective Commitments. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments are several and no Lender shall be responsible for any other Lenders failure to make Loans as required.
"(d)Notes. The Loans made by each Lender, if requested by such Lender, shall be evidenced by a single promissory note of the Borrower in substantially the form of Exhibit A, dated, in the case of (i)any Lender party hereto as of the date of this Agreement, as of the date of this Agreement, or (ii)any Lender that becomes a party hereto pursuant to an Assignment and Assumption, as of the effective date of the Assignment and Assumption or amendment, payable to such Lender in a principal amount equal to its Commitment, and otherwise duly completed. In the event that any Lenders Commitment increases or decreases for any reason (whether pursuant to Section2.06, Section 12.04(b) or otherwise), if requested by such Lender, the Borrower shall deliver or cause to be delivered on the effective date of such increase or decrease, a new Note payable to such Lender in a principal amount equal to its Commitment, as applicable, after giving effect to such increase or decrease, and otherwise duly completed. The date, amount, Type, interest rate and, if applicable, Interest Period of each Loan made by each Lender, and all payments made on account of the principal thereof, shall be recorded by such Lender on its books for its applicable Note, and, prior to any transfer, may be endorsed by such Lender on a schedule attached to such Note or any continuation thereof or on any separate record maintained by such Lender. Failure to make any such notation or to attach a schedule shall not affect any Lenders or the Borrowers rights or obligations in respect of such Loans or affect the validity of such transfer by any Lender of its Note."
"(a)Conversion and Continuance. Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such"
"(i)the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to Sections 2.04(c)(ii) and (iii)shall be specified for each resulting Borrowing);"
"No Issuing Bank will be required to: (A)issue any Letter of Credit if (1)any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, or any law applicable to such Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit, or request that such Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which such Issuing Bank in good faith deems material to it, (2)the issuance of such Letter of Credit would violate one or more policies of such Issuing Bank applicable to letters of credit generally, (3)except as otherwise agreed by the Administrative Agent and such Issuing Bank, such Letter of Credit is in an initial stated amount less than $10,000, (4) such Letter of Credit is to be denominated in a currency other than Dollars, or (5)such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or (B)amend or extend any Letter of Credit if such Issuing Bank would not be required at such time to issue the Letter of Credit in its amended form under the terms hereof or if the beneficiary of such Letter of Credit does not accept the proposed amendment thereto. Any request for the issuance of a Letter of Credit that is made at any time that there is a Defaulting Lender shall be subject to Section 4.04(d)."
"hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the applicable Issuing Bank, such Lenders Applicable Percentage of each LC Disbursement made by the any Issuing Bank and not reimbursed by the Borrower on the date due as provided in Section 2.07(e), or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Lender acknowledges and agrees that its obligation to acquire participations pursuant to this Section 2.07(d) in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or the reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever."
"(f)Obligations Absolute. The Borrowers obligation to reimburse LC Disbursements as provided in Section 2.07(e) shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i)any lack of validity or enforceability of any Letter of Credit, any Letter of Credit Agreement or this Agreement, or any term or provision"
"(k)Applicability of ISP. Unless otherwise expressly agreed by any Issuing Bank and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), the rules of the ISP shall apply to each Letter of Credit. Notwithstanding the foregoing, no Issuing Bank shall be responsible to the Borrower for, and such Issuing Banks rights and remedies against the Borrower shall not be impaired by, any action or inaction of such Issuing Bank required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the law or any order of a jurisdiction where such Issuing Bank or the beneficiary is located, the practice stated in the ISP or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and TradeInternational Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law& Practice, whether or not any Letter of Credit chooses such law or practice."
"(i)If, after giving effect to any termination or reduction of the Commitments pursuant to Section 2.06(b), the total Revolving Credit Exposures exceeds the total Commitments, then the Borrower shall (A)prepay the Borrowings on the date of such termination or reduction in an aggregate principal amount equal to such excess, and (B)if any excess remains after prepaying all of the Borrowings as a result of an LC Exposure, pay to the Administrative Agent on behalf of the Lenders an amount equal to such excess to be held as cash collateral as provided in Section 2.07(j)."
"and the related Financial Officers compliance certificate for such fiscal quarter are required to be delivered pursuant to Section8.01(b) and Section8.01(d), if the Borrowers pro forma Consolidated Total Leverage Ratio exceeds 5.00 to 1.00 as of the end of such fiscal quarter, the Borrower shall make a mandatory repayment of the Borrowings in the manner set forth in Section 3.04(b)(viii) in an amount equal to (A)fifty percent (50%) of Excess Cash Flow, if any, for the six month period then ended as of such fiscal quarter minus (B)the aggregate amount of all optional prepayments of the Borrowings during such six month period, solely to the extent that such prepayments are (i)accompanied by permanent optional reductions in the Commitments and (ii)not funded with the incurrence of any Indebtedness, any Equity Issuance Proceeds, any casualty proceeds, any condemnation proceeds or any other proceeds that would not be included in Consolidated EBITDA."
"(a)Payments by the Borrower. The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section5.01, Section5.02, Section5.03 or otherwise) prior to 11:00 a.m., Central time, on the date when due, in immediately available funds, without defense, deduction, recoupment, set-off or counterclaim. Fees, once paid, shall be fully earned and shall not be refundable under any circumstances. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices specified in Section12.01, except payments to be made directly to the applicable Issuing Bank as expressly provided herein and except that payments pursuant to Section5.01, Section5.02, Section5.03 and Section12.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in dollars (other than any interest expense that the Borrower is expressly allowed to pay in kind as provided herein)."
"(b)Application of Insufficient Payments. If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i)first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii)second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties."
"(b)the Commitment and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section12.02), provided that any waiver, amendment or modification requiring the consent of all Lenders or each adversely affected Lender which affects such Defaulting Lender differently than all other Lenders or all other adversely affected Lenders, as the case may be, shall require the consent of such Defaulting Lender;"
"(ii)if the reallocation described in clause (i)above cannot, or can only partially, be effected, the Borrower shall within one (1)Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lenders LC Exposure (after giving effect to any partial reallocation pursuant to clause (i)above) in accordance with the procedures set forth in Section 2.07(j) for so long as such LC Exposure is outstanding;"
"(vi)Subject to Section12.21, 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; and"
"(c)Certificates for Reimbursement. A certificate of a Lender or any Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or such Issuing Bank or its holding company, as the case may be, as specified in Sections 5.01(a) or (b)and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender or such Issuing Bank, as the case may be, the amount shown as due on any such certificate within ten (10)days after receipt thereof."
"(d)Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i)any Indemnified Taxes attributable to such Lender (but only to the extent that Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lenders failure to comply with the provisions of Section 12.04(d)(ii) 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 the 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 the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the 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 the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (d)."
"(B)any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Withholding 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 request of the Withholding Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:"
"(h)FATCA. If a payment made to a Lender under this Agreement would be subject to United States federal withholding tax imposed by FATCA if such Lender fails 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 Withholding Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Withholding 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 Withholding Agent as may be necessary for the"
"(s)The Administrative Agent shall have received a certificate of a Responsible Officer certifying (i)that attached to such certificate is a true, correct, complete and fully-executed copy of the Contribution Agreement (together with all amendments thereto, if any), and (ii)that the conditions contained in clauses (r), (t), and (u)of this Section6.01 have been satisfied."
"(e)The Administrative Agent shall have received a certificate from a Financial Officer certifying that on such date, (i)no account receivable owing from Southcross Holdings to the Borrower has been unpaid for more than 30 days and (ii)the Borrower is in pro forma compliance (as set forth in Section 1.05(c)) with the covenants set forth in Section9.01."
"Section7.02Authority; Enforceability. The Transactions are within each Loan Partys corporate powers and have been duly authorized by all necessary corporate and, if required, stockholder action (including, without limitation, any action required to be taken by any class of directors of the Borrower or any other Person, whether interested or disinterested, in order to ensure the due authorization of the Transactions). Each Loan Document to which a Loan Party is a party has been duly executed and delivered by such Loan Party and constitutes a legal, valid and binding obligation of such Loan Party, as applicable, 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."
"Section7.03Approvals; No Conflicts. The Transactions (a)do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority or any other third Person (including shareholders or any class of directors, whether interested or disinterested, of the Borrower or any other Person), nor is any such consent, approval, registration, filing or other action necessary for the validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby, except such as have been obtained or made and are in full force and effect other than (i)the recording and filing of"
"(a)The Borrower has heretofore furnished to the Lenders (i)its consolidated balance sheet and statements of income stockholders equity and cash flows (A)as of and for the fiscal year ended December31, 2013, reported on by Deloitte& Touche LLP, independent public accountants, and (B)as of and for the fiscal quarter and the portion of the fiscal year ended June30, 2014, certified by its chief financial officer (or the chief financial officer of the General Partner) (collectively, the Borrower Financial Statements), (ii)(A) an audited consolidated balance sheet of the Frio Group and the Related Affiliates as of December31, 2013 and December31, 2012 and the related audited consolidated statements of income and cash flows for the fiscal years then ended, and (B)the Frio Groups (together with certain of its Affiliates) consolidated unaudited balance sheet as of March31, 2014 and the related consolidated unaudited statement of income and cash flows for the three-month period then ended (collectively, the Frio Financial Statements), and (iii)the Borrowers pro forma summary financial statements, Consolidated EBITDA and other operating data in form and substance satisfactory to the Administrative Agent, in each case after giving effect to the Transactions as if they had occurred on such date in the case of any balance sheet and as of the beginning of all of the periods presented in the case of Consolidated EBITDA and other operating data (collectively, the Pro Forma Financial Statements and, together with the Borrower Financial Statements and the Frio Financial Statements, the Financial Statements). The Borrower Financial Statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower and its Consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP. The Frio Financial Statements fairly present in all material respects the financial condition, results of operations and cash flows of the Frio Group and the Related Affiliates on a consolidated basis as of the respective dates thereof and for the periods therein referred to, all in accordance with GAAP consistently applied throughout the periods involved. The Frio Financial Statements have been prepared from and are in accordance with the accounting records of the Frio Group and the Related Affiliates (and such records are true, correct and accurately reflect in all material respects all transactions engaged in by the members of the Frio Group). Since January1, 2012, except as set forth in the Frio Financial Statements, there has been no material change of the accounting (tax or otherwise)"
"(h)the Borrower has provided, or has caused its Subsidiaries to provide, to the Lenders complete and correct copies of all environmental site assessment reports, investigations, studies, analyses, and correspondence on environmental matters (including matters relating to any alleged non- compliance with or liability under Environmental Laws) that are in any of the Borrowers or the Subsidiaries possession or control and relating to their respective Properties or operations thereon."
"(a)Each of the Borrower and each Subsidiary is in compliance with all Governmental Requirements applicable to it or its Property and all agreements and other instruments binding upon it or its Property, and possesses all licenses, permits, franchises, exemptions, approvals and other governmental authorizations necessary for the ownership of its Property and the conduct of its business, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect."
"(c)Valid Liens. Each Security Instrument delivered pursuant to Section6.01, Section8.12, Section8.14 or Section8.20, upon execution and delivery thereof, is effective to create in favor of the Administrative Agent, for the benefit of the Secured Parties, legal, valid and enforceable Liens on, and security interests in, all of the Collateral thereunder, and (i)when financing statements and other filings in appropriate form are filed or recorded in the appropriate offices as are required by the Guaranty and Collateral Agreement and Schedule7.19, and (ii)"
"Section7.25Employee Matters. As of the Effective Date, (a)neither the Borrower nor any Subsidiary, nor any of their respective employees, is subject to any collective bargaining agreement, (b)no petition for certification or union election is pending or, to the knowledge of the Borrower or any Subsidiary, contemplated with respect to the employees thereof and no union or collective bargaining unit has sought such certification or recognition with respect to the employees of the Borrower or any Subsidiary, and (c)there are no strikes, slowdowns, work stoppages or controversies pending or, to the knowledge of the Borrower or any Subsidiary after due inquiry, threatened between the Borrower or any Subsidiary and its respective employees."
"Section7.27Foreign Corrupt Practices. No Loan Party, and, to the knowledge of the Borrower, no director, officer, agent, employee or Affiliate of the Borrower or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a material violation by such Persons of the FCPA, including without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any foreign official (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA; and, the Loan Parties and, to the knowledge of the Borrower, their Affiliates have conducted their business in material compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith."
"previous fiscal year, all reported on by Deloitte& Touche LLP or other independent public accountants of recognized national standing (without a going concern or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied."
"(b)Quarterly Financial Statements. As soon as available, but in any event in accordance with then applicable law and not later than the date on which quarterly financial statements are required to be delivered to the SEC, commencing with the fiscal quarter ending June30, 2014, its consolidated balance sheet and related statements of operations, stockholders equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, along with a reconciliation of the income statement and the Capital Expenditures set forth on the cash flow against the projections for such fiscal quarter and managements discussion and analysis in form and substance reasonably satisfactory to the Administrative Agent."
"(c)Financial Projections. Concurrently with any delivery of financial statements under Section 8.01(a) and no later than April 1st of each calendar year, projections for the Borrower and its Consolidated Subsidiaries for each fiscal year of the Borrower through the end of the fiscal year in which the Maturity Date occurs, and which such projections shall include (A)volumes and pricing assumptions and (B)itemized budget forecasts set forth on a quarterly basis in form and substance reasonably satisfactory to the Administrative Agent for each of the four fiscal quarters of the Borrower ending during the first such fiscal year reflected in such projections."
"(q)13-Week Cash Flows. As soon as available, but in any event not later than (x) 20 days after the month ending December31, 2016 and (y) 10 days after the end of each calendar month thereafter, starting with the month ending December31, 2016, a 13-week cash flow forecast, subject to any month- end reconciliation adjustments, in form and substance reasonably acceptable to the Administrative Agent, setting forth all sources and uses of cash and beginning and ending cash balances, along with a variance report reconciling the prior months cash flow forecast to the actual sources and uses of cash for the prior month, along with a line-by-line reconciliation and explanation of variances that are more than 20% above or below per week on a line item basis when compared to the prior months forecast."
"(d)any threatened action, investigation or inquiry by any Governmental Authority or any threatened demand or lawsuit by any Person against the Borrower or its Subsidiaries or their Properties of which the Borrower has knowledge in connection with any Environmental Laws if the Borrower could reasonably anticipate that such action will result in liability (whether individually or in the aggregate) in excess of $7,500,000, not fully covered by insurance, subject to normal deductibles; and"
"Section8.04Payment of Tax Obligations. The Borrower will, and will cause each Subsidiary to, pay its 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, (b)the Borrower or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (c)the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect or result in the seizure or levy of any Property of the Borrower or any Subsidiary."
"Section8.05Performance of Obligations under Loan Documents. The Borrower will repay the Loans according to the reading, tenor and effect thereof, and the Borrower will, and will cause each Subsidiary to, do and perform every act and discharge all of the obligations to be performed and discharged by them under the Loan Documents, including, without limitation, this Agreement, at or within the time or times and in the manner specified."
"(c)promptly perform or make reasonable and customary efforts to cause to be performed, in accordance with industry standards, the obligations required by each and all of the assignments, deeds, leases, sub-leases, contracts and agreements affecting its interests in its Properties, except, in each case, where the failure to comply could not reasonably be expected to have a Material Adverse Effect; and"
"Section8.12Further Assurances. The Borrower at its sole expense will, and will cause each Subsidiary to, promptly execute and deliver to the Administrative Agent all such other documents, agreements and instruments reasonably requested by the Administrative Agent to comply with, cure any defects or accomplish the conditions precedent, covenants and agreements of the Borrower or any Subsidiary, as the case may be, in the Loan Documents, including the Notes, or to further evidence and more fully describe the Collateral intended as security for the Secured Obligations, or to correct any omissions in this Agreement or the Security Instruments, or to state more fully the obligations secured therein, or to perfect, protect or preserve any Liens created pursuant to this Agreement or any of the Security Instruments or the priority thereof, or to make any recordings, file any notices or obtain any consents, all as may be reasonably necessary or appropriate, in the sole discretion of the Administrative Agent, in connection therewith."
"(a)In the event that the Borrower or any Subsidiary acquires or forms a subsidiary that is not designated as an Excluded Subsidiary in accordance with Section8.15, or if the Borrower or any other Subsidiary causes any Subsidiary to guarantee the Term Loan Facility, the Borrower or its Subsidiary shall promptly, but in any event within 30 days (or such later date as the Administrative Agent may agree in its sole discretion), cause such Subsidiary to guarantee the Secured Obligations pursuant to the Guaranty and Collateral Agreement. In connection with any guaranty, the Borrower shall, or shall cause such Subsidiary to, (i)execute and deliver to the"
"(d)The Borrower agrees that it will not, and will not permit any Guarantor to, grant a Lien on any Property to secure the Term Loan Facility without contemporaneously granting to the Administrative Agent, as security for the Secured Obligations, a first priority perfected Lien on the same Property pursuant to Security Instruments in form and substance reasonably satisfactory to the Administrative Agent."
"Section8.17ERISA Compliance. The Borrower will promptly furnish and will cause the Subsidiaries and any ERISA Affiliate to promptly furnish to the Administrative Agent (a)promptly after the filing thereof by the Borrower or any Subsidiary with the United States Secretary of Labor or the Internal Revenue Service (or if filed by a third party, promptly after the Borrower or a Subsidiary becomes aware of such filing), copies of each annual and other report with respect to each Plan or any trust created thereunder, and (b)promptly upon becoming aware of the occurrence of any prohibited transaction, as described in section406 of ERISA or in"
"Section8.20Post-Closing Obligations. The Borrower shall deliver, or cause to be delivered, as the case may be, each of the items set forth on Schedule 8.20, in each case on or prior to the date specified in such Schedule for such item or such later date as the Administrative Agent may determine and agree to in writing in its sole discretion."
"(b)Consolidated Senior Secured Leverage Ratio. From and after the incurrence by the Borrower and/or any of its Subsidiaries of Permitted Notes Indebtedness, the Borrower will not, as of the last day of any fiscal quarter commencing with the fiscal quarter ending on March31, 2019, permit its Consolidated Senior Secured Leverage Ratio to exceed 3.50 to 1.00."
"(c)Consolidated Interest Coverage Ratio. The Borrower will not permit its Consolidated Interest Coverage Ratio to be less than (i) 1.50 to 1.00 as of the last day of any fiscal quarter commencing with the fiscal quarter ending on September30, 2014 through the fiscal quarter ending December31, 2018, and (ii)with respect to any fiscal quarter thereafter, 2.50 to 1.00. For the avoidance of doubt, at any time after the Fifth Amendment Effective Date, each calculation of the Consolidated Interest Coverage Ratio shall be made without regard to any Equity Cure Contribution made prior to the Fifth Amendment Effective Date."
"(l)Indebtedness consisting of Term Loans incurred under the Term Loan Facility, provided that such Indebtedness (i)is subject at all times to the Intercreditor Agreement and (ii)does not exceed a maximum principal amount equal $450,000,000 at any time that the Borrowers pro forma Consolidated Total Leverage Ratio exceeds 5.00 to 1.00, and at any other time, $670,000,000."
"(d)the Borrower may declare and pay quarterly cash distributions of Available Cash to the holders of any Equity Interests in the Borrower (other than the SXE Subordinated Units) in accordance with the Borrowers Organization Documents; provided, that no Default exists at the time of or after giving effect to such Restricted Payment;"
"(n)Investments in Excluded Subsidiaries, partnerships, joint ventures or any other Person in a similar business to the Loan Parties; provided that (i)no Default exists or results therefrom, (ii)after giving effect to such Investment (and any debt incurred in connection therewith), (A) the Borrowers Excess Cash Liquidity is not less than $20,000,000 and (B)the Borrower is in pro forma compliance (as set forth in Section 1.05(c)) with all applicable covenants set forth in Section9.01 hereof;"
"(a)engage in, or permit any ERISA Affiliate to engage in, any transaction in connection with which the Borrower, a Subsidiary or any ERISA Affiliate could be subjected to either a civil penalty assessed pursuant to subsections (c), (i), (l) or (m)of section 502 of ERISA or a tax imposed by Chapter 43 of Subtitle D of the Code;"
"(h)An involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i)liquidation, reorganization or other relief in respect of the Borrower or any Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii)the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60)days or an order or decree approving or ordering any of the foregoing shall be entered."
"(iv)fourth, pro rata to payment of (A)principal outstanding on the Loans, (B)Secured Obligations referred to in clause (b)of the definition of Secured Obligations owing to a Secured Hedging Agreement Counterparty, (C)Secured Obligations referred to in clause (c)of the definition of Secured Obligations owing to a Bank Products Provider, (D)any other Secured Obligations and (E)amounts to serve as cash collateral to be held by the Administrative Agent to secure the LC Exposure; and"
"Section11.02Rights as a Lender. The Person 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 the term Lender or Lenders shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative 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 Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders."
"(iii)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 Borrower 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."
"Section11.04Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, 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 not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may deem and treat the payee of any Note as the holder thereof for all purposes hereof unless and until a written notice of the assignment or transfer thereof permitted hereunder is filed with the Administrative Agent."
"(b)INDEMNIFICATION BY THE BORROWER. THE BORROWER SHALL INDEMNIFY EACH AGENT (AND ANY SUB-AGENT THEREOF), THE JOINT ARRANGERS, ANY ISSUING BANK AND EACH LENDER, AND EACH RELATED PARTY OF ANY OF THE FOREGOING PERSONS (EACH SUCH PERSON BEING CALLED AN INDEMNITEE) AGAINST, AND DEFEND AND HOLD EACH INDEMNITEE HARMLESS FROM, ANY AND ALL LOSSES, CLAIMS, DAMAGES, PENALTIES, LIABILITIES AND RELATED EXPENSES, INCLUDING THE FEES, CHARGES AND DISBURSEMENTS OF ANY COUNSEL FOR ANY INDEMNITEE, INCURRED BY ANY INDEMNITEE OR ASSERTED AGAINST ANY INDEMNITEE BY A THIRD PARTY OR BY THE BORROWER OR ANY SUBSIDIARY ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF (i)THE EXECUTION OR DELIVERY OF THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY OR THEREBY, THE PERFORMANCE BY THE PARTIES HERETO OR THE PARTIES TO ANY OTHER LOAN DOCUMENT OF THEIR RESPECTIVE OBLIGATIONS HEREUNDER OR THEREUNDER OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, (ii)THE FAILURE OF THE BORROWER OR ANY SUBSIDIARY TO COMPLY WITH THE TERMS OF ANY LOAN DOCUMENT, INCLUDING THIS AGREEMENT, OR WITH ANY GOVERNMENTAL REQUIREMENT, (iii)ANY INACCURACY OF ANY REPRESENTATION OR ANY BREACH OF ANY WARRANTY OR COVENANT OF THE BORROWER OR ANY GUARANTOR SET FORTH IN ANY OF THE LOAN DOCUMENTS OR ANY INSTRUMENTS, DOCUMENTS OR CERTIFICATIONS DELIVERED IN CONNECTION THEREWITH, (iv)ANY LOAN OR LETTER OF CREDIT OR THE USE OF THE PROCEEDS THEREFROM, INCLUDING, WITHOUT LIMITATION, (A)ANY REFUSAL BY ANY ISSUING BANK 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, OR (B)THE PAYMENT OF A DRAWING UNDER ANY LETTER OF CREDIT NOTWITHSTANDING THE NON-COMPLIANCE, NON-DELIVERY OR OTHER IMPROPER PRESENTATION OF THE DOCUMENTS PRESENTED IN CONNECTION THEREWITH, (v)ANY OTHER ASPECT OF THE LOAN DOCUMENTS, (vi)THE OPERATIONS OF THE BUSINESS OF THE BORROWER AND ITS SUBSIDIARIES BY THE BORROWER AND ITS SUBSIDIARIES, (vii)ANY ASSERTION THAT THE LENDERS WERE NOT ENTITLED TO RECEIVE THE PROCEEDS RECEIVED"
"PURSUANT TO THE SECURITY INSTRUMENTS, (viii)ANY ENVIRONMENTAL LAW APPLICABLE TO THE BORROWER OR ANY SUBSIDIARY OR ANY OF THEIR PROPERTIES OR OPERATIONS, INCLUDING, THE PRESENCE, GENERATION, STORAGE, RELEASE, THREATENED RELEASE, USE, TRANSPORT, DISPOSAL, ARRANGEMENT OF DISPOSAL OR TREATMENT OF HAZARDOUS MATERIALS ON OR AT ANY OF THEIR PROPERTIES, (ix)THE BREACH OR NON-COMPLIANCE BY THE BORROWER OR ANY SUBSIDIARY WITH ANY ENVIRONMENTAL LAW APPLICABLE TO THE BORROWER OR ANY SUBSIDIARY, (x)THE PAST OWNERSHIP BY THE BORROWER OR ANY SUBSIDIARY OF ANY OF THEIR PROPERTIES OR PAST ACTIVITY ON ANY OF THEIR PROPERTIES WHICH, THOUGH LAWFUL AND FULLY PERMISSIBLE AT THE TIME, COULD RESULT IN PRESENT LIABILITY, (xi)THE PRESENCE, USE, RELEASE, STORAGE, TREATMENT, DISPOSAL, GENERATION, THREATENED RELEASE, TRANSPORT, ARRANGEMENT FOR TRANSPORT OR ARRANGEMENT FOR DISPOSAL OF HAZARDOUS MATERIALS ON OR AT ANY OF THE PROPERTIES OWNED OR OPERATED BY THE BORROWER OR ANY SUBSIDIARY OR ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS MATERIALS ON OR FROM ANY PROPERTY OWNED OR OPERATED BY THE BORROWER OR ANY OF ITS SUBSIDIARIES, (xii)ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO THE BORROWER OR ANY OF ITS SUBSIDIARIES, OR (xiii)ANY OTHER ENVIRONMENTAL, HEALTH OR SAFETY CONDITION IN CONNECTION WITH THE LOAN DOCUMENTS, OR (xiv)ANY ACTUAL OR PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY, WHETHER BROUGHT BY A THIRD PARTY OR BY THE BORROWER OR ANY SUBSIDIARY, AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO, AND SUCH INDEMNITY SHALL EXTEND TO EACH INDEMNITEE NOTWITHSTANDING THE SOLE OR CONCURRENT NEGLIGENCE OF EVERY KIND OR CHARACTER WHATSOEVER, WHETHER ACTIVE OR PASSIVE, WHETHER AN AFFIRMATIVE ACT OR AN OMISSION, INCLUDING WITHOUT LIMITATION, ALL TYPES OF NEGLIGENT CONDUCT IDENTIFIED IN THE RESTATEMENT (SECOND) OF TORTS OF ONE OR MORE OF THE INDEMNITEES OR BY REASON OF STRICT LIABILITY IMPOSED WITHOUT FAULT ON ANY ONE OR MORE OF THE INDEMNITEES; 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 COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE, (y)RESULT FROM A CLAIM BROUGHT BY THE BORROWER OR ANY SUBSIDIARY AGAINST ANY INDEMNITEE FOR BREACH IN BAD FAITH OF SUCH INDEMNITEES OBLIGATIONS HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT, IF THE BORROWER OR SUCH SUBSIDIARY HAS OBTAINED A FINAL AND NONAPPEALABLE JUDGMENT IN ITS FAVOR ON SUCH CLAIM AS DETERMINED BY A COURT OF COMPETENT JURISDICTION OR (z)RESULT FROM ANY DISPUTE SOLELY AMONG INDEMNITEES, OTHER THAN ANY CLAIMS AGAINST ANY INDEMNITEE IN ITS CAPACITY OR IN FULFILLING ITS ROLE AS AN AGENT, JOINT ARRANGER, OR ANY SIMILAR ROLE UNDER THIS AGREEMENT, AND OTHER THAN ANY CLAIMS ARISING OUT OF ANY ACT OR OMISSION ON THE PART OF THE BORROWER OR ANY OF ITS SUBSIDIARIES OR AFFILIATES."
"(c)Reimbursement by Lenders. To the extent that the Borrower for any reason fails to pay indefeasibly any amount required under Sections 12.03(a) or (b)to be paid by it to any Agent (or any sub-agent thereof), any Joint Arranger,any Issuing Bank or any Related Party of any of the foregoing, each Lender severally agrees to pay to such Agent (or any such sub-agent), such Joint Arranger, such Issuing Bank or such Related Party, as the case may be, such Lenders Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent (or any such sub-agent), such Joint Arranger or such Issuing Bank in its capacity as such, or against any Related Party of any of the foregoing acting for such Agent (or any such sub-agent), such Joint Arranger or such Issuing Bank in connection with such capacity."
"(d)Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable law, no party shall assert, and hereby waives, any claim against any other party, 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 or thereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof (other than to the extent any such damages are asserted pursuant to a third-party claim that would otherwise be required to be indemnified or reimbursed pursuant to any Loan Document). No Indemnitee referred to in Section 12.03(b) 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."
"of any Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in Section 12.04(d)) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, any Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement."
"(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 (unless the assignment is to a Lender, an Affiliate of a Lender or an Approved Fund), and the assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire."
"(g)Restrictions if Registration Required. Notwithstanding any other provisions of this Section12.04, no transfer or assignment of the interests or obligations of any Lender or any grant of participations therein shall be permitted if such transfer, assignment or grant would require the Borrower and the Guarantors to file a registration statement with the SEC or to qualify the Loans under the Blue Sky laws of any state."
"(a)All covenants, agreements, representations and warranties made by the Borrower herein 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 this Agreement 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, any other Agent, any Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated. The provisions of Section5.01, Section5.02, Section5.03 and Section12.03 and Article XI 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, any other Loan Document or any provision hereof or thereof."
"required to be repaid to a trustee, debtor in possession, receiver or other Person under any bankruptcy law, common law or equitable cause, then to such extent, the Secured Obligations so satisfied shall be revived and continue as if such payment or proceeds had not been received and the Administrative Agents and the Lenders Liens, security interests, rights, powers and remedies under this Agreement and each Loan Document shall continue in full force and effect. In such event, each Loan Document shall be automatically reinstated and the Borrower shall take such action as may be reasonably requested by the Administrative Agent and the Lenders to effect such reinstatement."
"(b)ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THE LOAN DOCUMENTS SHALL, EXCEPT AS OTHERWISE SET FORTH THEREIN, BE BROUGHT EXCLUSIVELY IN THE COURTS OF THE COUNTY AND STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HEREBY ACCEPTS FOR ITSELF AND (TO THE EXTENT PERMITTED BY LAW) IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS."
"(d)EACH PARTY HEREBY (i)IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION OR 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) AND FOR ANY COUNTERCLAIM THEREIN; (ii)IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; (iii)CERTIFIES THAT NO OTHER PARTY HERETO NOR ANY REPRESENTATIVE, AGENT OR ATTORNEY FOR ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND (iv)ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT, THE LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION12.09."
"or any other Loan Document, (e)in connection with the exercise of any remedies hereunder or under any other Loan Document or any suit, 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 Section12.11, to (i)any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii)any actual or prospective counterparty (or its advisors) to any Hedging Agreement relating to the Borrower and its obligations, (g)with the consent of the Borrower, or (h)to the extent such Information (i)becomes publicly available other than as a result of a breach of this Section12.11 or (ii)becomes available to the Administrative Agent, any Issuing Bank, any Lender or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower. For purposes of this Section12.11, Information means all information received from any Sponsor, Southcross Holdings, the Borrower or any Subsidiary relating to any Sponsor, Southcross Holdings, the Borrower or any Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by any Sponsor, Southcross Holdings, the Borrower or a Subsidiary; provided that, in the case of information received from any Sponsor, Southcross Holdings, the Borrower or any Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section12.11 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information."
"Section12.12Interest Rate Limitation. It is the intention of the parties hereto that each Lender shall conform strictly to usury laws applicable to it. Accordingly, if the Transactions contemplated hereby would be usurious as to any Lender under laws applicable to it (including the laws of the United States of America and the State of Texas or any other jurisdiction whose laws may be mandatorily applicable to such Lender notwithstanding the other provisions of this Agreement), then, in that event, notwithstanding anything to the contrary in any of the Loan Documents or any agreement entered into in connection with or as security for the Secured Obligations, it is agreed as follows: (a)the aggregate of all consideration which constitutes interest under law applicable to any Lender that is contracted for, taken, reserved, charged or received by such Lender under any of the Loan Documents or agreements or otherwise in connection with the Loans shall under no circumstances exceed the maximum amount allowed by such applicable law, and any excess shall be canceled automatically and if theretofore paid shall be credited by such Lender on the principal amount of the Secured Obligations (or, to the extent that the principal amount of the Secured Obligations shall have been or would thereby be paid in full, refunded by such Lender to the Borrower); and (b)in the event that the maturity of the Loans is accelerated by reason of an election of the holder thereof resulting from any Event of Default under this Agreement or otherwise, or in the event of any required or permitted prepayment, then such consideration that constitutes interest under law applicable to any Lender may never include more than the maximum amount allowed by such applicable law, and excess interest, if any, provided for in this Agreement or otherwise shall be canceled automatically by such Lender as of the date of such acceleration or prepayment and, if theretofore paid, shall be credited by such Lender on the principal amount of the Secured Obligations (or, to the extent that the principal amount of the Secured Obligations shall have been or would thereby be paid in full, refunded by such Lender to the Borrower). All sums paid or agreed to be paid to any Lender for"
"Section12.17Amendment and Restatement. It is the intention of the Borrower, the Administrative Agent, and the Lenders, and such parties hereby agree, from and after the Effective Date, this Agreement supersedes and replaces the Existing Credit Agreement in its entirety, and that (a)such amendment and restatement shall operate to renew, amend and modify certain of the rights and obligations of the parties under the Existing Credit Agreement as provided herein, but shall not act as a novation thereof, and (b)the Liens securing the Secured Obligations under and as defined in the Existing Credit Agreement shall not be extinguished, but shall be carried forward and shall secure such obligations and Indebtedness as renewed, amended, restated, and modified hereby. Unless specifically amended hereby, each of the Loan Documents, the Exhibits and the Schedules shall continue in full force and effect and, from and after the Effective Date, all references to the Credit Agreement contained therein shall be deemed to refer to this Agreement. Each Lender hereunder that is an Existing Lender and the Borrower each hereby consent to the amendments to, and amendments and restatements of, the Existing Loan Documents in the form of the Loan Documents."
"Section12.18NON-RECOURSE TO THE GENERAL PARTNER. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS DO NOT AND WILL NOT IN ANY WAY CONSTITUTE A DIRECT OR INDIRECT GUARANTY BY THE GENERAL PARTNER OF THE OBLIGATIONS OF THE BORROWER OR ANY SUBSIDIARY HEREUNDER OR THEREUNDER. IF ANY PROVISION OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IS HELD BY ANY AUTHORITY TO CONSTITUTE A DIRECT OR INDIRECT GUARANTY BY THE GENERAL PARTNER OF THE OBLIGATIONS OF THE BORROWER OR ANY SUBSIDIARY, SUCH PROVISION SHALL BE DEEMED INEFFECTIVE TO THE EXTENT SUCH PROVISION CONSTITUTES A DIRECT OR INDIRECT GUARANTY BY THE GENERAL PARTNER OF THE"
"Section12.19No 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), the Borrower acknowledges and agrees, and acknowledges its Subsidiaries understanding, that: (a)(i) no fiduciary, advisory or agency relationship between the Borrower and its Subsidiaries and the Administrative Agent, any other Agent, any Joint Arranger or any Lender is intended to be or has been created in respect of the transactions contemplated hereby or by the other Loan Documents, irrespective of whether the Administrative Agent or any Lender has advised or is advising the Borrower or any Subsidiary on other matters; (ii)the arranging and other services regarding this Agreement provided by the Administrative Agent, the other Agents, the Joint Arrangers and the Lenders are arms-length commercial transactions between the Borrower and its Subsidiaries, on the one hand, and the Administrative Agent, the other Agents, the Joint Arrangers and the Lenders, on the other hand; (iii)the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent that it has deemed appropriate; and (iv)the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; and (b)(i) the Administrative Agent, the other Agents, the Joint Arrangers and the Lenders 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 acting as an advisor, agent or fiduciary for the Borrower or any of its Subsidiaries, or any other Person; (ii)neither the Administrative Agent nor any of the other Agents, the Joint Arrangers or the Lenders has any obligation to the Borrower or any of its Subsidiaries with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii)the Administrative Agent, the other Agents, the Joint Arrangers and the Lenders and their respective Affiliates may be engaged, for their own accounts or the accounts of customers, in a broad range of transactions that involve interests that differ from those of the Borrower and its Subsidiaries, and neither the Administrative Agent nor any of the other Agents, the Joint Arrangers or the Lenders has any obligation to disclose any of such interests to the Borrower or its Subsidiaries. To the fullest"
"Section12.21Acknowledgement and Consent to Bail-In of EEA Financial Institutions. 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 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:"
" |  | |  | Name: |  | |  | |  | Title: |  | | |  | FL RICH GAS SERVICES, LP | | |  | By: |  | FL Rich Gas Services GP, LLC, |  | |  | its general partner | | |  | By: |  |"
The Borrower hereby further certifies that (i)no account receivable owing from Southcross Holdings to the Borrower has been unpaid for more than 30 days and (ii)the Borrower is in pro forma compliance (as set forth in Section 1.05(c) of the Credit Agreement) with the covenants set forth in Section9.01 of the Credit Agreement.
"SECTION 9.22. Acknowledgment and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among the parties hereto, each party hereto acknowledges that any liability of any 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 any EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:"
"SECTION 5. Applicable Law; Waiver of Jury Trial. (a) THIS AMENDMENT AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AMENDMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK."
"| | SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE FOURTH AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF OCTOBER 22, 2014, AMONG USG CORPORATION AND CGC INC., AS BORROWERS, THE LENDERS AND ISSUING BANKS PARTY THERETO, JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT, JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, AS CANADIAN ADMINISTRATIVE AGENT, AND BANK OF AMERICA, N.A. AND WELLS FARGO BANK, N.A., AS CO-SYNDICATION AGENTS ---|---|--- | Name of Institution: | CITIBANK, N.A. | By |"
"| | SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE FOURTH AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF OCTOBER 22, 2014, AMONG USG CORPORATION AND CGC INC., AS BORROWERS, THE LENDERS AND ISSUING BANKS PARTY THERETO, JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT, JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, AS CANADIAN ADMINISTRATIVE AGENT, AND BANK OF AMERICA, N.A. AND WELLS FARGO BANK, N.A., AS CO-SYNDICATION AGENTS ---|---|--- | Name of Institution: | HSBC |"
"| | SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE FOURTH AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF OCTOBER 22, 2014, AMONG USG CORPORATION AND CGC INC., AS BORROWERS, THE LENDERS AND ISSUING BANKS PARTY THERETO, JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT, JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, AS CANADIAN ADMINISTRATIVE AGENT, AND BANK OF AMERICA, N.A. AND WELLS FARGO BANK, N.A., AS CO-SYNDICATION AGENTS ---|---|--- | Name of Institution: | The Northern Trust Company | By |"
"IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed under seal and delivered by their respective duly authorized officers on the date first written above. --- PERFORMANT BUSINESS SERVICES, INC. (formerly known as DCS Business Services, Inc.) By: /s/ Hakan Orvell______________________ Name: Hakan Orvell______________________ Title: Chief Financial Officer _______________ "
"(iii)acknowledges and agrees that, upon its execution of this Amendment, such Commitment Increase Lender shall automatically and without further action become a Lender under, and for all purposes of, the Amended Credit Agreement and the other Loan Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender thereunder."
"Commitment means, as to each Lender, the amount set forth under the caption Commitment opposite such Lenders name on Schedule 1.01(b), or, as the case may be, opposite such caption in the Assignment and Acceptance 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. The aggregate amount of the Commitments as of the First Amendment Effective Date is $100,000,000."
"SECTION9.Governing Law; etc. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. The provisions in Sections 11.14(b), 11.14(c) and 11.15 of the Credit Agreement are incorporated herein by reference, mutatis mutandis."
"Alternate Base Rate means a rate per annum determined by the Administrative Agent on the first Business Day of each week, which shall be the highest of (a)the Prime Rate,(b)the Federal Funds Effective Rate plus one-half of one percent (0.50%) per annum, and (c)the Adjusted LIBOR Rate (rounded upward, if necessary, to the next whole multiple of 1/100th of one percent) for an Interest Period of one month on such day plus one percent (1.00%) per annum; provided that, in no event shall the Alternate Base Rate be less than 0.00%. Any change in the Alternate Base Rate due to a change in the calculation thereof shall be effective at the opening of business on the first Business Day of each week or, if determined more frequently, at the opening of business on the first Business Day immediately following the date of such determination and without necessity of notice being provided to the Borrower or any other Person."
"Business Day means any day other than a Saturday or Sunday or a legal holiday on which banks are authorized or required to be closed for business in Denver, Colorado, Honolulu, Hawaii or New York, New York and if the applicable Business Day relates to any LIBOR Rate Loan or Base Rate Loan determined by reference to the LIBOR Rate, such day must also be a day on which dealings in Dollar deposits by and between banks are carried on in the London interbank market."
"Capital Expenditures means, for any period, (a)the additions to property, plant and equipment and other capital expenditures of the Parent, Borrower and its consolidated Subsidiaries that are (or should be) set forth in a consolidated statement of cash flows of the Parent for such period prepared in accordance with GAAP and (b)Capital Lease Obligations or Synthetic Lease Obligations incurred by Parent, the Borrower and its consolidated Subsidiaries during such period, but excluding in each case (i)any such expenditure made to restore, replace or rebuild property to the condition of such property immediately prior to any damage, loss, destruction or condemnation of such property, to the extent such expenditure is made with insurance proceeds, condemnation awards or damage recovery proceeds relating to any such damage, loss, destruction or condemnation, (ii)expenditures for leasehold improvements from which reimbursement or credit is received and (iii)expenditures of funds received as grants (and not as loans) pursuant to any federal stimulus funding on projects approved by the board of directors of the Borrower."
"Capital Lease Obligations 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 on a balance sheet of such Person under GAAP, and the amount of such obligation shall be the capitalized amount thereof determined in accordance with GAAP."
"Collateral Documents means the Security Agreement, the Collateral Assignment (if any), the Intellectual Property Security Agreement (if any), the Mortgages, the account control agreements and any other document pursuant to which the Borrower or any other Loan Party has granted a Lien to the Administrative Agent for the benefit of the Secured Parties to secure all or a portion of the Secured Obligations."
"Compliance Officer means the Chief Executive Officer, President, Chief Financial Officer or Controller (or in the case of a Loan Party that is a limited liability company without officers, a manager or member authorized under such Loan Partys Organizational Documents) of the Borrower or any Loan Party, as the case may be."
(i) accruals and reserves that are established within twelve months after the Closing Date and that are so required to be established in accordance with GAAP; provided that any such accruals or reserves paid in cash shall be deducted from Consolidated Net Income for the period in which paid unless excluded pursuant to another clause of this definition;
(iv) any gain or loss realized upon the sale or other Disposition of any assets of the Borrower or its Subsidiaries that are not sold or otherwise disposed of in the ordinary course of business and any gain or loss realized upon the sale or other disposition of any Equity Interests of any Person;
"Control means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. Without limiting the generality of the foregoing, a Person shall be deemed to be controlled by a Person if such Person holds, directly or indirectly, power to vote 10% or more of the securities having ordinary voting power for the election of directors of such other Person. Controlling and Controlled have meanings correlative thereto."
"Fee Letters means, collectively, (a)that certain fee letter dated December1, 2016 executed by the Administrative Agent and agreed to and accepted by the Borrower and (b)any other fee letters entered into between the Borrower and the Administrative Agent from time to time in connection with any Tranche of Incremental Term Loans."
"Fronting Exposure means, at any time there is a Defaulting Lender, (a)with respect to any Issuing Lender, such Defaulting Lenders Pro Rata Share of the outstanding Letter of Credit Obligations with respect to Letters of Credit issued by such Issuing Lender other than Letter of Credit Obligations as to which such Defaulting Lenders participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof and (b)with respect to the Swing Line Lender, such Defaulting Lenders Pro Rata Share of outstanding Swing Line Loans made by the Swing Line Lender other than Swing Line Loans as to which such Defaulting Lenders participation obligation has been reallocated to other Lenders."
"Incremental Term Loan Commitment means, as to any Lender at any time, the amount initially set forth opposite its name in any Incremental Term Loan Funding Agreement with respect to any Tranche of the Incremental Term Loan Facility, as such Commitment is thereafter assigned or modified and Incremental Term Loan Commitments means the aggregate Incremental Term Loan Commitments of all of the Lenders with respect to all Tranches of the Incremental Term Loan Facility."
"Initial Credit Extension means that portion of the initial Credit Extension under the Facilities which (a)is necessary for the Parent, the Borrower and their Subsidiaries to repay in full all outstanding obligations under the Existing Credit Agreements and (b)shall be advanced on the Closing Date concurrent with the consummation of the repayment of the outstanding obligations under the Existing Credit Agreements and the termination of all commitments under the Existing Credit Agreements."
"Minimum Collateral Amount means, at any time, (a)with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 103% of the Fronting Exposure of any Issuing Lender with respect to Letters of Credit issued by it and outstanding at such time and (b)otherwise, an amount determined by the Administrative Agent and such Issuing Lender in its respective sole discretion."
"(c) in the case of any Casualty Event, an amount equal to: (i)the aggregate amount of all cash and Cash Equivalents received by any Loan Party or any of its Subsidiaries from such Casualty Event, minus (ii)the sum of all customary, bona fide, out-of-pocket direct costs incurred by such Loan Party and its Subsidiaries in connection with collecting such cash payments; and"
"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)."
"Payment In Full means (a)with respect to the Obligations, the payment in full in cash of the Loans and other Obligations (other than contingent indemnification obligations as to which no claim has been made) hereunder, the termination of the Commitments and the expiration, termination or Cash Collateralization of all Letters of Credit and (b)with respect to the Other Liabilities, the payment in full in cash or Cash Collateralization of such Other Liabilities."
"Pension Plan means any employee pension benefit plan (as defined in Section3(2)of ERISA) that is subject to Title IV of ERISA (other than a Multiemployer Plan) or is subject to the minimum funding standards under Section412 of the Code, and that any Loan Party or any ERISA Affiliate sponsors, maintains, or contributes to or is required to contribute to or with respect to which any Loan Party or any ERISA Affiliate otherwise has any obligation or liability (including any contingent liability)."
"(iv) the aggregate amount of the consideration (including, in the case of consideration consisting of assets, the fair market value of the assets) paid or incurred by any Loan Party or any Subsidiary of any Loan Party in connection with such Investment shall not exceed $100,000,000 over the term of the Facilities;"
"(v) (A)any Person acquired will be a direct or indirect, wholly-owned Domestic Subsidiary of the Borrower immediately after such Investment, (B)any assets being acquired (other than a de minimis amount of assets in relation to the assets being acquired) are located within the United States, and (C)any Minority Investment being acquired will be in a Person who is organized or formed and existing under the Laws of the United States of America or any state, commonwealth or territory thereof or under the Laws of the District of Columbia and whose assets are located within the United States;"
"(g) any Lien existing on the date of this Agreement and described on Schedule1.1(B), provided that (i)the principal amount secured thereby is not hereafter increased, (ii)no additional assets become subject to such Lien, (iii)the direct or contingent obligor with respect thereto is not changed and (iv)any renewal or extension of the Obligations secured or benefitted thereby is permitted by Section7.1(b);"
"Pro Rata Share means (a)with respect to the Revolving Credit Facility as of any date of determination, the proportion that a Revolving Lenders Revolving Commitment as of such date bears to the aggregate amount of Revolving Commitments of all of the Revolving Lenders as of such date, provided, that if the Revolving Commitments have been terminated or have expired, Pro Rata Share under the Revolving Credit Facility shall be determined based upon the Revolving Commitments most recently in effect, giving effect to any assignment, (b)with respect to the Term Loan A-1 Facility as of any date of determination, (i)if any Term Loan A-1 Commitments remain in effect, the proportion that a Term Loan A-1 Lenders unused Term Loan A-1 Commitment bears to the aggregate amount of Term Loan A-1 Commitments of all of the Term Loan A-1 Lenders as of such date or (ii)if the Term Loan A-1 Commitments have been terminated or have expired, the proportion that the outstanding principal amount of a Term Loan A-1 Lenders Term Loan A-1 as of such date bears to the aggregate principal amount of all outstanding Term Loan A-1s as of such date, (c)with respect to the Term Loan A-2 Facility as of any date of determination, (i)if any Term Loan A-2 Commitments remain in effect, the proportion that a Term Loan A-2 Lenders unused Term Loan A-2 Commitment bears to the aggregate amount of Term Loan A-2 Commitments of all of the Term Loan A-2 Lenders as of such date or (ii)if the Term Loan A-2 Commitments have been terminated or have expired, the proportion that the outstanding principal amount of a Term Loan A-2 Lenders Term Loan A-2 as of such date bears to the aggregate principal amount of"
"Restricted Payment means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of the Parent or any Subsidiary, or any payment (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 of any such Equity Interest, or on account of any return of capital to the Parents stockholders, partners or members (or the equivalent Person thereof)."
"UCC shall mean the Uniform Commercial Code as the same may be in effect from time to time in the State of New York; provided that if, by reason of applicable Law, the validity or perfection of any security interest in any Collateral granted under the Loan Documents is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, then as to the validity or perfection, as the case may be, of such security interest Uniform Commercial Code shall mean the Uniform Commercial Code as in effect from time to time in such other jurisdictions."
"1.6 Covenant Compliance Generally. For purposes of determining compliance under ArticleVIII, any amount in a currency other than Dollars will be converted to Dollars in a manner consistent with that used in calculating Consolidated Net Income in the most recent annual financial statements of the Parent and its Subsidiaries delivered pursuant to Section6.1(b). Notwithstanding the foregoing, for purposes of determining compliance with ArticleVII, with respect to any covenant with respect to the amount of Indebtedness or investment in a currency other than Dollars, no breach of any basket contained therein shall be deemed to have occurred solely as a result of changes in rates of exchange occurring after the time such Indebtedness or investment is incurred; provided, that for the avoidance of doubt, the result of any changes in rates of exchange occurring after the time such Indebtedness or investment is incurred shall otherwise apply in all other cases, including determining whether any additional Indebtedness or investment may be incurred at any time in accordance with ArticleVII and for purposes of calculating financial ratios in accordance with ArticleVIII."
"(v) If in response to the offer to participate in such Tranche made by the Administrative Agent pursuant to clause (iv)above, the Administrative Agent receives commitments from Lenders and/or from any other Person that (A)qualifies as an Eligible Assignee and is reasonably acceptable to the Borrower and the Administrative Agent and (B)has agreed to become a Lender in respect of all or a portion of such Tranche of Incremental Term Loans (an Additional Incremental Term Lender), in excess of the requested Tranche of Incremental Term Loans, the Administrative Agent shall have the right, in its sole discretion but with the consent of the Borrower, to reduce and reallocate (within the minimum and maximum amounts specified by each such Lender or Additional Incremental Term Lender in its notice to the Administrative Agent) the shares of the Incremental Term Loans of the Lenders or Additional Incremental Term Lenders willing to fund (or commit to fund) such Tranche of Incremental Term Loans so that the total committed Incremental Term Loans equal the requested Tranche of Incremental Term Loans. If the Administrative Agent does not receive commitments from Lenders or Additional Incremental Term Lenders in an amount sufficient to fund the requested Tranche of Incremental Term Loans, the Administrative Agent shall so notify Borrower and the request for such Tranche of Incremental Term Loans shall be deemed automatically rescinded; provided, the Borrower may submit a replacement Notice of Incremental Term Loan Borrowing setting forth different terms for the requested Incremental Term Loan."
"(d) Repayment of Revolving Loans. Notwithstanding anything herein or in any other Loan Document to the contrary, the Borrower shall repay the entire outstanding principal amount of Revolving Loans, together with all outstanding interest thereon and unpaid fees with respect thereto, on the Maturity Date with respect to the Revolving Credit Facility."
"(c) Swing Line Loan Requests. Except as otherwise provided herein, the Borrower may from time to time after the Closing Date and prior to the Maturity Date with respect to the Revolving Credit Facility request that the Swing Line Lender make Swing Line Loans by delivering to the Swing Line Lender (with a copy to the Administrative Agent) not later than 1:00 p.m.(or such later time as the applicable cash management agreement, if any, may permit or otherwise as the Swing Line Lender in its sole discretion may agree) on the proposed Borrowing Date of a duly completed and executed Loan Request, by telephonic request promptly followed by a duly completed and executed Loan Request, or by such other method of request as may be provided for in any applicable cash management agreement. Each such request shall be irrevocable and shall specify the proposed Borrowing Date and the principal amount of such Swing Line Loan. Minimum borrowing amounts shall not apply to Swing Line Loans, except as provided for in any applicable cash management agreement. Promptly after receipt of any such request for a Swing Line Loan, the Swing Line Lender will confirm with the Administrative Agent that the Administrative Agent received a copy of the same and, if not, provide the Administrative Agent with information regarding the requested Swing Line Loan."
"(a) Interest Rate Options. Swing Line Loans and all other Obligations not constituting Term Loans,Incremental Term Loans, Revolving Loans or Letter of Credit Fees shall bear interest calculated using the Base Rate Option. Subject to the limitations set forth in Section3.4, the Borrower shall have the right to select from the following Interest Rate Options applicable to the Term Loans,Incremental Term Loans and Revolving Loans:"
"(c) Selection of Interest Rate Options. If the Borrower elects to continue a LIBOR Rate Loan but fails to select a new Interest Period to apply thereto, then a one month Interest Period automatically shall apply. If the Borrower fails to duly request the continuation of any Borrowing consisting of LIBOR Rate Loans on or before the date specified and otherwise in accordance with the provisions of this Section2.5, then such LIBOR Rate Loan automatically shall be converted to a Base Rate Loan, interest at the Base Rate Option shall commence on the last day of the existing Interest Period."
"(a) Notifications and Payments. The Administrative Agent shall, promptly after receipt by it of a Loan Request pursuant to Sections 2.1(c), 2.1(g)or 2.2(b)notify the applicable Lenders of such Classof Loan of its receipt of such Loan Request specifying the information provided by the Borrower and the apportionment among the Lenders of the requested Loan as determined by the Administrative Agent in accordance with Section2.1 or Section2.2, as applicable. Each applicable Lender shall remit the principal amount of their Pro Rata Share of the Loan to the Administrative Agent such that the Administrative Agent is able to, and the Administrative Agent shall, to the extent the Lenders have made funds available to it for such purpose and subject to the terms and conditions of Section2.1 or Section2.2, as applicable, fund such Loan to the Borrower in Dollars and immediately available funds to the Borrowers account specified in the Loan Request prior to 2:00 p.m. on any proposed Borrowing Date."
"(c) Presumptions by the Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed Borrowing Date that such Lender will not make available to the Administrative Agent such Lenders share of any Loan, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section2.1 or Section2.2, as the case may be, and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of such Loan available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i)in the case of a payment to be made by such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry ruleson interbank compensation and (ii)in the case of a payment to be made by the Borrower, the interest rate then applicable to Base Rate Loans. If such Lender pays its share of the applicable Loan to the Administrative Agent, then the amount so paid shall constitute such Lenders Loan. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent. If the Borrower and such Lender pay such interest for the same period, the Administrative Agent promptly shall remit to the Borrower the amount of interest paid by Borrower for such overlapping period. Nothing in this Section2.6(c)or elsewhere in this Agreement or the other Loan Documents, including the provisions of Section2.14, shall be deemed to require the Administrative Agent (or any other Lender) to advance funds on behalf of any Lender, to relieve any Lender from its obligation to fulfill its commitments hereunder, or to prejudice any rights that the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder."
"(b) Term Loan A-1 Unused Commitment Fees. From and including the Execution Date to but excluding the earlier of the Closing Date and the Maturity Date, the Borrower agrees to pay to the Administrative Agent for the account of each Term Loan A-1 Lender according to its Pro Rata Share, a nonrefundable unused commitment fee (each a Term Loan A-1 Unused Commitment Fee) equal to the Applicable Unused Commitment Fee Rate multiplied by the Term Loan A-1 Commitments. Subject to the Section2.15, all Term Loan A-1 Unused Commitment Fees shall be payable in arrears on the earlier of the Closing Date and the Maturity Date."
"(c) Term Loan A-2 Unused Commitment Fees. From and including the Execution Date to but excluding the earlier of the Closing Date and the Maturity Date, the Borrower agrees to pay to the Administrative Agent for the account of each Term Loan A-2 Lender according to its Pro Rata Share, a nonrefundable unused commitment fee (each a Term Loan A-2 Unused Commitment Fee) equal to the Applicable Unused Commitment Fee Rate multiplied by the Term Loan A-2 Commitments. Subject to the Section2.15, all Term Loan A-2 Unused Commitment Fees shall be payable in arrears on the earlier of the Closing Date and the Maturity Date."
"(ii) Each Revolving Lender shall upon the Business Day immediately following a Drawing Date with respect to which notice was delivered by the Administrative Agent in accordance with Section2.9(c)(i)make funds available to the Administrative Agent for the account of the applicable Issuing Lender in an amount equal to its Pro Rata Share of the amount of the drawing. So long as the conditions set forth in Section4.3 have been satisfied or waived in accordance with this Agreement, each Revolving Lender that makes such funds available shall be deemed to have made a Revolving Loan at the Base Rate Option; provided, that if any conditions set forth in Section4.3 have not been satisfied or waived in accordance with this Agreement, each Revolving Lender shall remain obligated to fund its Pro Rata Share of such unreimbursed amount and such amount (each a Participation Advance) shall be deemed to be a payment in respect of its participation in the applicable Letter of Credit Borrowing resulting from such drawing in accordance with Section2.9(c)(iii). If any Revolving Lender so notified fails to make available to the Administrative Agent for the account of such Issuing Lender the amount of such Revolving Lenders Pro Rata Share of such amount by no later than 12:00 Noon on such date, then interest shall accrue on such Revolving Lenders obligation to make such payment, from such Business Day to the date on which such Lender makes such payment (A)at a rate per annum equal to the Federal Funds Effective Rate during the first three days following the date such amount was due and (B)at a rate per annum equal to the rate applicable to Base Rate Loans thereafter. The Administrative Agent and the Issuing Lender will promptly give notice (as described in Section2.9(c)(i)above) of the occurrence of the Drawing Date, but failure of the Administrative Agent or the Issuing Lender to give any such notice on the Drawing Date or in sufficient time to enable any Lender to effect such payment on such date shall not relieve such Lender from its obligation under this clause(ii)."
"(iii) With respect to any unreimbursed drawing that is not fully reimbursed by Borrower and is not refinanced by Revolving Loans in accordance with Section2.9(c)(i)because of the Borrowers failure to satisfy the conditions set forth in Section4.3, the Borrower shall be deemed to have incurred from the Issuing Lender a borrowing (each, a Letter of Credit Borrowing) in an amount equal to the unreimbursed portion of such drawing. Such Letter of Credit Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the rate per annum applicable to the Revolving Loans under the Base Rate Option."
"(i) Upon (and only upon) receipt by the Administrative Agent for the account of the applicable Issuing Lender of immediately available funds from the Borrower (A)in reimbursement of any payment made by such Issuing Lender under the Letter of Credit with respect to which any Lender has made a Participation Advance to the Administrative Agent or (B)in payment of interest on such a payment made by such Issuing Lender under such a Letter of Credit, the Administrative Agent on behalf of such Issuing Lender will pay to each Revolving Lender, in the same funds as those received by the Administrative Agent, the amount of such Revolving Lenders Pro Rata Share of such funds, except the Administrative Agent shall retain for the account of such Issuing Lender the amount of the Pro Rata Share of such funds of any Revolving Lender that did not make a Participation Advance in respect of such payment by such Issuing Lender."
"(f) Determinations to Honor Drawing Requests. In determining whether to honor any request for drawing under any Letter of Credit by the beneficiary thereof, an Issuing Lender shall be responsible only to determine that the documents and certificates required to be delivered under such Letter of Credit have been delivered and that they comply on their face with the requirements of such Letter of Credit."
"(i) any set-off, counterclaim, recoupment, defense or other right that such Revolving Lender may have against an Issuing Lender or any of its Affiliates, the Borrower or any other Person for any reason whatsoever, or that any Loan Party may have against such Issuing Lender or any of its Affiliates, any Lender or any other Person for any reason whatsoever;"
"(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;"
"(h) Indemnity. The Borrower hereby agrees to protect, indemnify, pay and save harmless the Issuing Lenders from and against any and all claims, demands, liabilities, damages, penalties, interest, judgments, losses, costs, charges and expenses (including reasonable fees, expenses and disbursements of counsel and allocated costs of internal counsel) that such Issuing Lender may incur or be subject to as a consequence, direct or indirect, of the issuance of any Letter of Credit, other than as a result of (i)the gross negligence or willful misconduct of the Issuing Lender as determined by a final, non- appealable judgment of a court of competent jurisdiction or (ii)a claim brought by the Borrower against such Issuing Lender for breach in bad faith of its obligations under this Agreement. This Section2.9(h)shall not apply with respect to Taxes other than any Taxes that represent liabilities, damages, penalties, interest, judgments, losses, costs, charges or expenses arising from any non-Tax claim."
"(b) Payments by the Borrower; Presumptions by the 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 an Issuing Lender 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 Lenders or the Issuing Lender, 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 Lenders or Issuing Lender, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing 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 Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry ruleson interbank compensation."
"Except as otherwise expressly provided herein with respect to refinancings, all prepayment notices shall be irrevocable. The principal amount of the Loans for which a prepayment notice is given, together with interest on such principal amount except with respect to Loans to which the Base Rate Option applies, shall be due and payable on the date specified in such prepayment notice as the date on which the proposed prepayment is to be made. So long as no Event of Default has occurred and is continuing, prepayments permitted pursuant to this Section2.12 shall be applied to the Revolving Credit Facility or the Term Loans or the Incremental Term Loans as the Borrower may direct (provided that the Term Loans and the Incremental Term Loans are prepaid pro rata). Prepayments pursuant to this Section2.12 of the Term Loans and Incremental Term Loans shall be applied pro rata to the unpaid installments of principal of the Term Loans and Incremental Term Loans in the inverse order of scheduled maturities (for the avoidance of doubt, including application to any balloon payment due and payable on the applicable Maturity Date). If the Borrower prepays a Loan but fails to specify the applicable Classand/or Borrowing that the Borrower intends to prepay or if an Event of Default has occurred and is continuing, then such prepayment shall be applied first, ratably to all outstanding Revolving Loans that are Base Rate Loans, second, ratably to all outstanding Revolving Loans that are LIBOR Rate Loans, third, ratably to all outstanding Term Loans and Incremental Term Loans that are Base Rate Loans, and fourth, ratably to all outstanding Term Loans and Incremental Term Loans that are LIBOR Rate Loans. Any prepayment hereunder (1)shall include all interest and fees due and payable with respect to the Loan being prepaid (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) and (2)shall be subject to the Borrowers Obligation to indemnify the Lenders under Section3.5. Notwithstanding the foregoing, any prepayment notice delivered in connection with any proposed refinancing of all of the Facilities may be, if expressly so stated in the applicable prepayment notice, contingent upon the consummation of such refinancing, and (x)the repayment date therefor may be amended from time to time by notice from the Borrower to the Administrative Agent and/or (y)such prepayment notice may be revoked by the Borrower in the event such refinancing is not consummated (provided that the failure of such contingency shall not relieve the Borrower from its obligations in respect thereof under Section3.5)."
"(i) In addition to the commitment reductions pursuant to Section2.12(b)(ii)and 2.13(f), the Revolving Commitment shall be permanently reduced and terminated in full on the Maturity Date with respect to the Revolving Credit Facility. Any outstanding principal balance of the Revolving Loans not sooner due and payable will become due and payable on such Maturity Date and shall be accompanied by accrued interest on the amount repaid, any applicable fees pursuant to Section3.5 and any other fees required hereunder."
"(d) Equity Issuances. Promptly upon receipt by any Loan Party or Subsidiary thereof of Net Cash Proceeds from any Equity Issuance by any Loan Party other than the Parent, other than Equity Issuances expressly permitted under Section7.13(a), the Borrower shall prepay, or cause such other Loan Party or Subsidiary to prepay, Obligations in an aggregate amount equal to 100% of Net Cash Proceeds of such Equity Issuance. Promptly upon receipt by any Loan Party or Subsidiary thereof of Net Cash Proceeds from any Equity Issuance by the Parent, other than Equity Issuances to the extent expressly permitted under Section7.13(b), the Borrower shall prepay, or cause such other Loan Party or Subsidiary to prepay, Obligations in an aggregate amount equal to 50% of Net Cash Proceeds of such Equity Issuance. 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 Equity Issuance giving rise to such prepayment obligation."
"(v) Cash Collateral; Repayment of Swing Line Loans. If the reallocation described in clause (iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under Law, (A)first, prepay Swing Line Loans in an amount equal to the Swing Line Lenders Fronting Exposure and (B)second, Cash Collateralize each Issuing Lenders Fronting Exposure in accordance with the procedures set forth in Section2.16."
"(c) New Swing Line Loans/Letters of Credit. So long as any Lender is a Defaulting Lender, (i)the Swing Line Lender shall not be required to fund any Swing Line Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swing Line Loan and (ii)the Issuing Lenders shall not be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto."
"(b) Each party hereto acknowledges that CoBank has a statutory first lien pursuant to the Farm Credit Act of 1971 on all CoBank Equities that the Borrower may now own or hereafter acquire, which statutory lien shall be for CoBanks sole and exclusive benefit. Notwithstanding anything herein or in any other Loan Document to the contrary, the CoBank Equities shall not constitute security for the Secured Obligations due to any other Secured Party. To the extent that any of the Loan Documents create a Lien on the CoBank Equities or on patronage accrued by CoBank for the account of the Borrower (including, in each case, proceeds thereof), such Lien shall be for CoBanks sole and exclusive benefit and shall not be subject to pro rata sharing hereunder. Neither the CoBank Equities nor any accrued patronage shall be offset against the Secured Obligations except that, in the event of an Event of Default, CoBank may elect to apply the cash portion of any patronage distribution or retirement of equity to amounts due under this Agreement. The Borrower acknowledges that any corresponding tax liability associated with such application is the sole responsibility of the Borrower. CoBank shall have no obligation to retire the CoBank Equities upon any Event of Default, Default or any other default by the Borrower or any other Loan Party, or at any other time, either for application to the Secured Obligations or otherwise."
"(h) Treatment of Certain Tax Benefits. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of, or credit with respect to, any Taxes as to which it has been indemnified pursuant to this Section3.2 (any such tax refund or credit, a Tax Benefit) (including by the payment of additional amounts pursuant to this Section3.2), it shall pay to the indemnifying party an amount equal to such Tax Benefit (but only to the extent of indemnity payments made under this Section3.2 with respect to the Taxes giving rise to such Tax Benefit), 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 Tax Benefit). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this clause (h)(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 Tax Benefit to such Governmental Authority. Notwithstanding anything to the contrary in this clause (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this clause (h)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 Tax Benefit 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 clause (h)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 the indemnifying party or any other Person."
"3.3 Illegality. If any Lender determines that any Change in Law has made it unlawful for any Lender to make, maintain or fund LIBOR Rate Loans, or to determine or charge interest rates based upon the LIBOR Rate Option, or if 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 written notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation of such Lender to make or continue LIBOR Rate Loans or to convert Base Rate Loans to LIBOR Rate Loans shall be suspended 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, the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all LIBOR Rate Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such LIBOR Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such LIBOR Rate Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued and unpaid interest and all other amounts payable by Borrower under this Agreement (including amounts payable under Section3.5) on the amount so prepaid or converted."
including any loss of anticipated profits and 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.
"(b) Replacement of Lenders. If any Lender requests compensation under Section3.1, or if the 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 Section3.2 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section3.6(a)above 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, Section11.7), all of its interests, rights (other than its existing rights to payments pursuant to Section3.1 or 3.2) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:"
"(ii) a certificate of the Borrower signed by an Authorized Officer of the Borrower, dated as of the Execution Date, stating that (A)all Execution Date Representations are true and correct in all material respects as of the Execution Date, 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 Execution Date (or, if such representation or warranty makes reference to an earlier date, as of such earlier date), (B)no Governmental Authority authorization is required with respect to the execution, delivery or performance of this Agreement by the Borrower, (C)since December31, 2015, there has occurred no Material Adverse Effect or any event, change or effect that would, individually or in the aggregate, reasonably be likely to result in a Material Adverse Effect, (D)there is no action, suit, proceeding or investigation pending against, or threatened in writing against, the Borrower or any Affiliate of the Borrower or any of their respective properties, including the Licenses, in any court or before any arbitrator of any kind or before or by any other Governmental Authority (including the FCC and any applicable PUC) that would reasonably be expected to result in a Material Adverse Effect and (E)the Borrower has satisfied each of the conditions required to be satisfied by it under this Section4.1;"
"(iii) a certificate dated as of the Execution Date and signed by the Secretary or an Assistant Secretary of the Borrower, certifying as appropriate as to: (A)all actions taken by the Borrower in connection with the execution of this Agreement on the Execution Date and other Loan Documents on the Closing Date; (B)the names of the Authorized Officers of the Borrower authorized to sign the Loan Documents and their true signatures, and (C)copies of its Organizational Documents as in effect on the Execution Date certified by the appropriate state official where such documents are filed in a state office (if so filed or required to be so filed) together with certificates from the appropriate state officials as to the continued existence and good standing or existence (as applicable) of the Borrower in its state of incorporation;"
"(i) a certificate of the Borrower signed by a Compliance Officer of the Borrower, dated as of the Closing Date and substantially in the form of ExhibitN hereto, certifying that: (A)since the Execution Date, no Material Contract has been entered into, terminated or altered, amended, or otherwise changed or supplemented or any provision or condition therein waived by the Borrower or any of its Affiliates, and neither the Borrower nor any of its Affiliates have consented to any action under any Material Contract that would be adverse to the interests of the Lenders in any material respect without the prior written consent of the Administrative Agent, (B)there has occurred no Closing Date Material Adverse Effect or any event, change or effect that would, individually or in the aggregate, reasonably be likely to result in a Closing Date Material Adverse Effect, (C)all authorizations, consents and waivers of any applicable Governmental Authority which are required with respect to the execution, delivery or performance of the Loan Documents have been obtained or made, are final orders and are in full force and effect, (D)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), (E)after giving effect to the Initial Credit Extension, each of the representations and warranties set forth in ArticleV of this Agreement other than the Closing Date Representations is true and correct in all material"
"(i) counterparts to a Guarantor Joinder, dated as of the Closing Date, duly executed and delivered on behalf of (A)the Parent and each of the Subsidiaries of the Borrower listed on Schedule 4.2(b), (B)the Borrower and (C)the Administrative Agent, together with revisions or updates to Schedule 5.1 or Schedule 5.6 as may be necessary or appropriate to revise or update any of the information or disclosures provided on the Execution Date that has become outdated or incorrect in any material respect as of the Initial Credit Extension;"
"(ix) evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with (A)additional insured, mortgagee and lender loss payable special endorsements attached thereto naming the Administrative Agent as additional insured, mortgagee and lender loss payee, as applicable, (B)notice of cancellation endorsements, and (C)waiver of subrogation endorsements;"
"(x) evidence that all notices and governmental and third-party consents, subordinations or waivers, as applicable, required to effectuate the transactions contemplated hereby have been timely filed and 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;"
"(a) the representations and warranties of the Loan Parties set forth in ArticleV of this Agreement shall on the date of such Credit Extension (both before and after giving effect to such Credit Extension and the application of the proceeds thereof) be true and correct, except such representations and warranties that are not qualified in this Agreement by reference to materiality or a Material Adverse Effect shall then be true and correct in all material respects as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall have been true and correct in all material respects as of such earlier date),"
"5.6 Subsidiaries and Owners. Schedule5.6 sets forth, as of the Execution Date and the Closing Date (a)the name of each of the Parents Subsidiaries, its jurisdiction of organization and the amount, percentage and type of Equity Interests of such Subsidiary (the Subsidiary Equity Interests) held by the Parent or any Subsidiary of the Parent, and (b)any options, warrants or other rights outstanding to purchase any such Equity Interests referred to in clause (a). The Parent and each Subsidiary of the Parent has good and marketable title to all of the Subsidiary Equity Interests it purports to own, free and clear in each case of any Lien other than the Lien of the Administrative Agent pursuant to the Security Agreement (and prior to the Initial Credit Extension Liens pursuant to the Existing Credit Agreements) and all such Subsidiary Equity Interests have been validly issued, fully paid and nonassessable (or, in the case of a partnership, limited liability company or similar Equity Interest, not subject to any capital call or other additional capital requirement)."
"(b) This Agreement and each of the other Loan Documents (i)has been duly and validly executed and delivered by each Loan Party, and (ii)constitutes, or will constitute, legal, valid and binding obligations of each Loan Party that is or will be a party thereto, enforceable against such Loan Party in accordance with its terms, as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors rights generally."
"5.9 Litigation. There are no actions, suits, proceedings or, to the knowledge of any Authorized Officer of any Loan Party or any Subsidiary of any Loan Party, investigations pending or threatened in writing against any Loan Party or any Subsidiary of any Loan Party or any of their respective properties, including the Licenses, at law or in equity before any Governmental Authority that individually or in the aggregate (a)would reasonably be expected to result in a Material Adverse Effect or (b)purports to affect the legality, validity or enforceability of any Loan Document. None of the Loan Parties or any Subsidiaries of any Loan Party is in violation of any order, writ, injunction or any decree of any Governmental Authority that would reasonably be expected to result in a Material Adverse Effect."
"(c) Accuracy of Financial Statements. Neither the Parent nor any of its Subsidiaries has any liabilities, contingent or otherwise, or forward or long- term commitments that are not disclosed in the financial statements referred to in clauses (a)and (b)of this Section5.10 or in the notes thereto, and except as disclosed therein there are no unrealized or anticipated losses from any commitments of the Parent or any Subsidiary of the Parent that would reasonably be expected to result in a Material Adverse Effect."
"(a) Each Plan complies with its terms and with the applicable provisions of ERISA, the Code and other federal or state Laws, except for any noncompliance that could not reasonably be expected to result in a Material Adverse Effect. Each Plan that is intended to qualify under Section401(a)of the Code has (i)received the most recently available favorable determination letter from the IRS, or (ii)an application for such a letter currently being processed by the IRS with respect thereto, or (iii)been adopted by means of a prototype or volume submitter plan document that has received the most recently available opinion letter from the IRS on which the plan sponsor is entitled to rely and, nothing has occurred that would prevent, or cause the loss of, such qualification. The Loan Parties and each ERISA Affiliate have satisfied all of their obligations and liabilities with respect to each Pension Plan and have made all required contributions to each Pension Plan on or before the applicable due date that are required by the Plan Funding Rulesor a collective bargaining agreement, and no application for a funding waiver or an extension of any amortization period pursuant to Section412 of the Code has been made with respect to any Pension Plan."
"(d) Each of the Loan Parties and their respective Subsidiaries has made all material filings which are required to be filed by it, paid, or caused to be paid, all material franchise, license or other fees and charges related to the Licenses or which have become due pursuant to any authorization, consent, approval or license of, or registration or filing with, any Governmental Authority in respect of its business (including Universal Service Fund and TRS Fund contributions), or which is otherwise required for the construction and operation of any Communications System and has made appropriate provision as is required by GAAP for any such fees and charges which have accrued."
"5.23 Labor Matters. There are no strikes, lockouts or slowdowns against any Loan Party or any Subsidiary of any Loan Party pending or, to the knowledge of any Authorized Officer of any Loan Party or any Subsidiary of any Loan Party, threatened except as would not reasonably be expected to result in a Material Adverse Effect. The hours worked by and payments made to employees of the Loan Parties and their respective Subsidiaries within the past five years have not been in violation of the Fair Labor Standards Act or any other applicable Federal, state, local or foreign law dealing with such matters, except as would not reasonably be expected to result in a Material Adverse Effect. The execution, delivery and performance of the Loan Documents will not give rise to any right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which any Loan Party or any Subsidiary of any Loan Party is bound."
"(a) Quarterly Financial Statements. As soon as available and in any event no later than the earlier of (i)10 days after Parent is or would be required to file a report Form10-Q with the Securities and Exchange Commission in compliance with the reporting requirements of Section13 or 15(d)of the Securities Exchange Act of 1934, as amended (whether or not the Borrower is subject to such reporting requirements), and (ii)50 days after the end of each of the first three fiscal quarters in each fiscal year of the Borrower, financial statements of the Parent consisting of a consolidated balance sheet as of the end of such fiscal quarter, related consolidated statements of income for the fiscal quarter then ended and the fiscal year through that date, and consolidated stockholders equity and cash flows for the fiscal year through that date, all in reasonable detail and certified by a Compliance Officer of the Borrower as having been prepared in accordance with GAAP (subject to normal year-end audit adjustments), consistently applied, and setting forth in comparative form the respective financial statements for the corresponding date and period in the previous fiscal year."
"requirements), and (ii)95 days after the end of each fiscal year of the Borrower, audited financial statements of the Parent consisting of a consolidated balance sheet as of the end of such fiscal year, and related consolidated statements of income, stockholders equity and cash flows for the fiscal year then ended, all in reasonable detail and setting forth in comparative form the financial statements as of the end of and for the preceding fiscal year, all audited by Deloitte& Touche LLP or other independent certified public accountants of nationally recognized standing reasonably satisfactory to the Administrative Agent and accompanied by an opinion of such accounts (which opinion shall be free of qualifications and exceptions (other than any consistency qualification that may result from a change in the method used to prepare the financial statements as to which such accountants concur)) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied."
"(i) Default. Promptly after any officer of any Loan Party has learned of the occurrence of an Event of Default or Default, a certificate signed by an Authorized Officer of the Borrower setting forth the details of such Event of Default or Default and the action that the Borrower proposes to take, or to cause to be taken, with respect thereto."
"(iii) Litigation. Promptly after the commencement thereof, notice of all actions, suits, proceedings or investigations before or by any Governmental Authority or any other Person against any Loan Party or Subsidiary of any Loan Party that relate to the Collateral, involve a claim or series of claims equal to or in excess of the Threshold Amount or that, if adversely determined, would reasonably be expected to result in a Material Adverse Effect; provided that, such notice requirement shall not apply to any claims reasonably deemed frivolous by the Borrower regardless of the amount in controversy."
"(d) If any Loan Party fails to, or fails to cause any of its Subsidiaries to, obtain and maintain any of the policies of insurance required to be maintained pursuant to the provisions of this Section6.5 or to pay any premium in whole or in part, the Administrative Agent may, without waiving or releasing any obligation or Default or Event of Default, at the Loan Parties expense, but without any obligation to do so, procure such policies or pay such premiums. All sums so disbursed by the Administrative Agent, including any reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and reasonable and documented fees, charges and disbursements of counsel for the Administrative Agent, shall be payable by the Loan Parties to the Administrative Agent within three Business Days of receipt of a written demand by the Administrative Agent and shall be additional Obligations hereunder and under the other Loan Documents, secured by the Collateral."
"6.6 Maintenance of Properties. Each Loan Party shall, and shall cause each of its Subsidiaries to, maintain in good repair, working order and condition (ordinary wear and tear excepted) in accordance with the general practice of other businesses of similar character and size, all of those properties useful or necessary to its business, and from time to time, such Loan Party will make or cause to be made all appropriate repairs, renewals or replacements thereof, except where the failure to do so would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect."
"6.7 Visitation Rights. Each Loan Party shall, and shall cause each of its Subsidiaries to, permit any of the officers or authorized employees or representatives of the Administrative Agent or any of the Lenders to visit and inspect during normal business hours any of its properties and to examine and make excerpts from its books and records and discuss its business affairs, finances and accounts with its officers and to conduct reviews of each Loan Partys Collateral (such reviews to occur on an annual basis or more frequently, as determined by the Administrative Agent, in its sole discretion), all in such detail and at such times and as often as the Required Lenders may reasonably request, all at the Borrowers expense; provided that (a)prior to the occurrence of an Event of Default the Administrative Agent shall provide the Borrower with reasonable notice prior to any visit or inspection and (b)any visit by any of the Lenders other than the Administrative Agent shall be at such Lenders expense and not at the expense of Borrower. Prior to the occurrence of an Event of Default, the Administrative Agent shall not, without cause, as determined by the Administrative Agent in its reasonable judgment, request reimbursement from the Borrower for more than one such Collateral audit in any calendar year."
"6.8 Keeping of Records and Books of Account. The Loan Parties shall, and shall cause each Subsidiary of the Borrower to, maintain and keep adequate books of record and account that enable the Borrower and its Subsidiaries to issue financial statements in accordance with GAAP and as otherwise required by applicable Laws of any Governmental Authority having jurisdiction over the Borrower or any Subsidiary of the Borrower, and in which full, true and correct entries shall be made in all material respects of all its dealings and business and financial affairs."
"(c) Each of the Loan Parties shall, and shall cause each of its Subsidiaries to, (i)conduct its operations and keep and maintain its real property in material compliance with all Environmental Laws and environmental permits; (ii)obtain and renew all environmental permits necessary for its operations and properties; and (iii)implement any and all investigation, remediation, removal and response actions that are necessary to maintain the value and marketability of the real"
"(ii) the creation or acquisition of any direct or indirect Subsidiary by any Loan Party that is an Excluded Subsidiary, (1)each such new Excluded Subsidiary will execute and deliver to the Administrative Agent a duly executed Negative Pledge Agreement and (2)the Equity Interests (as defined in the Security Agreement) of such new Subsidiary shall be pledged by the applicable Loan Party to the extent provided in the Collateral Documents."
"(d) Material Account. In furtherance, and not in limitation, of Sections6.10(a)and 6.10(b), but subject to the limitations of such Sections, the Loan Parties shall, within 45 days (as such time period may be extended by the Administrative Agent, in its sole discretion) of the acquisition by any Loan Party of any Material Account that is not subject to a control agreement in favor of the Administrative Agent, for the benefit of the Secured Parties, deliver to the Administrative Agent a duly completed and executed control agreement, sufficient to perfect the Administrative Agents security interest under the Uniform Commercial Code and otherwise in form and substance reasonably satisfactory to the Administrative Agent."
"(b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to any wholly-owned Subsidiary of the Borrower; provided that if the transferor in such a transaction is a Guarantor, then the transferee must either be the Borrower or a Guarantor (other than Parent)."
"(g) (i)any lease, sublease or other Disposition of fiber or capacity (including an IRU) owned by any Loan Party or Subsidiary of any Loan Party in the non-common carrier fiber-optic submarine cable network connecting the continental United States,Indonesia, the Philippines, Guam, and Hawaii known as the Southeast Asia-US submarine cable system (SEA-US) and (ii)any lease or sublease of capacity (including an IRU in capacity) in the ordinary course of business with respect to other fiber owned or leased by any Loan Party or Subsidiary of a Loan Party; provided that, in each case, such lease, sublease or other Disposition shall not interfere in any material respect with the business of the Loan Parties or any of theirs Subsidiaries;"
"7.13 Issuance of Equity Interests. No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries to, commence or consummate any Equity Issuance, except for (a)any such Equity Issuances by any Loan Party (other than the Parent) to and for the benefit of a Loan Party and that are subject to the Administrative Agents Prior Security Interest therein and otherwise comply with the Security Agreement, (b)issuance of common Equity Interests of Parent to directors, officers, or employees of the Parent or any of its Subsidiaries pursuant to an employee benefit plan existing as of the Execution Date or a similar employee benefit plan established in the ordinary course of business and reasonable acceptable to the Administrative Agent, (c)any Equity Issuance permitted pursuant to Section7.6; and (d)the Parent may issue and sell its common Equity Interests, so long as no Default or Event of Default would result there form and the Net Cash Proceeds thereof are applied to the prepayment of the Obligations pursuant to Section2.13."
"(b) Breach of Warranty. Any representation, warranty, certification or statement of fact made or deemed made at any time by any of the Loan Parties herein or in any other Loan Document, or in any certificate, other instrument or statement furnished pursuant to the provisions hereof or thereof, shall have been false or misleading as of the time it was made or furnished (i)as stated if such representation or warranty contains an express materiality qualification or (ii)in any material respect if such representation or warranty does not contain such qualification;"
"(b) Bankruptcy,Insolvency or Reorganization Proceedings. If an Event of Default specified under Section9.1(l)shall occur, the Lenders shall be under no further obligations to make Loans hereunder and the Issuing Lenders shall be under no obligation to issue Letters of Credit and the unpaid principal amount of the Loans then outstanding and all interest accrued thereon, any unpaid fees and all other Indebtedness of the Borrower to the Lenders hereunder and thereunder automatically shall be immediately due and payable, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived; and"
"Second, to payment of that portion of the Obligations constituting indemnities, expenses, and other amounts (other than principal, interest and fees) payable to the Lenders and each Issuing Lender (including fees, charges and disbursements of counsel to the respective Lenders and each Issuing Lender and amounts payable under ArticleX), ratably among them in proportion to the amounts described in this clause Second payable to them;"
"Fourth, pro rata to the payment of (A)that portion of the Obligations constituting unpaid principal of the Loans and Letter of Credit Borrowings, ratably among the Lenders and each Issuing Lender in proportion to the respective amounts described in this subclause (A)of clause Fourth held by them and (B)with respect to the Facilities Secured Hedges, the amount of Other"
"10.1 Appointment and Authority. Each of the Lenders and each Issuing Lender (on behalf of itself and each of its Affiliates) hereby irrevocably appoints CoBank 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 or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this ArticleX are solely for the benefit of the Administrative Agent, the Lenders, the Affiliates of the Lenders who are Secured Parties and each Issuing Lender, and neither the Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term agent herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties."
"10.2 Rights as a Lender. The Person 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 the term Lender or Lenders shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders."
"(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 any Debtor Relief Law or that may affect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and"
"10.7 Filing Proofs of Claim. In case of the pendency of any proceedings under any Debtor Relief Law or any other judicial proceeding relating to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan 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 therefor) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:"
"10.10 Non-Reliance on the Administrative Agent and Other Lenders. Each Lender and the Issuing Lender 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 Lender 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."
"10.11 Enforcement. By its acceptance of the benefits of this Agreement and the other Loan Documents, each Secured Party agrees that (a)the Loan Documents may be enforced only by the Administrative Agent, subject to Section11.2, (b)no Secured Party shall have any right individually to enforce or seek to enforce this Agreement or the other Loan Documents or to realize upon any Collateral or other security given to secure the payment and performance of the Obligations and (c)no Secured Party has 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 or an Issuing Lender and, in such case, only to the extent expressly provided in the Loan Documents."
"10.14 Compliance with Flood Laws. CoBank has adopted internal policies and procedures that address requirements placed on federally regulated lenders under the Flood Laws. CoBank, as administrative agent or collateral agent on a syndicated facility, will post on the applicable electronic platform (or otherwise distribute to each lender in the syndicate) documents that it receives in connection with the Flood Laws. However, CoBank reminds each lender and participant in the facility that, pursuant to the Flood Laws, each federally regulated lender (whether acting as a lender or participant in the facility) is responsible for assuring its own compliance with the flood insurance requirements."
"(h) release the Borrower without the consent of each Lender, or, except in connection with a transaction permitted under Section7.7 or 7.8, all or substantially all of the value of the Guaranty provided pursuant to ArticleXII of this Agreement without the written consent of each Lender whose Secured Obligations are guaranteed thereby, except to the extent such release is permitted pursuant to Section10.13 (in which case such release may be made by the Administrative Agent acting alone);"
"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 (A)the Commitment of such Defaulting Lender may not be increased or extended without the consent of such Lender and (B)any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects such Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender."
"thereof that might otherwise require the vote of the Required Lenders (or another group of Lenders or all of the Lenders) hereunder in order to include provisions applicable to any such Incremental Term Loan that are substantially consistent with the existing provisions of this Agreement with respect to such matters and to share ratably in the benefits of this Agreement and the other Loan Documents with the Lenders under any such Incremental Term Loan, and (3)to otherwise incorporate the terms applicable to any such Incremental Term Loan (such as the pricing, maturity, fees and other provisions applicable thereto)."
"hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in Section11.3(b)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."
"(ii) The Platform is provided as is and as available. The Agent Parties (as defined below) do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including, without limitation, 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 Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the Agent Parties) have any liability to the Borrower or the other Loan Parties, 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 (whether in tort, contract or otherwise) arising out of any Loan Partys or the Administrative Agents transmission of communications through the Platform. Communications means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed to the Administrative Agent, any Lender or Issuing Lender by means of electronic communications pursuant to this Section, including through the Platform."
"(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 Commitment, all participations in Letters of Credit and Swing Line Loans and the Loans at the time owing to it); provided that (in each case and with respect to any Facility) any such assignment shall be subject to the following conditions:"
"thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lenders rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections3.1, 3.2, 3.5 and 11.3(b)with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lenders having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Sectionshall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section11.7(d)below."
"Notwithstanding the preceding paragraph, any Participant that is a Farm Credit Lender that (1)has purchased a participation in a minimum amount of $5,000,000 on or after the Closing Date, and (2)has been designated as being entitled to be accorded the rights of a voting Participant (a Voting Participant) in a written notice (a Voting Participant Notice) sent by the relevant Lender (including any existing Voting Participant) to the Borrower and the Administrative Agent and (iii)receives, prior to becoming a Voting Participant, the written consent of the Administrative Agent (such Administrative Agent consent to be required only to the extent and under the circumstances it would be required if such Voting Participant were to become a Lender pursuant to an assignment in accordance with Section11.7(b)and such consent is not required for an assignment to an existing Voting Participant), or is specified as a Voting Participant as of the Closing Date, shall be entitled to vote as if such Voting Participant were a Lender on all matters subject to a vote by Lenders, and the voting rights of the selling Lender (including any existing Voting Participant) shall be correspondingly reduced, on a dollar-for-dollar basis. Each Voting Participant Notice shall include, with respect to each Voting Participant, the information that would be included by a prospective Lender in an Assignment and Assumption. Notwithstanding the foregoing, each Farm Credit Lender designated as a Voting Participant in Schedule11.7 shall be a Voting Participant without delivery of a Voting Participant Notice. The selling Lender (including any existing Voting Participant) and the purchasing Voting Participant shall notify the Administrative Agent within three Business Days of any termination, reduction or increase of the amount of, such participation. The Administrative Agent shall be entitled to conclusively rely on information contained in Voting Participant Notices and all other notices delivered pursuant hereto. The voting rights of each Voting Participant are solely for the benefit of such Voting Participant and shall not inure to any assignee or participant of such Voting Participant that is not a Farm Credit Lender."
"(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (i)CERTIFIES THAT NO REPRESENTATIVE, ADMINISTRATIVE 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 (ii)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."
"11.15 FCC and PUC Compliance. Notwithstanding anything to the contrary in this Agreement and the other Loan Documents, no party hereto or thereto shall take any action under this Agreement or the other Loan Documents that would constitute or result in an assignment of any License, or a change of de facto or de jure control of any Loan Party or Subsidiary directly or indirectly holding a License, to the extent that such assignment or change of control would require the prior approval by the FCC or any applicable PUC under the Communications Laws without first obtaining such required approval."
"Upon any action to commence the exercise of remedies hereunder or under the other Loan Documents, each Loan Party hereby undertakes and agrees on behalf of itself, the other Loan Parties, and the Subsidiaries of any Loan Party to cooperate and join with the Administrative Agent, and cause the other Loan Parties and the Subsidiaries of any Loan Party, to cooperate and join with the Administrative Agent, in any application to any Governmental Authority with respect thereto and to provide such assistance in connection therewith as the Administrative Agent may request, including the preparation of, consenting to or joining in of filings and appearances of officers and employees of any Loan Party or any Subsidiary of any Loan Party before such Governmental Authority, in each case in support of any such application made by the Administrative Agent; provided, however, nothing herein shall be construed to require any of the Loan Parties nor any of the Subsidiaries of any Loan Party to, directly or indirectly, violate any terms or conditions of any License. The obligation of the Loan Parties to make all payments required to be made under this Agreement or any other Loan Document shall be absolute and unconditional and independent of any action by the PUC or the FCC with respect to rates and/or disallowance of debt."
"(ii) To the extent set forth above, but only to the extent that the Guarantors Obligations of such Guarantor or the transfers made by such Guarantor under the Collateral Documents to which it is a party, would otherwise be subject to avoidance under any Avoidance Provisions if such Guarantor is not deemed to have received valuable consideration, fair value, fair consideration or reasonably equivalent value for such transfers or obligations, or if such transfers or the Guarantors Obligations of such Guarantor would render such Guarantor insolvent, or leave such Guarantor with an unreasonably small capital or unreasonably small assets to conduct its business, or cause such Guarantor to have incurred debts (or to have intended to have incurred debts) beyond its ability to pay such debts as they mature, in each case as of the time any of such Guarantors Obligations are deemed to have been incurred and transfers made under such Avoidance Provisions, then such Guarantors Obligations shall be reduced to that amount which, after giving effect thereto, would not cause the Guarantors Obligations of such Guarantor (or any other obligations of such Guarantor to Administrative Agent, Lenders and any other Person holding any of the Guaranteed Liabilities or the Guarantors Obligations), as so reduced, to be subject to avoidance under such Avoidance Provisions. This paragraph is intended solely to preserve the rights hereunder of Administrative Agent, Lenders and any other Person holding any of the Guaranteed Liabilities to the maximum extent that would not cause such Guarantors Obligations to be subject to avoidance under any Avoidance Provisions, and neither such Guarantor nor any other Person shall have any right, defense, offset, or claim under this paragraph as against Administrative Agent, Lenders or any other Person holding any of the Guaranteed Liabilities or the Guarantors Obligations that would not otherwise be available to such Person under the Avoidance Provisions."
"12.11 No Stay. Without limitation of any other provision set forth in this ArticleXII, if any declaration of default or acceleration or other exercise or condition to exercise of rights or remedies under or with respect to any Guarantors Obligation or any of the Guaranteed Liabilities shall at any time be stayed, enjoined, or prevented for any reason (including but not limited to stay or injunction resulting from the pendency against any Loan Party or any other Person of a bankruptcy, insolvency, reorganization or similar proceeding), the Guarantors agree that, for the purposes of this ArticleXII and their obligations hereunder, the Guarantors Obligations and the Guaranteed Liabilities shall be deemed to have been declared in default or accelerated, and such other exercise or conditions to exercise shall be deemed to have been taken or met."
"12.15 Joinder. Each Person that shall at any time execute and deliver to the Administrative Agent a Guarantor Joinder shall thereupon irrevocably, absolutely and unconditionally become a party hereto and obligated hereunder as a Guarantor, and all references herein and in the other Loan Documents to the Guarantors or to the parties to this Guaranty shall be deemed to include such Person as a Guarantor hereunder."
" Pay-off and termination of the Amended and Restated Revolving Line of Credit Agreement, dated as of October3, 2011, by and among Borrower, First Hawaiian Bank, as agent, and each of the lenders from time to time party thereto, as amended by that Amendment to Amended and Restated Revolving Line of Credit Agreement dated February29, 2012, Consent and Amendment to Amended and Restated Revolving Line of Credit Agreement dated April22, 2013, the Consent dated as of June6, 2013 and Third Amendment to Amended and Restated Revolving Line of Credit Agreement dated April9, 2015 (as amended to date, the FHB Credit Agreement) will be required simultaneously with the Initial Credit Extension."
" (i)HTSC will pay $25 million over the multi-year construction period, with the majority to be paid at periodic milestones in 2016 and 2017, for a fractional ownership in the system, of which $3.5 million has been paid to date. As part of this project, HTSC has agreed to construct a cable landing station in Makaha, Hawaii, and to provide cable landing services to SEA US and another trans-Pacific system."
"1. I am the [TITLE OF COMPLIANCE OFFICER] of the Borrower, and as such possess the knowledge and authority to certify to the matters set forth in this Compliance Certificate, and hereby certify that the matters set forth below are true and accurate to the best of my present knowledge, information and belief after due inquiry;"
"(5)any extraordinary or non-cash charges (provided, however, that any cash payment or expenditure made with respect to any such non-cash charge shall be subtracted in computing Consolidated EBITDA during the period in which such cash payment or expenditure is made), including, without limitation, any non- cash compensation charge arising from any grant of stock, stock options or other equity-based awards and non-cash pension and post-employment benefit expenses,"
"(14) (A)For the first fiscal quarter ending immediately after the Closing Date, scheduled principal payments and cash interest expense (collectively, Debt Service) shall be calculated for the most recently completed fiscal quarter multiplied by four, (B)for the second full fiscal quarter ending after the Closing Date, Debt Service shall be calculated for the most recently completed two fiscal quarters multiplied by two, and (C)for the third full fiscal quarter ending after the Closing Date, Debt Service shall be calculated for the then most recently completed three fiscal quarters multiplied by 1.33."
"THE BORROWER, THE NEW GUARANTORS AND THE OTHER LOAN PARTIES PARTY HERETO EACH 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 GUARANTOR JOINDER 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 GUARANTOR JOINDER 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 GUARANTOR JOINDER OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER, THE NEW GUARANTORS AND THE OTHER LOAN PARTIES PARTY HERETO OR THEIR RESPECTIVE PROPERTIES IN THE COURTS OF ANY JURISDICTION."
"The Borrower, the New Guarantors and the other Loan Parties party hereto each hereby irrevocably and unconditionally waives, to the fullest extent permitted by 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 Guarantor Joinder or any other Loan Document in any court referred to in the immediately preceding paragraph. 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 and agrees not to assert any such defense."
"The undersigned, the Secretary of (a)HAWAIIAN TELCOM COMMUNICATIONS,INC., a Delaware corporation (the Borrower), (b)HAWAIIAN TELCOM HOLDCO,INC., a Delaware corporation (the Parent), (c)HAWAIIAN TELCOM,INC., a Hawaii corporation (HTI), (d)HAWAIIAN TELCOM SERVICES COMPANY,INC., a Delaware corporation (HTSC), (e)SYSTEMMETRICS CORPORATION, a Hawaii corporation (SystemMetrics and clauses (b)through (e), inclusive, collectively, the Guarantors), and (f)WAVECOM SOLUTIONS CORPORATION, a Hawaii corporation (WC), as a negative pledgor (WC, together with the Borrower, and the Guarantors, collectively, the Loan Parties), hereby certifies as follows on behalf of the Loan Parties to COBANK, ACB, in its capacity as administrative agent (the Administrative Agent), in connection with (i)the Credit Agreement, dated as of the Execution Date (the Credit Agreement), among the Borrower, the Guarantors party thereto as of the date hereof, the Administrative Agent and the other Lenders identified therein, (ii)the Pledge and Security Agreement, dated as of the Closing Date (the Pledge and Security Agreement), made by the Borrower and the Guarantor in favor of the Administrative Agent for the benefit of the Secured Parties (all other capitalized terms used but not defined herein have the meanings given to them in the Credit Agreement and the Pledge and Security Agreement), and (iii)the Negative Pledge Agreement, dated as of the Closing Date, made by WC in favor of the Administrative Agent for the benefit of the Secured Parties, as follows:"
"Subject to the provisions of the Credit Agreement, payments of both principal and interest shall be made without set-off, counterclaim or other deduction of any nature to the Administrative Agent unless otherwise directed in writing by the Administrative Agent, and in lawful money of the United States of America in immediately available funds."
"This Swing Line Note is the Swing Line Note referred to in, and is entitled to the benefits of, the Credit Agreement and the other Loan Documents, including the representations, warranties, covenants, conditions, security interests and liens contained or granted therein. The Credit Agreement among other things contains provisions for acceleration of the maturity hereof upon the happening of certain stated events and also for prepayments, in certain circumstances, on account of principal hereof prior to maturity upon the terms and conditions therein specified."
"This Swing Line 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-1 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."
"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 [aggregate] unpaid principal balance of [all][the] Incremental Term Loan[s] under Tranche No.[] of the Incremental Term Loan Facility 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."
"The Borrower shall pay interest on the outstanding unpaid principal balance hereof from the date hereof at the rate or rates per annum specified by the Borrower pursuant to, or as otherwise provided in, the Credit Agreement. If any payment or action to be made or taken hereunder shall be stated to be or become due on a day which is not a Business Day, such payment or action shall be made or taken on the next following Business Day, unless otherwise provided in the Credit Agreement, and such extension of time shall be included in computing interest or fees, if any, in connection with such payment or action. Upon the occurrence and during the continuation of an Event of Default, subject to the terms of the Credit Agreement, the Borrower shall pay interest on the outstanding principal balance of this Incremental Term Loan Note at the rates of interest applicable following the occurrence of an Event of Default as determined in accordance with the Credit Agreement."
"This Incremental Term Loan Note is one of the Incremental Term Loan Notes referred to in, and is entitled to the benefits of, the Credit Agreement and the other Loan Documents, including the representations, warranties, covenants, conditions, security interests and liens contained or granted therein. The Credit Agreement among other things contains provisions for acceleration of the maturity hereof upon the happening of certain stated events and also for prepayments, in certain circumstances, on account of principal hereof prior to maturity upon the terms and conditions therein specified."
"Except for any notice which cannot be waived by the Borrower under applicable Law, the Borrower waives presentment, demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Incremental Term Loan Note, the Credit Agreement and the other Loan Documents."
"This Incremental Term Loan 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 Incremental Term Loan 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 Incremental Term Loan 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."
"3. In connection with the issuance of this Certificate, each of the undersigned has reviewed and relied upon (i)the audited financial statements of the Parent and its Subsidiaries for the fiscal year ended [December31, 20] and (ii)unaudited quarterly financial statements of the Parent and its Subsidiaries for the fiscal quarter ended [], and each of the undersigned has no reason to believe that such financial statements are not a fair and reasonable presentation as of the dates thereof of the financial condition of the Loan Parties and their respective Subsidiaries. In addition, each of the undersigned has reviewed such other information that he has deemed necessary and appropriate."
"The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS FormW-8BEN or IRS FormW-BEN-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 the Borrower and the Administrative Agent, and (2)the undersigned shall have at all times furnished the 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."
"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 participation 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."
"The undersigned, HAWAIIAN TELCOM COMMUNICATIONS,INC., a Delaware corporation (the Borrower), refers to that certain Credit Agreement dated as of February24, 2017 (as amended, modified, supplemented, extended or restated from time to time, the Credit Agreement) by and 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 assigned to such terms in the Credit Agreement."
"(a) 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"
"(d) Officers Certificate. The Administrative Agent shall have received a certificate from a Compliance Officer of the Borrower, on behalf of the Borrower and in form and substance reasonably satisfactory to the Administrative Agent, certifying, as of the date of the Tranche No.[] Incremental Term Loan, certifying as to the representations and warrants set forth in Section8 of this Agreement and demonstrating on Annex 1 attached hereto the calculations supporting Section8(f)of this Agreement."
"11. Reaffirmation. Each Loan Party hereby confirms and agrees (a)to the terms and provisions of this Agreement, (b)that its obligations under the Credit Agreement, the Collateral Documents and the other Loan Documents to which it is a party is and shall continue to be in full force and effect, and (c)as to the Guarantors, that the Guarantors Obligations guaranteed by and the Secured Obligations secured by each such applicable Loan Document include any and all Secured Obligations of the Borrower and the other Loan Parties to the Secured Parties under the Credit Agreement with respect to the Tranche No.[] Incremental Term Loan."
"14. Counterparts. This Agreement may be executed in any number of counterparts and by the various parties hereto 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 contract. Delivery of an executed counterpart of this Agreement by an electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement."
"Equity Interests shall mean, collectively, (A)all securities, whether certificated or uncertificated, (B)all of the issued and outstanding shares, interests or other equivalents of capital stock of any corporation, whether voting or non-voting and whether common or preferred, (C)all partnership, Joint Venture, limited liability company or other equity interests in any Person not a corporation, (D)all options, warrants and other rights to acquire, and all securities convertible into, any of the foregoing, (E)all rights to receive interest, income, dividends, distributions, returns of capital and other amounts (whether in cash, securities, property, or a combination thereof) with respect to any of the foregoing, (F)all additional stock, warrants, options, securities, interests and other property, paid or payable or distributed or distributable, with respect to any of the foregoing (but subject to the provisions of Section5.3), (G)all rights of access to the books and records of any such Person, and (H)all other rights, powers, privileges, interests, claims and other property in any manner arising out of or relating to any of the foregoing, of whatever kind or character (including any tangible or intangible property or interests therein), and whether provided by contract or granted or available under applicable Law in connection therewith, including, such Grantors right to vote and to manage and administer the business of any such Person pursuant to any applicable Organizational Document, stockholders agreement or other agreement creating, governing or evidencing any Equity Interests and to which the holder of such Equity Interests is a party or otherwise bound or to which such Equity Interests are subject, together with all certificates, instruments and entries upon the books of financial intermediaries evidencing any of the foregoing."
"Fiber Optic Submarine Cable Systems shall mean, collectively, all of each Grantors rights, title and interest in fiber optic submarine cable systems (whether in domestic or international waters and whether underwater, above water, underground or above ground and whether a fractional or whole interest) to the extent such right, title and interest is not excluded from Collateral pursuant to Section2.3 of this Agreement and clauses (g)and (h)of the definition of Excluded Assets, including, without limitation, all embodying, connecting, relating or resulting fibers, cables, materials, parts, tools, dies, jigs, plans, information, and other Goods, Fixtures, Documents, Contracts,Instruments, Accounts, Letters of Credit, Letter-of-Credit Rights, Supporting Obligations and Proceeds of the foregoing to the extent not excluded from Collateral pursuant to Section2.3 of this Agreement and clauses (g)and (h)of the definition of Excluded Assets."
"1.2 Other Terms and Rulesof Construction. Capitalized terms used herein without definition shall have the meanings given to them in the Credit Agreement. The rulesof construction set forth in Sections 1.2 through 1.9 of the Credit Agreement shall apply to this Agreement. Unless otherwise defined herein or in the Credit Agreement, any terms in this Agreement that are defined in the Uniform Commercial Code shall have the meaning provided in the Uniform Commercial Code, as amended and in effect from time to time. For avoidance of doubt, it is expressly understood and agreed that, to the extent the Uniform Commercial Code is revised subsequent to the date hereof such that the definition of any of the terms included in the description of Collateral is changed, the parties hereto desire that any property that is included in such changed definitions that would not otherwise be included in such grant on the date hereof, be included in such grant immediately upon the effective date of such revision, to the extent a security interest in such personal property may be granted under such revised Uniform Commercial Code (and, to the extent effective under Law, such security interest will attach immediately without further action)."
"(E) Each Grantor shall notify the Administrative Agent promptly if it knows or has reason to know that any Material Copyright, Patent or Trademark used in the conduct of such Grantors business may become abandoned or dedicated to the public, or of any material adverse determination or development (including the institution of, or any such determination or development in, any proceeding in the U.S. Copyright Office, U.S. Patent and Trademark Office or any court) regarding (i)such Grantors ownership of any Material Copyright, Patent, or Trademark, its right to register the same, or to keep and maintain or license the same or (ii)the underlying intellectual property of such Grantors Material Copyright Licenses, Patent Licenses, or Trademark Licenses (other than under licenses of commercially available software)."
"(I) Upon request of the Administrative Agent, each Grantor shall use commercially reasonable efforts to obtain all requisite consents or approvals from the licensor of each Material IP License included within the Copyright Collateral, Patent Collateral, Trademark Collateral or Domain Name Collateral useful in such Grantors business or otherwise of material commercial value to effect the collateral assignment of all of such Grantors right, title and interest thereunder to the Administrative Agent or its designee."
"(B) Subject to Section2.3, if any Grantor acquires any additional Equity Interests in any Person, the same shall be automatically deemed to be Equity Interests, and to be pledged to the Administrative Agent pursuant to Section2.1, and such Grantor will forthwith pledge and deposit the same with the Administrative Agent (or deposit the same in a Securities Account subject to a control agreement pursuant to Section4.15) and deliver to the Administrative Agent any certificates or instruments evidencing the same, together with the endorsement of such Grantor (in the case of any promissory notes or other Instruments), undated stock powers (in the case of Equity Interests evidenced by certificates) or other necessary instruments of transfer or assignment, duly executed in blank and in form and substance reasonably satisfactory to the Administrative Agent, together with such other certificates and instruments as the Administrative Agent may reasonably request (including Uniform Commercial Code financing statements or appropriate amendments thereto), and consistent with the requirements of Sections 6.1 and 6.10 of the Credit Agreement deliver to the Administrative Agent notice of such additional Equity Interest, an amended AnnexA including such Equity Interests, and a fully completed and duly executed amendment to this Agreement in the form of ExhibitA (each, a Pledge Amendment) or a Guarantor Joinder, as applicable (in each case, in form and substance acceptable to the Administrative Agent in its sole discretion), in respect thereof. Each Grantor hereby authorizes the Administrative Agent to attach each such annex, Pledge Amendment or Guarantor Joinder to this Agreement, and agrees that all such Collateral listed in any such notice or on any such annex, Pledge Amendment or Guarantor Joinder shall for all purposes be deemed Collateral hereunder and shall be subject to the provisions hereof; provided that the failure of any Grantor to execute and deliver any such notice, annex, Pledge Amendment or Guarantor Joinder with respect to any such additional Collateral as required hereinabove shall not impair the security interest of the Administrative Agent in such Collateral or otherwise adversely affect the rights and remedies of the Administrative Agent hereunder with respect thereto."
"(D) Pursuant to Section6.11 of the Credit Agreement, CoBanks Pro Rata Share of the Loans and other Secured Obligations due to CoBank shall be secured by a statutory first lien on the CoBank Equities, but such CoBank Equities shall not constitute security for the Secured Obligations due to any Secured Party other than CoBank."
"(F) To enter and remain upon the premises of any Grantor, subject to the terms of any lease in the case of premises leased by a Grantor, and take possession of all or any part of the Collateral, with or without judicial process; to use the materials, services, books and records of any Grantor for the purpose of liquidating or collecting the Collateral, whether by foreclosure, auction or otherwise; and to remove the same to the premises of the Administrative Agent or any designated agent for such time as the Administrative Agent may desire, in order to effectively collect or liquidate the Collateral;"
"(H) To sell, resell, assign and deliver, in its sole discretion, all or any of the Collateral, in one or more parcels, on any securities exchange on which any Equity Interests constituting part of the Collateral may be listed, at public or private sale, at any of the Administrative Agents offices or elsewhere, for cash, upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Administrative Agent may deem satisfactory. If any of the Collateral is sold by the Administrative Agent upon credit or for future delivery, the Administrative Agent shall not be liable for the failure of the purchaser to purchase or pay for the same and, in the event of any such failure, the Administrative Agent may resell such Collateral. In no event shall any Grantor be credited with any part of the Proceeds of sale of any Collateral until and to the extent cash payment in respect thereof has actually been received by the Administrative Agent. Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right of whatsoever kind, including, any equity or right of redemption of any Grantor, and each Grantor hereby expressly waives all rights of redemption, stay or appraisal, and all rights to require the Administrative Agent to marshal any assets in favor of such Grantor or any other party or against or in payment of any or all of the Secured Obligations, that it has or may have under any Law now existing or hereafter adopted. No demand, presentment, protest, advertisement or notice of any kind (except any notice required by Law, as referred to below), all of which are hereby expressly waived by each Grantor, shall be required in connection with any sale or other disposition of any part of the Collateral. If any notice of a proposed sale or other disposition of any part of the Collateral shall be required under Law, the Administrative Agent shall give the applicable Grantor at least ten (10)days prior notice of the time and place of any public sale and of the time after which any private sale or other disposition is to be made, which notice each Grantor agrees is commercially reasonable. the Administrative Agent shall not be obligated to make any sale of Collateral if it shall determine"
"(J) Notwithstanding anything to the contrary in this Agreement, (i)the Administrative Agent will not take any action pursuant to this Agreement that would constitute or result in any assignment or transfer of control of any License if such assignment or transfer of control would require under then existing Law (including the written rules, regulations and policies of the FCC or any PUC) the prior approval of the FCC or any PUC, without first obtaining such approval; and (ii)the Administrative Agent agrees that, unless the Administrative Agent elects to proceed under Section9-620 of the Uniform Commercial Code following such Event of Default and neither any Grantor nor any other Person having standing to object thereto gives proper notice of its objection to such notice, there will be either a private or public sale of the Equity Interests pledged hereunder; and (iii)prior to the exercise of voting rights by the purchaser at any such sale, the prior consent of the FCC or any PUC will be obtained if required by Law."
"(B) Each Grantor shall remain liable to the extent of any deficiency between the amount of all Proceeds realized upon sale or other disposition of the Collateral pursuant to this Agreement that are applied in repayment of the Obligations and the aggregate amount of the sums referred to in Section2.2. Upon any sale of any Collateral hereunder by the Administrative Agent (whether by virtue of the power of sale herein granted, pursuant to judicial proceeding, or otherwise), the receipt of the Administrative Agent or the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral 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 the Administrative Agent or such officer or be answerable in any way for the misapplication thereof."
"6.6 Grantors Remain Liable. Notwithstanding anything herein to the contrary, (A)each Grantor shall remain liable under all Contracts to which it is a party included within the Collateral (including all Investment Agreements) to perform all of its obligations thereunder to the same extent as if this Agreement had not been executed, (B)the exercise by the Administrative Agent of any of its rights or remedies hereunder shall not release any Grantor from any of its obligations under any of such Contracts, and (C)except as specifically provided for hereinbelow, neither the Administrative Agent nor any other Secured Party shall have any obligation or liability by reason of this Agreement under any of such Contracts, nor shall the Administrative Agent or any other Secured Party be obligated to perform any of the obligations or duties of any Grantor thereunder or to take any action to collect or enforce any claim for payment assigned hereunder. This Agreement shall not in any way be deemed to obligate the Administrative Agent or any other Secured Party or any purchaser at a foreclosure sale under this Agreement to assume any of a Grantors obligations, duties or liabilities under any Investment Agreement, including any Grantors obligations, if any, to manage the business and affairs of the applicable partnership, Joint Venture, limited liability company or other issuer (collectively, the Partner"
"6.7 Waivers. Each Grantor, to the greatest extent not prohibited by Law, hereby (A)agrees that it will not invoke, claim or assert the benefit of any Law now or hereafter in effect (including any right to prior notice or judicial hearing in connection with the Administrative Agents possession, custody or disposition of any Collateral or any appraisal, valuation, stay, extension, moratorium or redemption law), or take or omit to take any other action, that would reasonably be expected to have the effect of delaying, impeding or preventing the exercise of any rights and remedies with respect to the Collateral, the absolute sale of any of the Collateral or the possession thereof by any purchaser at any sale thereof, and waives the benefit of all such Law and further agrees that it will not hinder, delay or impede the execution of any power granted hereunder to the Administrative Agent, but that it will permit the execution of every such power as though no such Law was in effect, (B)waives all rights that it has or may have under any Law now existing or hereafter adopted to require the Administrative Agent to marshal any Collateral or other assets in favor of such Grantor or any other party or against or in payment of any or all of the Secured Obligations, and (C)waives all rights that it has or may have under any Law now existing or hereafter adopted to demand, presentment, protest, advertisement or notice of any kind (except notices expressly provided for herein)."
"6.8 Restoration of Parties. In the event the Administrative Agent shall have proceeded to enforce any right or remedy under this Agreement, and such proceedings are discontinued or abandoned for any reason, then the Grantors and the Administrative Agent shall immediately be restored to their former positions and rights hereunder, and all rights, powers and remedies of the Administrative Agent shall continue as if no such proceeding had taken place."
"and the other Secured Parties to adequately realize the full amount of the Secured Obligations from the Collateral and that the breach of this Section7.2(C)by any Grantor would result in irreparable harm to the Administrative Agent and the other Secured Parties for which monetary damages are not readily ascertainable and which might not adequately compensate the Administrative Agent and the other Secured Parties. Therefore in addition to any remedy that the Administrative Agent and the other Secured Parties may have at law or in equity, the Administrative Agent and the other Secured Parties shall have the remedy of specific performance by the Grantors of the provisions of this Section7.2(C), and each Grantor hereby waives, and agrees to waive, any claim or defense that the Administrative Agent and the other Secured Parties would have an adequate remedy at law for the breach by it of this Section7.2(C)and any requirement for posting of a bond or other certificate. In connection with taking any action pursuant to this Agreement (including determining whether an approval of the FCC or any applicable PUC is required in connection therewith), the Administrative Agent shall be entitled to rely on the advice of regulatory counsel experienced in giving such advice selected by the Administrative Agent (whether or not the advice rendered is ultimately determined to be accurate)."
"(D) If an Event of Default shall have occurred and be continuing, each Grantor shall take any action that the Administrative Agent may reasonably request in order to transfer or assign, or both, to the Administrative Agent, or to such one or more third parties as the Administrative Agent may designate, or to a combination of the foregoing, any License held or utilized by such Grantor, subject to the prior approval of the FCC or any PUC, if required. Alternatively, if an Event of Default shall have occurred and be continuing, the Administrative Agent is empowered, to the extent permitted by Law, to request the appointment of a receiver from any court of competent jurisdiction. Such receiver may be instructed by the Administrative Agent to seek from the FCC or the PUC consent to an involuntary transfer of control of any Grantor or assignment, or both, of such License for the purpose of seeking a bona fide purchaser to whom control of assets used in the provision of Communications System related services will ultimately be transferred or assigned. Each Grantor hereby agrees to authorize such an involuntary transfer of control or assignment, or both, upon the request of the receiver so appointed and, if any Grantor shall refuse to authorize the transfer, its approval may be required by the court."
"8.3 Grantors Obligations Absolute. Each Grantor agrees that its obligations hereunder, and the security interest granted to and all rights, remedies and powers of the Administrative Agent hereunder, are irrevocable, absolute and unconditional and shall not be discharged, limited or otherwise affected by reason of any of the following, whether or not such Grantor has knowledge thereof:"
"(A) any change in the time, manner or place of payment of, or in any other term of, any Secured Obligations, or any amendment, modification or supplement to, restatement of, or consent to any rescission or waiver of or departure from, any provisions of the Credit Agreement (including ArticleII thereof), any other Loan Document, any Secured Hedge, any Secured Bank Product or any agreement or instrument delivered pursuant to any of the foregoing;"
"8.5 Continuing Security Interest; Term; Successors and Assigns; Assignment; Termination and Release; Survival. This Agreement shall create a continuing security interest in the Collateral and shall secure the payment and performance of all of the Secured Obligations as the same may arise and be outstanding at any time and from time to time from and after the date hereof, and shall (A)remain in full force and effect until the Payment in Full, (B)be binding upon and enforceable against each Grantor and its successors and assigns (provided, however, that no Grantor may sell, assign or transfer any of its rights, interests, duties or obligations hereunder without the prior written consent of the Lenders as provided in Section11.1 of the Credit Agreement) and (C)inure to the benefit of the Secured Parties and be enforceable by the Administrative Agent and its successors and assigns, subject to the limitations on assignment in the Credit Agreement. Upon any Disposition by any Grantor of any Collateral in a transaction permitted hereunder or under or pursuant to the Credit Agreement, or any amendment or waiver thereof, or any other applicable Loan Document, the Lien and security interest created by this Agreement in and upon such Collateral shall be automatically released, and upon the Payment in Full, this Agreement and the Lien and security interest created hereby shall terminate; and in connection with any such release or termination, the Administrative Agent, at the request and expense of the applicable Grantor, will execute and deliver to such Grantor such documents and instruments evidencing such release or termination as such Grantor may reasonably request and will assign, transfer and deliver to"
"8.8 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."
"(B) Each of the Grantors and the Administrative Agent hereby irrevocably and unconditionally waives, to the fullest extent permitted by 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 this Section8.10. 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 and agrees not to assert any such defense."
"8.11 Waiver of Jury Trial. EACH OF THE GRANTORS AND THE ADMINISTRATIVE AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAYHAVE 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."
"8.12 Counterparts; Effectiveness. This Agreement 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. This Agreement and the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. This Agreement shall become effective when it shall have been executed by the Administrative Agent and each of the Grantors, and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature pageof this Agreement by facsimile or electronic (i.e., pdf or tif) format shall be effective as delivery of a manually executed counterpart of this Agreement."
"WHEREAS, [NAME OF GRANTOR] (Grantor) is the owner of the trademarks and service marks listed on ScheduleA attached hereto, which marks are registered or have pending registrations in the United States Patent and Trademark Office as set forth on ScheduleA attached hereto (all such trademarks, service marks, registrations and applications, collectively, the Trademarks) and is the owner of the patents listed on ScheduleA attached hereto, which patents are registered or have pending applications in the United States Patent and Trademark Office as set forth on ScheduleA attached hereto (all such patents, registrations and applications, collectively, the Patents); and"
"(b) The Credit Agreement, as specifically amended by this Amendment, and each of the other Loan Documents are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Without limiting the generality of the foregoing, the Collateral Documents, all of the Collateral described therein, and all of the Liens on the Collateral granted therein, in each case do and shall continue to secure the payment of all Secured Obligations of the Borrower under the Loan Documents, in each case as amended by this Amendment."
"(d) To the extent permitted by law, each party to this Amendment hereby irrevocably waives personal service of any and all process upon it and agrees that all such service of process may be made by registered mail (return receipt requested) directed to it at its address for notices as provided for in Section9.01 of the Credit Agreement. Nothing in this Amendment or any other Loan Document will affect the right of any party to this Amendment to serve process in any other manner permitted by law."
"| | | | | | ---|---|---|---|---|---|--- |  | |  | BORROWER: | | |  | |  | NAVISTAR, INC. | | | |  | |  | By: |  | /s/ Anthony Aiello |  | |  | Name: |  | Anthony Aiello |  | |  | Title: |  | Assistant Treasurer [Signature Page to Amendment No. 5]"
"This FORBEARANCE AGREEMENT AND SECOND AMENDMENT TO SIXTH AMENDED AND RESTATED CREDIT AGREEMENT (this Amendment), made effective as of February27, 2017, is by and among Roadrunner Transportation Systems, Inc., a Delaware corporation (Borrower), the Lenders party to the Credit Agreement described below (the Lenders), and U.S. BANK NATIONAL ASSOCIATION, a national banking association, one of the Lenders and as administrative agent for the Lenders (in such capacity, the Agent)."
"(d)The Loan Documents executed by Borrower are legal, valid and binding obligations of Borrower and enforceable against Borrower in accordance with their respective terms without any defenses, deductions, offsets or counterclaims, subject to limitations as to enforceability which might result from bankruptcy, insolvency, moratorium and other similar laws affecting creditors rights generally and subject to limitations on the availability of equitable remedies."
"4.1.Other than to the extent set forth herein, the Lenders agree that they will forbear from exercising the remedies available to them under the Loan Documents to the extent such remedies arise exclusively from the occurrence of the Existing Events of Default, until the earliest to occur of the events or dates set forth in Section4.2 (the Forbearance Period), subject to the following limitations:"
"(d)Revolving Loans will only be made to the extent (y)the Cash Flow Forecast (subject to the variance permitted pursuant to Section6.3 of this Amendment) indicates a need for such Revolving Loans to pay expenses then due or about to become due, and (z)an Authorized Officer certifies to the Lenders that such Revolving Loans are necessary to pay expenses then due or about to become due."
"4.3.Effect of Forbearance Termination Event. Upon the occurrence of a Forbearance Termination Event, the Lenders shall be entitled to exercise any and all rights and remedies available under the Loan Documents, under this Amendment, under any other agreement between Borrower and the Lenders, at law or in equity without further notice to Borrower, including, without limitation, the right to cause the Loans to"
"5.2.Borrower shall have delivered to Agent 13-week cash flow forecasts (the Cash Flow Forecast), with the week ending February10, 2017 being the first week, in reasonable detail, representing the Credit Parties good faith projections for the ensuing 13-week period, which shall be certified by an Authorized Officer as being the most accurate projections available, all in form and substance satisfactory to the Agent."
"due and payable as provided in the Credit Agreement, and Net Book Balance shall mean the aggregate amount of cash, Cash Equivalent Investments and similar liquid assets held or owned by the Credit Parties net of any outstanding checks or other transactions not otherwise reflected in the bank account balances of the Credit Parties. The forbearance fee described in subsection (d)of this Section6.1 shall be fully earned on the effectiveness of the Forbearance Agreement and shall be secured by all of the Collateral."
"(a)On or before March3, 2017, consolidated and consolidating internal financial statements of the Borrower and its Subsidiaries as of January31, 2017 and for the month then ended, consisting of a balance sheet and statements of operations and cash flow, together with reconciled accounts receivable and accounts payable agings as of the end of such month and a summary of material variances, all in form and content acceptable to the Agent."
"6.3.Adherence to Cash Flow Forecast. The Credit Parties will not permit their total disbursements or requested Revolving Loans and Letters of Credit, calculated on a cumulative basis as of the end of each week, to exceed the amount set forth in the initial Cash Flow Forecast by 10%; provided that if such variance does exceed 10%, such variance shall not constitute a Forbearance Termination Event unless the Required Lenders elect, in writing, to designate such variance as a Forbearance Termination Event."
"7.3.Reassertion of Representations and Warranties. Borrower hereby represents that on and as of the date hereof and after giving effect to this Amendment (a)except as set forth in Section3.1 hereof, all of the representations and warranties in the Credit Agreement are true, correct, and complete in all material respects, in each case as of the date hereof as though made on and as of such date, except (i)for changes permitted by the terms of the Credit Agreement and (ii)to the extent that any such representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date, (b)there will exist no Default or Event of Default under the Credit Amendment as amended by this Amendment on such date except for the Existing Events of Default, (c)Borrower and each Credit Party is entering into this Amendment freely and voluntarily with the advice of legal counsel of its own choosing, (d)Borrower and each Credit Party has freely and voluntarily agreed to the undertakings set forth in this Amendment, and (e)the terms and conditions of this Amendment do not pose a material hardship on Borrower or such Credit Party."
"Section8.Covenant to Pursue Full Repayment. Borrower acknowledges that the Lenders have informed Borrower that the Lenders are not required to extend the Forbearance Period but the Lenders may, in their sole discretion, decide to extend their forbearance if they deem it is in the Lenders best interest to do so. The further extension beyond the Forbearance Period, if any, by the Lenders shall only be effective if contained in a writing executed by the Lenders required pursuant to Section8.3 of the Credit Agreement. From and after the Forbearance Termination Date, each of the Credit Parties hereby agree to cooperate with the Lenders to assist the Lenders in obtaining payment in full of the Obligations, including, without limitation, in any foreclosure of the Lenders liens on and security interests in the Collateral in accordance with the terms of the Loan Documents."
"Section11.Severability. Whenever possible, each provision of this Amendment and any other statement, instrument, or transaction contemplated hereby or thereby or relating hereto or thereto shall be interpreted so as to be effective, valid, and enforceable under the applicable law of any jurisdiction, but if any provision of this Amendment, or any other statement, instrument, or transaction contemplated hereby or thereby or relating hereto or thereto is held to be prohibited, invalid, or unenforceable under the applicable law, such provision shall be ineffective in such jurisdiction only to the extent of such prohibition, invalidity, or unenforceability, without invalidating or rendering unenforceable the remainder of such provision or the remaining provisions of this Amendment, or any other statement, instrument, or transaction contemplated hereby or thereby or relating hereto or thereto in such jurisdiction, or affecting the effectiveness, validity, or enforceability of such provision in any other jurisdiction."
"/s/ Roger A. Pillsbury Name: Roger A. Pillsbury Title: Managing Director 70 West Madison Street Chicago, IL 60602 Attention: Patrice Nwaiwu Telephone: (312) 564-1887 FAX: (312) 564-1794 743 N. Water Street Milwaukee, WI 53202 Attention: Roger A. Pillsbury Telephone: (414) 291-7165 FAX: (414) 291-7171 [Signature Page to Forbearance Agreement and Second Amendment to"
" | Re: | Sixth Amended and Restated Guaranty dated as of September24, 2015 (the Guaranty) and Sixth Amended and Restated Pledge and Security Agreement and Irrevocable Proxy dated as of September24, 2015 (the Security Agreement), issued by the undersigned and certain other parties in favor of the Lenders (defined below) and U.S. Bank National Association, as agent for the Lenders (the Agent). ---|---|--- The undersigned hereby acknowledge and affirm the terms of the Forbearance Agreement and Second Amendment to Sixth Amended and Restated Credit Agreement (the Amendment) dated concurrently herewith by and between Roadrunner Transportation Systems, Inc. (the Borrower), the Agent, the lenders (the Lenders) party to the Credit Agreement (as defined in the Amendment), and certain other parties, and to the execution and delivery of the Amendment by the Borrower, agree that the obligations of the Borrower to the Agent and the Lenders under the Credit Agreement as amended by the Amendment are Obligations within the meaning of the Security Agreement and the Guaranty and such obligations are and continue to be secured by the security interest granted by each of the undersigned in the Security Agreement, agree to the releases set forth in Section7.1 of the Amendment, and make representations and warranties set forth in Section7.5 of the Amendment. All references to the Credit Agreement in the Guaranty and the Security Agreement shall constitute references to the Credit Agreement as amended by the Amendment, and as the same may be further amended, restated, or otherwise modified from time to time. The undersigned confirm to the Agent and the Lenders that all of the terms, conditions, provisions, agreements, requirements, promises, obligations, duties, covenants, and representations of the undersigned under the Security Agreement and Guaranty, and any and all other documents and agreements entered into with respect to the obligations under the Credit Agreement, as modified by the Amendment, are hereby ratified and affirmed in all respects by the undersigned."
"1.5 Lien Notes Indenture means that certain Indenture dated as of March15, 2017, among the Borrower, the Guarantors (as defined therein), Wilmington Trust Company, as trustee and Wilmington Trust, National Association, as collateral trustee, with respect to the issuance of the 1.5 Lien Notes, as amended, restated, refinanced, replaced, supplemented or otherwise modified from time to time in accordance with the requirements thereof and of this Agreement."
"1.75 Lien Credit Agreement means that certain 1.75 Lien Term Loan Credit Agreement, dated as of March15, 2017, among the Borrower, the Guarantors party thereto from time to time, the lenders party thereto from time to time, Wilmington Trust, National Association, as collateral agent, and Wilmington Trust, National Association, as administrative agent, as amended, restated, refinanced, replaced, supplemented or otherwise modified from time to time in accordance with the requirements thereof and of this Agreement."
"Consolidated Interest Expense means, for any period, without duplication, the sum of (a)all cash interest paid or accrued by the Borrower and its Restricted Subsidiaries, on a consolidated basis, in respect of Indebtedness of any such Person, including all interest fees and costs payable with respect to the obligations related to such Indebtedness (other than fees and costs which may be capitalized as transaction costs in accordance with GAAP) and the interest component of Capital Lease Obligations, all as determined in accordance with GAAP plus (b)all cash interest paid in connection with Indebtedness permitted hereunder to the extent that such payments are not accounted for as interest expense pursuant to Accounting Standards Codification 470-60 or another applicable codification."
"Material Indebtedness means Indebtedness under the Senior Notes, the 1.5 Lien Notes, 1.75 Lien Debt, Second Lien Debt and Third Lien Debt (and, in each case, any Permitted Refinancing thereof) and any other Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more Swap Agreements, of the Borrower or any one or more of the Restricted Subsidiaries in an aggregate principal amount exceeding $10,000,000. For purposes of determining Material Indebtedness, the principal amount of the obligations of the Borrower or any Guarantor 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 Guarantor would be required to pay if such Swap Agreement were terminated at such time."
"(b) any Second Lien Debt and/or any Third Lien Debt, in whole or in part, from time to time, including the refinancing or replacement of any Second Lien Debt with the issuance of 1.75 Lien Debt in exchange for Second Lien Debt; provided that (i)such Permitted Refinancing is permitted pursuant to the Intercreditor Agreement (including Section4.04 thereof), (ii)the principal amount of such Permitted Refinancing (or if such Permitted Refinancing is issued at a discount, the discounted principal amount of such Permitted Refinancing) does not result in the principal amount of such Indebtedness exceeding the amount permitted under Section7.01(h) (plus the amount of any premiums, accrued and unpaid interest, Indebtedness consisting of additional 1.75 Lien Debt issued for accrued interest thereon paid-in-kind, fees and expenses incurred in connection therewith) and (iii)such Permitted Refinancing does not provide for any scheduled principal repayment, mandatory redemption or payment of a sinking fund obligation prior to a date that is at least one hundred eighty (180)days after the Revolving Maturity Date (except for any mandatory redemption or offer to redeem such Indebtedness, in each case, required as a result of asset sales, events of loss, customary acceleration rights after an event of default or the occurrence of a Change of Control under and as defined in the applicable 1.75 Lien Debt Documents);"
"Unrestricted Subsidiary means (a)any Subsidiary that at the time of determination shall be designated an Unrestricted Subsidiary by the Board of Directors of the Borrower in the manner provided below, (b)any Subsidiary of an Unrestricted Subsidiary, (c)EBG Acquisition and any of its Subsidiaries, (d)Bonchasse Land Company, LLC, a Louisiana limited liability company and any of its Subsidiaries, (e)the Marcellus JV Operator and any of its Subsidiaries, (f)the Marcellus Midstream Owner and any of its Subsidiaries and (g)PCMWL, LLC, Moran Minerals, LLC and Moran Land Company, LLC. The Board of Directors of the Borrower may designate any Subsidiary (including any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries at the time of such designation or at any time thereafter"
"(o) Indebtedness of the Credit Parties pursuant to the 1.5 Lien Notes issued on the Seventh Amendment Effective Date (and any Permitted Refinancing thereof); provided that, the aggregate principal amount of such Indebtedness does not exceed $300,000,000 at any time (plus unpaid accrued interest and premium thereon and underwriting discounts, defeasance costs, fees, commissions, expenses and Indebtedness consisting of additional 1.5 Lien Notes, if any, issued for accrued interest thereon paid-in-kind)."
"that, both before and immediately after giving effect to any Disposition of the South Texas Properties, the Borrower shall be in pro forma compliance with the financial covenant set forth in Section7.11(c); provided further that, the Credit Parties may not sell, transfer, lease, exchange, abandon or otherwise Dispose of (in one transaction or a series of related transactions) all or substantially all of the Borrowing Base Properties (whether pursuant to a Disposition of Equity Interests of a Restricted Subsidiary or otherwise) without the prior written consent of all of the Lenders;"
"SECTION 3. Conditions to Effectiveness of Amendment Agreement and Occurrence of Seventh Amendment Effective Date. This Amendment Agreement, including the amendments to the Original Credit Agreement specified in Section2 hereof, shall become effective on the date on which each of the following conditions shall have been satisfied or waived (such date, the Seventh Amendment Effective Date):"
"5.2 FATCA. From and after the Seventh Amendment Effective Date, the Borrower shall indemnify the Administrative Agent, and hold it harmless from, any and all losses, claims, damages, liabilities and related expenses, including Taxes and the fees, charges and disbursements of any counsel for any of the foregoing, arising in connection with the Administrative Agents treating, for purposes of determining withholding Taxes imposed under FATCA, this Amendment as qualifying as a grandfathered obligation within the meaning of Treasury Regulation Section1.1471-2(b)(2)(i)."
"A. Reference is made to that certain Credit Agreement dated as of June19, 2015 among the Borrower, the Administrative Agent, the Issuing Lender and the financial institutions party thereto as lenders from time to time (the Lenders), as amended by that certain Amendment No.1 and Agreement dated as of April26, 2016, that certain Amendment No.2 and Agreement dated as of June29, 2016, that certain Amendment No.3 dated as of September30, 2016 (as so amended and as the same may be further amended, restated, supplemented or modified from time to time, the Credit Agreement). Each term defined in the Credit Agreement and used herein without definition shall have the meaning assigned to such term in the Credit Agreement, unless expressly provided to the contrary."
"(b) The Borrower shall have paid (i)all reasonable out-of-pocket costs and expenses that have been invoiced and are payable pursuant to Section9.1 of the Credit Agreement and (ii)all fees required to be paid on the date hereof pursuant to that certain Amendment Fee Letter dated December23, 2016 between the Borrower, the Administrative Agent and Wells Fargo Bank, National Association, as the lead arranger."
"This Limited Waiver to Credit Agreement (this Limited Waiver) is entered into effective as of the 31st day of January, 2017 (the Effective Date), by and among Sunoco LP, a Delaware limited partnership (Borrower), Bank of America, N.A., as Administrative Agent (in such capacity, the Administrative Agent), Swingline Lender and an LC Issuer, and the financial institutions parties hereto as Lenders (Lenders)."
"WHEREAS, Borrower, Administrative Agent and the Lenders are parties to that certain Credit Agreement, dated as of September25, 2014 (as amended by that certain First Amendment to Credit Agreement and Increase Agreement dated as of as April10, 2015, that certain Second Amendment to Credit Agreement, dated as of December2, 2015, that certain Third Amendment to Credit Agreement, dated as of August1, 2016, and that certain Fourth Amendment to Credit Agreement, dated as of December21, 2016 and as otherwise amended, restated, supplemented or modified prior to the date hereof, the Existing Credit Agreement and the Existing Credit Agreement, as modified by this Limited Waiver, the Credit Agreement) (unless otherwise defined herein, all terms used herein with their initial letter capitalized shall have the meaning given such terms in the Credit Agreement);"
"WHEREAS, Borrower has requested that Administrative Agent and the Lenders constituting at least the Majority Lenders waive the Miscalculations, the Incremental Accrued Interest Breach and any and all Defaults or Events of Defaults due to the Miscalculations or the Incremental Accrued Interest Breach, in either case, on or before the Effective Date (including as a result of the existence or non-existence of any Default or Event of Default during the Applicable Period attributable to the Miscalculations or Incremental Accrued Interest Breach or the inaccuracy of any representation or warranty (including any reaffirmation thereof) regarding the Miscalculations or the Incremental Accrued Interest Breach);"
"Section 1. Limited Waiver. In reliance on the representations, warranties, covenants and agreements contained in this Limited Waiver, subject to the terms and conditions precedent set forth in Section2 hereof, the Administrative Agent and the Lenders hereby agree that, as of the Effective Date, the Miscalculations, the Incremental Accrued Interest Breach and any and all Defaults or Events of Default due to the Miscalculations or the Incremental Accrued Interest Breach, in either case, on or before the Effective Date (including as a result of the existence or non-existence of any Default or Event of Default during the Applicable Period attributable to the Miscalculations or Incremental Accrued Interest Breach or the inaccuracy of any representation or warranty (including any reaffirmation thereof) regarding the Miscalculations or the Incremental Accrued Interest Breach) are hereby waived and deemed remedied for all purposes under the Loan Documents (provided that, for the avoidance of doubt, the payment by Borrower of the Incremental Accrued Interest is not waived by this Section1)."
"2.2 Updated Calculations and Compliance Certificate. Administrative Agent shall have received (a)updated calculations of Borrowers Consolidated EBITDA for each quarter from (and including) the Fiscal Quarter ending September30, 2014 and (b)an updated Compliance Certificate with respect to the Fiscal Quarter ending September30, 2016, in each case, reflecting its correct Consolidated EBITDA and Leverage Ratio calculations for such periods."
"4.2 Limited Waiver. The limited waiver granted in Section1 hereof is a one time waiver limited solely to the Miscalculations, the Incremental Accrued Interest Breach and any and all Defaults or Events of Default arising therefrom on or prior to the Effective Date, and nothing contained herein shall be deemed a consent to, or waiver of, any other Default or Event of Default or action or inaction of Borrower, any Guarantor or any of Borrowers Subsidiaries which constitutes (or would constitute) a violation of any provision of the Credit Agreement or any other Loan Document. Neither the Lenders nor Administrative Agent shall be obligated to grant any future waivers, consents or amendments with respect to any other provision of the Credit Agreement or any other Loan Document. Nothing contained herein shall constitute any course of dealing or other basis for altering any obligation of Borrower or any right, privilege or remedy of Administrative Agent or the Lenders under the Credit Agreement or the other Loan Documents."
"4.10 Release of Claims and Waiver of Defenses. In further consideration of Administrative Agents and the Majority Lenders execution of this Limited Waiver, Borrower, on behalf of itself and its successors, assigns, affiliates, officers, directors, employees and agents hereby forever, fully, unconditionally and irrevocably waives and releases Administrative Agent, the Lenders and their respective successors, assigns, parents, subsidiaries, affiliates, officers, directors, employees and agents (collectively, the Releasees) from any and all claims, liabilities, obligations, debts, causes of action (whether at law or in equity or otherwise), defenses, counterclaims, setoffs, of any kind, whether known or unknown, whether liquidated or unliquidated, matured or unmatured, fixed or contingent, directly or indirectly arising out of, connected with, resulting from or related to any act or omission by Administrative Agent, any Lender or any other Releasee with respect to the Loan Documents and any Collateral occurring on or before the date of this Limited Waiver."
"Adjusted LIBO Rate means, with respect to any Eurodollar Borrowing for any Interest Period or for any ABR Borrowing, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate."
"If at any time the Administrative Agent determines that the financial statements upon which the Applicable Rate was determined were incorrect (whether based on a restatement, fraud or otherwise), the Borrower shall be required to retroactively pay any additional amount that the Borrower would have been required to pay if such financial statements had been accurate at the time they were delivered."
"Assignment and Assumption means an assignment and assumption agreement entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent."
"Borrowing means (a) Revolving Loans of the same Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect, (b) Term Loans of the same Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect, or (c) a Swingline Loan."
"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 dollars in the London interbank market."
"Collateral Documents means, collectively, the Security Agreement, the Mortgages and Mortgage Instruments and all other agreements, instruments and documents executed in connection with this Agreement that are intended to create, perfect or evidence Liens to secure the Secured Obligations, including, without limitation, all other security agreements, pledge agreements, mortgages, deeds of trust, loan agreements, notes, guarantees, subordination agreements, pledges, powers of attorney, consents, assignments, contracts, fee letters, notices, leases, financing statements and all other written matter whether heretofore, now or hereafter executed by any Loan Party and delivered to the Administrative Agent."
"EEA Financial Institution means (a) any institution 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 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."
"FATCA means Sections 1471 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), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code."
"Foreign Lender means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the 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 the Borrower is resident for tax purposes."
"LC Exposure means at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Revolving Lender at any time shall be its Applicable Percentage of the aggregate LC Exposure at such time."
"Lenders means the Persons listed on the Commitment Schedule and any other Person that shall have become a Lender hereunder pursuant to Section 2.09 or an Assignment and Assumption or other documentation contemplated hereby, other than any such Person that ceases to be a Lender hereunder pursuant to an Assignment and Assumption or other documentation contemplated hereby. Unless the context otherwise requires, the term Lenders includes the Swingline Lender and the Issuing Bank."
"Lien means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (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 and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities."
"Material Adverse Effect means a material adverse effect on (a) the business, assets, operations, prospects or condition, financial or otherwise, of the Borrower and its Subsidiaries taken as a whole, (b) the ability of any Loan Party to perform any of its obligations under the Loan Documents to which it is a party, (c) the Collateral, or the Administrative Agents Liens (on behalf of itself and the other Secured Parties) on the Collateral or the priority of such Liens, or (d) the rights of or benefits available to the Administrative Agent, the Issuing Bank or the Lenders under any of the Loan Documents."
"Mortgage Instruments means such title reports, ALTA title insurance policies (with endorsements), evidence of zoning compliance, property insurance, flood certifications and flood insurance (and, if applicable FEMA form acknowledgements of insurance), opinions of counsel, ALTA surveys, appraisals, environmental assessments and reports, mortgage tax affidavits and declarations and other similar information and related certifications as are requested by, and in form and substance reasonably acceptable to, the Administrative Agent from time to time."
"Overnight Bank Funding Rate means, for any day, the rate comprised of both overnight federal funds and overnight Eurodollar borrowings by U.S.-managed banking offices of depository institutions (as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time) and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall commence to publish such composite rate)."
"(c)investments in certificates of deposit, bankers acceptances and time deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the U.S. or any state thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;"
"Plan means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an employer as defined in Section 3(5) of ERISA."
"Sanctioned Person means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State or by the United Nations Security Council, the European Union, any European Union member state, Her Majestys Treasury of the United Kingdom or other relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b)."
"subsidiary means, with respect to any Person (the parent) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parents consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other 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, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, 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."
"Unfinanced Capital Expenditures means, for any period, Capital Expenditures made in cash during such period which are not financed from the proceeds of any Indebtedness (other than the Revolving Loans or Swingline Loans; it being understood and agreed that, to the extent any Capital Expenditures are financed with Revolving Loans or Swingline Loans, such Capital Expenditures shall be deemed Unfinanced Capital Expenditures). For avoidance of doubt, through and including the fiscal quarter ending March 31, 2017, up to $18,000,000 in the aggregate of construction costs with respect to the property located at 625 Zoot Way, Bozeman, MT 59718 that are paid or reimbursed with proceeds of any Indebtedness will not be considered Unfinanced Capital Expenditures hereunder."
(a)Each Loan (other than a Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the applicable Lenders ratably in accordance with their respective Commitments of the applicable Class. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lenders failure to make Loans as required. Any Swingline Loan shall be made in accordance with the procedures set forth in Section 2.05. The Term Loans shall amortize as set forth in Section 2.10.
"(c)The Swingline Lender may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Swingline Lender and the successor Swingline Lender. The Administrative Agent shall notify the Revolving Lenders of any such replacement of the Swingline Lender. At the time any such replacement shall become effective, the Borrower shall pay all unpaid interest accrued for the account of the replaced Swingline Lender pursuant to Section 2.13(a). From and after the effective date of any such replacement, (x) the successor Swingline Lender shall have all the rights and obligations of the replaced Swingline Lender under this Agreement with respect to Swingline Loans made thereafter and (y) references herein to the term Swingline Lender shall be deemed to refer to such successor or to any previous Swingline Lender, or to such successor and all previous Swingline Lenders, as the context shall require. After the replacement of the Swingline Lender hereunder, the replaced Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to its replacement, but shall not be required to make additional Swingline Loans."
"(k)Issuing Bank Reports to the Administrative Agent. In the event Chase is not the only Issuing Bank, and 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 each Business Day on which such Issuing Bank makes any LC Disbursement, the date and amount of such LC Disbursement, (iv) on any Business Day on which the 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."
"(a)Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. This Section shall not apply to Swingline Borrowings, which may not be converted or continued."
"(b)The Borrower may at any time terminate the Revolving Commitments upon (i) the payment in full of all outstanding Revolving Loans and LC Disbursements, together with accrued and unpaid interest thereon, (ii) the cancellation and return of all outstanding Letters of Credit (or alternatively, with respect to each such Letter of Credit, the furnishing to the Administrative Agent of a cash deposit (or at the discretion of the Administrative Agent a backup standby letter of credit satisfactory to the Administrative Agent and the Issuing Bank) in an amount equal to 105% of the LC Exposure as of such date), (iii) the payment in full of the accrued and unpaid fees, and (iv) the payment in full of all reimbursable expenses and other Obligations together with accrued and unpaid interest thereon."
"(d)The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Revolving Commitments under paragraph (b) or (c) of this Section at least three (3) Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided that a notice of termination of the Revolving Commitments delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities or other transactions specified therein, in which case such notice may be revoked by the 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 Revolving Commitments shall be permanent. Each reduction of the Revolving Commitments shall be made ratably among the Lenders in accordance with their respective Revolving Commitments."
"(a)The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Revolving Lender the then unpaid principal amount of each Revolving Loan on the Revolving Credit Maturity Date, and (ii) to the Swingline Lender the then unpaid principal amount of each Swingline Loan on the earlier of the Revolving Credit Maturity Date and the fifth Business Day after such Swingline Loan is made; provided that on each date that a Revolving Loan is made, the Borrower shall repay all Swingline Loans then outstanding and the proceeds of any such Revolving Loan shall be applied by the Administrative Agent to repay any Swingline Loans outstanding."
"; provided if any date set forth above is not a Business Day, then payment shall be due and payable on the Business Day immediately preceding such date. To the extent not previously paid, all unpaid Term Loans shall be paid in full in cash by the Borrower on the Term Loan Maturity Date."
"(c)Prior to any repayment of any Term Loan Borrowings under this Section, the Borrower shall select the Borrowing or Borrowings of the Term Loans to be repaid and shall notify the Administrative Agent by telephone (confirmed by fax) of such selection not later than 11:00 a.m., New York City time, three (3) Business Days before the scheduled date of such repayment. Each repayment of a Term Loan Borrowing shall be applied ratably to the Loans included in the repaid Term Loan Borrowing. Repayments of Term Loan Borrowings shall be accompanied by accrued interest on the amounts repaid."
(e)The entries made in the accounts maintained pursuant to paragraph (b) or (d) of this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the Obligations.
"(d)All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for distribution, in the case of commitment fees and participation fees, to the Lenders entitled thereto. Fees paid shall not be refundable under any circumstances."
"(b)the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for the applicable Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans included in such Borrowing for such Interest Period;"
"(iii)subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;"
"and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, continuing, converting into or maintaining any Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender, the Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered."
"(c)A certificate of a Lender or the Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or the Issuing Bank or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender or the Issuing Bank, as the case may be, the amount shown as due on any such certificate within ten (10) days after receipt thereof."
"(d)Indemnification by the Loan Parties. The Loan Parties shall jointly and severally indemnify each Recipient, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified 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 Loan Party 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."
"(e)Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (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), (ii) any Taxes attributable to such Lenders failure to comply with the provisions of Section 9.04(c) 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 the 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 the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the 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 the Administrative Agent to such Lender from any other source against any amount due to the Administrative Agent under this paragraph (e)."
"(3)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 substantially in the form of Exhibit D-1 to the effect 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 Borrower 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) an executed IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable; or"
"(C)any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower 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 Borrower or the Administrative Agent), executed originals 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 supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and"
"(b)Any proceeds of Collateral received by the Administrative Agent (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrower except as provided in the immediately succeeding clause(ii)) or (B) a mandatory prepayment (which shall be applied in accordance with Section 2.11) or (ii) after an Event of Default has occurred and is continuing and the Administrative Agent so elects or the Required Lenders so direct, such funds shall be applied ratably first, to pay any fees, indemnities, or expense reimbursements including amounts then due to the Administrative Agent, the Swingline Lender and the Issuing Bank from the Borrower (other than in connection with Banking Services Obligations or Swap Agreement Obligations), second, to pay any fees or expense reimbursements then due to the Lenders from the Borrower (other than in connection with Banking Services Obligations or Swap Agreement Obligations), third, to pay interest then due and payable on the Loans ratably, fourth, to prepay principal on the Loans and unreimbursed LC Disbursements and to pay any amounts owing with respect to Swap Agreement Obligations up to and including the amount most recently provided to the Administrative Agent pursuant to Section 2.22, ratably (with amounts allocated to the Term Loans applied to reduce the subsequent scheduled repayments of the Term Loans to be made pursuant to Section 2.10 in inverse order of maturity), fifth, to pay an amount to the Administrative Agent equal to one hundred five percent (105%) of the aggregate LC Exposure, to be held as cash collateral for such Obligations, and sixth, to the payment of any amounts owing in respect of Banking Services Obligations up to and including the amount most recently provided to the Administrative Agent pursuant to Section 2.22, and seventh, to the payment of any other Secured Obligation due to the Administrative Agent or any Lender from the Borrower or any other Loan Party. Notwithstanding the foregoing, amounts received from any Loan Party shall not be applied to any Excluded Swap Obligation of such Loan Party. Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrower, or unless a Default is in existence, neither the Administrative Agent nor any Lender shall apply any payment which it receives to any Eurodollar Loan of any Class, except (i) on the expiration date of the Interest Period applicable thereto, or (ii) in the event, and only to the extent, that there are no outstanding ABR Loans of such Class and, in any such event, the Borrower shall pay the break funding payment required in accordance with Section 2.16. The Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations."
"(e)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 relevant Lenders or the Issuing Bank 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 relevant Lenders or the Issuing Bank, 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 relevant Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank 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 Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation."
"(b)If any Lender requests compensation under Section 2.15, or if the 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, or if any Lender becomes a Defaulting 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 Section 9.04), all its interests, rights (other than its existing rights to payments pursuant to Sections 2.15 or 2.17) and obligations under this Agreement and other 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 received the prior written consent of the Administrative Agent (and in circumstances where its consent would be required under Section 9.04, the Issuing Bank and the Swingline Lender), which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, 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) and (iii) in the case of any such assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant to Section 2.17, such assignment will result in a reduction in such compensation or payments. A Lender shall not be required to make any such assignment and 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."
"(b)such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Revolving Commitment and Revolving Exposure and, if applicable, Term Loan Commitment and Term Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder or under any other Loan Document; provided that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;"
"(i)all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only (x) to the extent that the conditions set forth in Section 4.02 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time) and (y) to the extent that such reallocation does not, as to any non-Defaulting Lender, cause such non- Defaulting Lenders Revolving Exposure to exceed its Revolving Commitment;"
"(ii)if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize, for the benefit of the Issuing Bank, the Borrowers obligations corresponding to such Defaulting Lenders LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(j) for so long as such LC Exposure is outstanding;"
"(b)No Loan Party intends to, nor will permit any Subsidiary to, and no Loan Party believes that it or any Subsidiary will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing of and amounts of cash to be received by it or any such Subsidiary and the timing of the amounts of cash to be payable on or in respect of its Indebtedness or the Indebtedness of any such Subsidiary."
"SECTION 3.16. Security Interest in Collateral. The provisions of this Agreement and the other Loan Documents create legal and valid perfected Liens on all the Collateral in favor of the Administrative Agent, for the benefit of the Secured Parties, and such Liens constitute perfected and continuing Liens on the Collateral, securing the Secured Obligations, enforceable against the applicable Loan Party and all third parties, and having priority over all other Liens on the Collateral except in the case of (a) Permitted Encumbrances, to the extent any such Permitted Encumbrances would have priority over the Liens in favor of the Administrative Agent pursuant to any applicable law and (b) Liens perfected only by possession (including possession of any certificate of title), to the extent the Administrative Agent has not obtained or does not maintain possession of such Collateral."
(h)Funding Account. The Administrative Agent shall have received a notice (which notice may be in the form of a Borrowing Request or such other form or method as approved by the Administrative Agent) setting forth the deposit account of the Borrower (the Funding Account) to which the Administrative Agent is authorized by the Borrower to transfer the proceeds of any Borrowings requested or authorized pursuant to this Agreement.
"(j)Pledged Equity Interests; Stock Powers; Pledged Notes. The Administrative Agent shall have received (i) the certificates representing the Equity Interests 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 and other instrument or possessory collateral (if any) 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 or accompanied by allonges or other acknowledgements signed in blank, as applicable."
"(m)USA PATRIOT Act, Etc. The Administrative Agent and Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable know your customer and anti-money laundering rules and regulations, including USA PATRIOT Act, and a properly completed and signed IRS Form W-8 or W-9, as applicable, for each Loan Party."
"Documents required to be delivered pursuant to clauses (a) and (b) of this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SECs Electronic Data Gathering and Retrieval System; provided that the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the filing of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the compliance certificates required by clause (c) of this Section 5.01 to the Administrative Agent."
"(a)As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the Administrative Agent) after any Person becomes a Subsidiary or any Subsidiary qualifies independently as, or is designated by the Borrower or the Administrative Agent as, a Material Domestic Subsidiary pursuant to the definition of Material Domestic Subsidiary, the Borrower shall (i) provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and (ii) cause each such Subsidiary which also qualifies as a Material Domestic Subsidiary to execute and deliver to the Administrative Agent a Joinder Agreement, which Joinder Agreement shall be accompanied by appropriate organizational resolutions, other organizational documentation and legal opinions in form and substance reasonably satisfactory to the Administrative Agent and its counsel. Each such Person delivering a Joinder Agreement (x) shall automatically become a Subsidiary Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (y) will grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, in any property of such Loan Party which constitutes Collateral, including any parcel of real property located in the U.S. owned by any Loan Party."
"Until the Commitments shall have expired or been terminated and the principal of and interest on each Loan and all fees, expenses and other amounts payable under any Loan Document shall have been paid in full and all Letters of Credit shall have expired or terminated, in each case without any pending draw, and all LC Disbursements shall have been reimbursed, each Loan Party executing this Agreement covenants and agrees, jointly and severally with all of the other Loan Parties, with the Lenders that:"
"(d)Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (i) the Indebtedness so Guaranteed is permitted by this Section 6.01, (ii) Guarantees by the Borrower or any other Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04 and (iii) Guarantees permitted under this clause (d) shall be subordinated to the Secured Obligations on the same terms as the Indebtedness so Guaranteed is subordinated to the Secured Obligations;"
"SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions. No Loan Party will, nor will it permit any Subsidiary to, form any subsidiary after the Effective Date, or purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger or consolidation) any Equity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit (whether through purchase of assets, merger or otherwise), except:"
"(i)investments of any Person existing at the time such Person becomes a Subsidiary of the Borrower or consolidates or merges with the Borrower or any Subsidiary (including in connection with a Permitted Acquisition), so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such merger;"
"(g)sales, transfers and other dispositions of assets (other than Equity Interests in a Subsidiary unless all Equity Interests in such Subsidiary are sold) that are not permitted by any other clause of this Section; provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (g) shall not exceed five percent (5%) of Consolidated Total Assets of the Borrower and its Subsidiaries for the most recently ended period of four fiscal quarters during any fiscal year of the Borrower for which financial statements shall have been delivered pursuant to Section5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the most recent financial statements referred to in Section 3.04(a)), as applicable;"
"(e)any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in clause (a), (b) or (d)), and such failure shall continue unremedied for a period of thirty (30) days after the earlier of any Loan Partys knowledge of such breach or notice thereof from the Administrative Agent (which notice will be given at the request of any Lender);"
"(i)any Loan Party or any 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 such Loan Party or Subsidiary of any Loan Party 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;"
"(o)the Loan Guaranty shall fail to remain in full force or effect or any action shall be taken to discontinue or to assert the invalidity or unenforceability of the Loan Guaranty or any Loan Guarantor shall fail to comply with any of the terms or provisions of the Loan Guaranty to which it is a party, or any Loan Guarantor shall deny that it has any further liability under the Loan Guaranty to which it is a party, or shall give notice to such effect, including, but not limited to notice of termination delivered pursuant to Section 10.08;"
"SECTION 8.01. Appointment. Each of the Lenders, on behalf of itself and any of its Affiliates that are Secured Parties and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than the United States of America, each of the Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and the Issuing Bank hereby grants to the Administrative Agent any required powers of attorney to execute any Collateral Document governed by the laws of such jurisdiction on such Lenders or Issuing Banks behalf. The provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders (including the Swingline Lender and the Issuing Bank), and the Loan Parties shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term agent as used herein or in any other Loan Documents (or any similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties."
"SECTION 8.08. Other Agency Titles. None of the Lenders, if any, identified in this Agreement as a syndication agent or documentation agent or any similar title shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as syndication agent or documentation agent or any similar title, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph."
"(a)The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement."
"(iii)and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender, the Issuing Bank and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, the Issuing Bank or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.03)."
"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 telecopy 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 Systems to the extent provided in paragraph (b) below shall be effective as provided in such paragraph (b)."
"(b)Notices and other communications to the Lenders hereunder may be delivered or furnished by using Electronic Systems pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II or to compliance and no Default certificates delivered pursuant to Section 5.01(d) unless otherwise agreed by the Administrative Agent and the applicable Lender. Each of the Administrative Agent and the Borrower (on behalf of the Loan Parties) may, in its discretion, agree to accept notices and other communications to it hereunder by Electronic Systems 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 proscribes, all such notices and other communications (i) 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 not given during the normal business hours of the recipient, such notice or communication shall be deemed to have been given at the opening of business on the next Business Day for the recipient, 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 therefor; provided that, for both clauses (i) and (ii) above, if such notice, e-mail 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 of the recipient."
"(a)No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under any other Loan Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, 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 or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default at the time."
"(b)Except as provided in Sections 2.09 with respect to any Incremental Term Loan Amendment or modification of the Commitment Schedule, and subject to clauses (c) and (e) below, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders or (ii) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by the Administrative Agent (but only with the consent, or at the direction of the Required Lenders) and the Loan Party or Loan Parties that are parties thereto; provided that no such agreement shall (A) increase the Commitment of any Lender without the written consent of such Lender (including any such Lender that is a Defaulting Lender), (B) reduce or forgive the principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce or forgive any interest or fees payable hereunder, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby (except that any amendment or modification of the financial covenants in this Agreement (or defined terms used in the financial covenants in this Agreement) shall not constitute a reduction in the rate of interest or fees for purposes of this clause (B)), (C) postpone any scheduled date of payment of the principal amount of any Loan or LC Disbursement, or any date for the payment of any interest, fees or other Obligations payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby, (D) change Section 2.18(b) or (d) in a manner that would alter the manner in which payments are shared, without the written consent of each Lender (other than any Defaulting Lender), (E) change any of the provisions of this Section or the definition of Required Lenders or any other provision of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder, without the written consent of each Lender (other than any Defaulting Lender) directly affected thereby (it being understood that, solely with the consent of the parties prescribed by Section 2.09 to be parties to an Incremental Term Loan Amendment, Incremental Term Loans may be included in the determination of Required Lenders on substantially the same basis as the initial Commitments and Loans are included on the Effective Date), (F) release the Borrower or release any Loan Guarantor from its obligation under its Loan Guaranty (except as otherwise permitted herein or in the other Loan Documents), without the written consent of each Lender (other than any Defaulting Lender), or (G) except as provided in clause (c) of this Section or in any Collateral Document, release all or substantially all of the Collateral without the written consent of each Lender (other than any Defaulting Lender); provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, the Swingline Lender or the Issuing Bank hereunder without the prior written consent of the Administrative Agent, the Swingline Lender or the Issuing Bank, as the case may be (it being understood that any amendment to Section 2.20 shall require the consent of the Administrative Agent, the Swingline Lender and the Issuing Bank); provided further that no such agreement shall amend or modify the provisions of Section 2.06 or any letter of credit application and any bilateral agreement between the Borrower and the Issuing Bank regarding the Issuing Banks Issuing Bank Sublimit or the respective rights and obligations between the Borrower and the Issuing Bank in connection with the issuance of Letters of Credit without the prior written consent of the Administrative Agent and the Issuing Bank, respectively. The Administrative Agent may also amend the Commitment Schedule to reflect assignments entered into pursuant to Section 9.04. Any amendment, waiver or other modification of this Agreement or any other Loan Document that by its terms affects the rights or duties under this Agreement of the Lenders of one or more Classes (but not the Lenders of any other Class), may be effected by an agreement or agreements in writing entered into by the Borrower and the requisite number or percentage in interest of each affected Class of Lenders that would be required to consent thereto under this Section if such Class of Lenders were the only Class of Lenders hereunder at the time."
"(c)The Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its sole discretion, to release any Liens granted to the Administrative Agent by the Loan Parties on any Collateral (i) upon the termination of all of the Commitments, payment and satisfaction in full in cash of all Secured Obligations (other than Unliquidated Obligations), and the cash collateralization of all Unliquidated Obligations in a manner satisfactory to each affected Lender, (ii) constituting property being sold or disposed of if the Loan Party disposing of such property certifies to the Administrative Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry), and to the extent that the property being sold or disposed of constitutes 100% of the Equity Interests of a Subsidiary, the Administrative Agent is authorized to release any Loan Guaranty provided by such Subsidiary, (iii) constituting property leased to a Loan Party under a lease which has expired or been terminated in a transaction permitted under this Agreement, or (iv) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent and the Lenders pursuant to Article VII. Except as provided in the preceding sentence, the Administrative Agent will not release any Liens on Collateral without the prior written authorization of the Required Lenders or, to the extent required by Section 9.02(b), all of the Lenders. Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be without recourse to or warranty by the Administrative Agent. In addition, each of the Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, irrevocably authorizes the Administrative Agent, at its option and in its discretion, (x) to subordinate any Lien on any assets 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 Section 6.02(d) or (y) in the event that the Borrower shall have advised the Administrative Agent that, notwithstanding the use by the Borrower of commercially reasonable efforts to obtain the consent of such holder (but without the requirement to pay any sums to obtain such consent) to permit the Administrative Agent to retain its liens (on a subordinated basis as contemplated by clause (x) above), the holder of such other Indebtedness requires, as a condition to the extension of such credit, that the Liens on such assets granted to or held by the Administrative Agent under any Loan Document be released, to release the Administrative Agents Liens on such assets."
"(c)To the extent that any Loan Party fails to pay any amount required to be paid by it to the Administrative Agent (or any sub-agent thereof), the Swingline Lender or the Issuing Bank (or any Related Party of any of the foregoing) under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent and each Revolving Lender severally agrees to pay to the Swingline Lender or the Issuing Bank (or any Related Party of any of the foregoing), as the case may be, such Lenders Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount (it being understood that the Borrowers failure to pay any such amount shall not relieve the Borrower of any default in the payment thereof); provided that the unreimbursed expense or indemnified loss, claim, damage, penalty, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent, the Swingline Lender or the Issuing Bank in its capacity as such."
"(b)(i)Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Persons (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments, participations in Letters of Credit and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of:"
"(D)the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower, the other Loan Parties and their Related Parties or their respective 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."
"(c)Any Lender may, without the consent of the Borrower, the Administrative Agent, the Swingline Lender or the Issuing Bank, sell participations to one or more banks or other entities (a Participant) other than an Ineligible Institution in all or a portion of such Lenders rights and obligations under this Agreement (including all or a portion of its Commitments and 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) the Borrower, the Administrative Agent, the Issuing Bank and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lenders rights and obligations under this Agreement. 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 described in the first proviso to Section 9.02(b) that affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 (subject to the requirements and limitations therein, including the requirements under Sections 2.17(f) and (g) (it being understood that the documentation required under Section 2.17(f) shall be delivered to the participating Lender and the information and documentation required under Section 2.17(g) will be delivered to the Borrower and the Administrative Agent)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 2.18 and 2.19 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 2.15 or 2.17 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."
"SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender 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 Affiliate to or for the credit or the account of any Loan Party against any of and all the Secured Obligations held by such Lender, irrespective of whether or not such Lender shall have made any demand under the Loan Documents and although such obligations may be unmatured. The applicable Lender shall notify the Borrower and the Administrative Agent of such set-off or application, provided that any failure to give or any delay in giving such notice shall not affect the validity of any such set-off or application under this Section. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of setoff) which such Lender may have."
"SECTION 9.12. Confidentiality. Each of the Administrative Agent, the Issuing Bank and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates directors, officers, employees and agents, including accountants, legal counsel and other advisors (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 Governmental Authority (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by any Requirement of Law or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any suit, 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 (x) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement, and, in each case, their respective financing sources or (y)any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Loan Parties and their obligations, (g) on a confidential basis to (1) any rating agency in connection with rating the Borrower or its Subsidiaries or the credit facilities provided for herein or (2) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the credit facilities provided for herein, (h) with the consent of the Borrower, (i) to any Person providing a Guarantee of all or any portion of the Secured Obligations, or (j) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent, the Issuing Bank or any Lender on a non-confidential basis from a source other than the Borrower. For the purposes of this Section, Information means all information received from the Borrower relating to the Borrower or its business, other than any such information that is available to the Administrative Agent, the Issuing Bank or any Lender on a non-confidential basis prior to disclosure by the Borrower and other than information pertaining to this Agreement routinely provided by arrangers to data service providers, including league table providers, that serve the lending industry; provided that, in the case of information received from the Borrower after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information."
"SECTION 9.16. Appointment for Perfection. Each Lender hereby appoints each other Lender as its agent for the purpose of perfecting Liens, for the benefit of the Administrative Agent and the Secured Parties, in assets which, in accordance with Article 9 of the UCC or any other applicable law can be perfected only by possession or control. Should any Lender (other than the Administrative Agent) obtain possession or control of any such Collateral, such Lender shall notify the Administrative Agent thereof, and, promptly upon the Administrative Agents request therefor shall deliver such Collateral to the Administrative Agent or otherwise deal with such Collateral in accordance with the Administrative Agents instructions."
"(b)As of any date of determination, the Allocable Amount of any Loan Guarantor shall be equal to the excess of the fair saleable value of the property of such Loan Guarantor over the total liabilities of such Loan Guarantor (including the maximum amount reasonably expected to become due in respect of contingent liabilities, calculated, without duplication, assuming each other Loan Guarantor that is also liable for such contingent liability pays its ratable share thereof), giving effect to all payments made by other Loan Guarantors as of such date in a manner to maximize the amount of such contributions."
"SECTION 10.13. 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 Loan Party to honor all of its obligations under this Guarantee in respect of a Swap Obligation (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 10.13 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 10.13 or otherwise under this Loan Guaranty voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). Except as otherwise provided herein, the obligations of each Qualified ECP Guarantor under this Section 10.13 shall remain in full force and effect until the termination of all Swap Obligations. Each Qualified ECP Guarantor intends that this Section 10.13 constitute, and this Section 10.13 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."
"Liquidity means, as of any date of determination, the sum of (a) Available Cash then held in deposit accounts of any Loan Party as to which the Collateral Agent has an Acceptable Security Interest and which is subject to a fully executed Account Control Agreement, and (b) Availability at such time."
"(a)After the Amendment No. 10 Effective Date, the Borrower may make each of the Catch-Up Dividend Payment and each 2017 Monthly Dividend Payment for the months of February and March 2017 so long as each of the following conditions have been met:(i) no Default exists or would result from the making of such Restricted Payment, (ii) such Restricted Payment is made solely with proceeds from the issuance of common Equity Interests of the Borrower received by the Borrower after November 30, 2016 and, for the avoidance of doubt, the aggregate of all Restricted Payments permitted under this Section 6.05(a) and Section 6.05(d) below shall not exceed the aggregate amount of all such equity issuance proceeds received since November 30, 2016, (iii) no Borrowing Base Deficiency exists or would result from the making of such Restricted Payment (before and after giving effect to the reduction of the Borrowing Base required under Section 2.02(d)(iv) as a result of such Restricted Payment), (iv) concurrently with the making of such Restricted Payment the Borrower shall have made a prepayment of the Swing Line Advances (and if the Swing Line Advances have been repaid in full, the Revolving Advances) in an amount equal to such Restricted Payment with a corresponding reduction in the Borrowing Base as provided in Section 2.02(d)(iv), (v) the aggregate amount of the Catch-Up Dividend Payment shall not exceed $12,100,000, (vi) the amount of each 2017 Monthly Dividend Payment shall not exceed $1,207,000, and (vii) immediately prior to or concurrently with the making of such Restricted Payment and the required corresponding payment of Advances, the Borrower shall have delivered to the Administrative Agent an officers certificate in form and substance reasonably satisfactory to the Administrative Agent certifying the amount of such Restricted Payment and that the conditions required under this Section 6.05 as to such Restricted Payment has been satisfied or will be satisfied with the corresponding payment of Advances and reduction of the Borrowing Base;"
"(d)the Borrower may make each 2017 Monthly Dividend Payment for the months of April and May 2017 so long as each of the following conditions have been met:(i) no Default exists or would result from the making of such Restricted Payment, (ii) such Restricted Payment is made solely with proceeds from the issuance of common Equity Interests of the Borrower received by the Borrower after November 30, 2016 and, for the avoidance of doubt, the aggregate of all Restricted Payments permitted under this Section 6.05(d) and Section 6.05(a) above shall not exceed the aggregate amount of all such equity issuance proceeds received since November 30, 2016, (iii) no Borrowing Base Deficiency exists or would result from the making of such Restricted Payment (before and after giving effect to the reduction of the Borrowing Base required under Section 2.02(d)(iv) as a result of such Restricted Payment), (iv) concurrently with the making of such Restricted Payment the Borrower shall have made a prepayment of the Swing Line Advances (and if the Swing Line Advances have been repaid in full, the Revolving Advances)"
"Section 11.Governing Law.This Agreement shall be deemed a contract under, and shall be governed by, and construed and enforced in accordance with, the laws of the State of New York applicable to contracts made and to be performed entirely within such state, without regard to conflicts of laws principles (other than Section 5-1401 and Section 5-1402 of the General Obligations Law of the State of New York)."
"WHEREAS, each Person that executes and delivers a joinder to this Agreement substantially in the form of Exhibit B (a Joinder) in the capacity as an Additional Term C Lender, will, by the fact of such execution and delivery, be deemed (i) to have consented to the terms of this Agreement and the Amended Credit Agreement and (ii) to have committed to make Additional Term C Loans to the Borrower on the Amendment No. 3 Effective Date, in the amount specified by such Additional Term C Lender in the Joinder (subject to allocation by the Administrative Agent, but in no event greater than the amount such Person committed to make as Additional Term C Loans), the proceeds of which will be used, together with the proceeds of the Increased C Term Loans, by the Borrower to repay in full the aggregate outstanding principal amount of Non- Converted Term B Loans."
"(iii)The definition of Eurocurrency Rate is hereby amended by replacing the last proviso thereto with the following: provided that solely with respect to the Initial Term Loans, Term B Loans and Term C Loans, the Eurocurrency Rate shall be deemed to not be less than 1.00% per annum in all cases."
"Additional Term C Commitment means, as to each Additional Term C Lender, its obligation to make an Additional Term C Loan to the Borrower on the Amendment No. 3 Effective Date, in the amount set forth in the Joinder (as defined in Amendment No. 3) executed and delivered by such Additional Term C Lender (subject to allocation by the Administrative Agent, but in no event greater than the amount set forth by such Additional Term C Lender in such Joinder)."
"(d) (i) Subject to the terms and conditions hereof and of Amendment No. 3, each Term Lender that executes and delivers a Consent (as defined in Amendment No. 3) severally agrees to exchange or convert all of its Term B Loans outstanding on the Amendment No. 3 Effective Date into a like principal amount of Term C Loans on the Amendment No. 3 Effective Date either by cashless roll or post-closing settlement, as further described in such Lenders Consent (such exchanged or converted Term B Loans, the Converted Term B Loans). All Term C Loans that constitute Converted Term B Loans will be of the Type and have the Interest Period (if applicable) specified in the Committed Loan Notice delivered in connection therewith. All accrued and unpaid interest on the Converted Term B Loans to, but not including, the Amendment No. 3 Effective Date shall be payable on the Amendment No. 3 Effective Date, but no amounts under Section 3.05 shall be payable in connection with such conversion."
The Additional Term C Commitment of each Additional Term C Lender shall be automatically and permanently reduced to $0 upon the funding of Additional Term C Loans on the Amendment No. 3 Effective Date. The commitment of each Term C Lender to make Increased Term C Loans shall be automatically and permanently reduced to $0 upon the funding of the Increased Term C Loans on the Amendment No. 3 Effective Date.
"(a)The Administrative Agent (or its counsel) shall have received counterparts of this Agreement that, when taken together, bear the signatures of the Borrower, Holdings, the Administrative Agent, the Collateral Agent and each Term C Lender (whether pursuant to the execution and delivery of a Consent, the Joinder or counterparts of this Agreement). The Consents and the Joinder shall have been duly executed by each existing Term Lender or Additional Term C Lender, as applicable, such that upon such execution by all such Lenders, the aggregate principal amount of the Converted Term B Loans, the Increased Term C Loans and the Additional Term C Loans is equal to $2,277,500,000.00."
"(f)The representations and warranties set forth in Article V of the Amended Credit Agreement and in each other Loan Document shall be true and correct in all material respects on and as of the date hereof (both before and after giving effect to the transactions contemplated by this Amendment) with the same effect as though made on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date."
"5.Liens Unimpaired. Each of the Borrower and Holdings, on behalf of itself and each other Loan Party, represents, warrants and agrees that after giving effect to this Agreement, neither the modification of the Existing Credit Agreement effected pursuant to this Agreement nor the execution, delivery, performance or effectiveness of this Agreement:"
| | Mark this box to have all of your Term B Loans prepaid on the Amendment No. 3 Effective Date and to purchase by assignment an aggregate principal amount of Term C Loans equal to the amount of such Term B Loans prepaid (or such lesser amount allocated by the Administrative Agent). ---|---|--- 
" |  |  | , ---|---|---|---  | as a Lender (type name of the legal entity)  |  |   | By: |   |  | Name:  |  | Title:  |  |   | If a second signature is necessary:  |  |   | By: |   |  | Name:  |  | Title: "
"Approved Fund means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial 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."
"Authorized Representative means those persons shown on the list of officers provided by the Borrowers pursuant to Section 3.2 or on any update of any such list provided by the Borrowers to the Administrative Agent, or any further or different officers of the Borrowers so named by any Authorized Representative of the Borrowers in a written notice to the Administrative Agent."
"Base Rate means for any day, the rate per annum equal to the greatest of: (a) the rate of interest announced by Fifth Third Bank, an Ohio banking corporation, from time to time as its prime rate as in effect on such day, with any change in the Base Rate resulting from a change in said prime rate to be effective as of the date of the relevant change in said prime rate (it being acknowledged that such rate may not be the Administrative Agents best or lowest rate), (b) the sum of (i) the Federal Funds Rate, plus (ii) .50% and (c) the sum of (i) the Adjusted LIBOR that would be applicable to a Eurodollar Loan with a one (1) month Interest Period advanced on such day (or if such day is not a Business Day, the immediately preceding Business Day), plus (ii) 1.00%."
"Board of Directors means, with respect to any Person, the Board of Directors (or equivalent governing body) of such Person or any committee of the Board of Directors (or equivalent governing body) of such Person duly authorized, with respect to any particular matter, to exercise the power of the Board of Directors (or equivalent governing body) of such Person."
"Capital Expenditures means, with respect to any Person for any period, the aggregate amount of all expenditures (whether paid in cash or accrued as a liability) by such Person during that period for the acquisition or leasing (pursuant to a Capital Lease) of fixed or capital assets or additions to property, plant, or equipment (including replacements, capitalized repairs, and improvements) which should be capitalized on the balance sheet of such Person in accordance with GAAP (or, in the case of Capital Leases, in accordance with GAAP as in effect on the Closing Date), excluding (i) expenditures made in connection with the replacement, substitution, restoration or repair of assets to the extent financed with (x) insurance proceeds paid on account of the loss or damage to the assets being replaced, restored or repaired or (y) awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced, (ii) that portion of the gross purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment that represents the credit granted by the seller of such equipment for the equipment being traded in at such time, or (iii) the purchase of assets that would otherwise constitute Capital Expenditures to the extent financed with the proceeds of any Asset Disposition permitted hereunder."
"Change of Control means any of (a) the acquisition by any person or group (as such terms are used in sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) (other than the Permitted Holders) at any time of beneficial ownership of 50% or more of the outstanding Ownership Interests of Turning Point on a fullydiluted basis, (b) Standard General shall fail to own more than 50% of the Ownership Interests of Turning Point, provided, that, if Standard General transfers its Ownership Interests of Turning Point to SDOI, a Change of Control shall not be deemed to occur unless (i) SDOI shall fail to own more than 50% of the Ownership Interests of Turning Point or (ii) Standard General shall fail to own more than 50% of the Ownership Interests of SDOI, (c) Turning Point shall fail to own 100% of the Ownership Interests of NATC Holding, (d) NATC Holding shall fail to own 100% of the Ownership Interests of NATC, (e) the failure of individuals who are members of the board of directors (or similar governing body) of Turning Point on the Closing Date (together with any new or replacement directors whose initial nomination for election was approved by a majority of the directors who were either directors on the Closing Date or previously so approved) to constitute a majority of the board of directors (or similar governing body) of Turning Point, or (f) any Change of Control (or words of like import), as defined in any agreement or indenture relating to any issue of material Indebtedness (including the Second Lien Loan Agreement) of any Loan Party shall occur."
"Consolidated Interest Expense means, for any period, determined on a Consolidated basis, without duplication, for Turning Point and its Subsidiaries in accordance with GAAP, interest expense (including interest expense attributable to Capitalized Lease Obligations and all net payment obligations pursuant to Hedge Agreements), premium payments, debt discounts, fees, charges and related expenses with respect to any and all Indebtedness of Turning Point and its Subsidiaries for such period; provided that, notwithstanding the foregoing, Consolidated Interest Expense (i) for the four fiscal quarters ended March 31, 2017 shall be deemed to be Consolidated Interest Expense for the two consecutive fiscal months ended March 31, 2017 multiplied by six (6), (ii) for the four fiscal quarters ended June 30, 2017 shall be deemed to be Consolidated Interest Expense for the five consecutive fiscal months ended June 30, 2017 multiplied by twelve-fifths (12/5) (iii) for the four fiscal quarters ended September 30, 2017 shall be deemed to be Consolidated Interest Expense for the eight consecutive fiscal months ended September 30, 2017 multiplied by threehalves (3/2) and (iv) for the four fiscal quarters ended December 31, 2017 shall be deemed to be Consolidated Interest Expense for the eleven consecutive fiscal months ended December 31, 2017 multiplied by twelve-elevenths (12/11); provided, further, that all interest, premium payments, debt discounts, fees, charges and related expenses paid in connection with the Refinancing, including any Transaction Costs in connection therewith, shall be excluded from the calculation of Consolidated Interest Expense."
"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;"
"Employee Benefit Plan means (a) any employee benefit plan within the meaning of Section 3(3) of ERISA that is maintained for employees of any Loan Party or any ERISA Affiliate or (b) any Pension Plan or Multiemployer Plan that has at any time within the preceding seven (7) years been maintained, funded or administered for the employees of any Loan Party or any current or former ERISA Affiliate."
"Event of Loss means, with respect to any Property, any of the following: (a) any loss, destruction or damage of such Property or (b) any condemnation, seizure, or taking, by exercise of the power of eminent domain or otherwise, of such Property, or confiscation of such Property or the requisition of the use of such Property."
"Excluded Equity Issuances means (a) the issuance by any Subsidiary of Ownership Interests to either Borrower or any Guarantor, as applicable, (b) the issuance of Ownership Interests of Turning Point (i) to directors, officers and employees of Turning Point and its Subsidiaries pursuant to employee stock option plans (or other employee incentive plans or other compensation arrangements) approved by Turning Points board of directors (or similar governing body), (ii) to finance the purchase consideration (or a portion thereof) in connection with Capital Expenditures, and (iii) for such other purposes reasonably acceptable to the Administrative Agent in its sole discretion; provided that the issued Ownership Interests permitted by this clause (b) (other than issuances permitted by the foregoing clause (b)(i) to the extent no cash is received by Turning Point as consideration for such issuance) shall not exceed $5,000,000 in the aggregate during the term of this Agreement, with the value of each such issuance determined as of the date of such issuance, (c) the issuance of Ownership Interests of Turning Point in order to finance the purchase consideration (or a portion thereof) in connection with a Permitted Acquisition; provided that such Permitted Acquisition is consummated within six (6) months of such issuance, and (d) the issuance of Ownership Interests by Turning Point to pay the outstanding Second Lien Term Loans so long as (x) one hundred percent (100%) of the proceeds are used to pay the Second Lien Term Loans (or a portion thereof) and (y) the Administrative Agent and the Supermajority Lenders have given their prior written consent to such issuance and such payment of the Second Lien Term Loans (or a portion thereof)."
"Excluded Swap Obligation means, 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 not 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 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 Guarantee or security interest is or becomes illegal."
"Existing First Lien Term Loan Credit Agreement means that certain First Lien Term Loan Credit Agreement dated as of January 13, 2014, by and among Turning Point (f/k/a North Atlantic Holding Company, Inc.), as parent, NATC Holding, as holdings, NATC, as borrower, the lenders party thereto and the Existing First Lien Administrative Agent."
"FATCA means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version of such sections that are substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof (including any Revenue Ruling, Revenue Procedure Notice or similar guidance issued by the U.S. Internal Revenue Service as a precondition to relief or exemption from taxes under such provisions), and any agreements entered into pursuant to Section 1471(b)(1) of the Code and any intergovernmental agreement entered into in connection with the implementation of such Sections."
"Fronting Exposure means, at any time there is a Defaulting Lender, (a) with respect to the L/C Issuer, such Defaulting Lenders Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lenders participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with Section 4, and (b) with respect to the Swing Line Lender, such Defaulting Lenders Percentage of outstanding Swing Loans other than Swing Loans as to which such Defaulting Lenders participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with Section 4."
"(ii) no Interest Period with respect to any portion of the Priority Term Loans, Second Out Term Loans, Incremental Priority Term Loans or Incremental Second Out Term Loans consisting of Eurodollar Loans shall extend beyond a date on which the Borrowers are required to make a scheduled payment of principal on the Priority Term Loans, Second Out Term Loans, Incremental Priority Term Loans or Incremental Second Out Term Loans, as applicable, unless the sum of (A) the aggregate principal amount of the Priority Term Loans, Second Out Term Loans, Incremental Priority Term Loans or Incremental Second Out Term Loans, as applicable, that are Base Rate Loans plus (B) the aggregate principal amount of the Priority Term Loans, Second Out Term Loans, Incremental Priority Term Loans, or Incremental Second Out Term Loans, as applicable, that are Eurodollar Loans with Interest Periods expiring on or before such date equals or exceeds the principal amount to be paid on the Priority Term Loans, Second Out Term Loans, Incremental Priority Term Loans, or Incremental Second Out Term Loans, as applicable, on such payment date;"
"Material Contract means (a) the Bollore Distribution Agreements, (b) the Swedish Match Agreement, (c) the JJA Supply Agreement, (d) the Durfort Production Agreement, (e) the Second Lien Loan Documents, (f) any contract or agreement, written or oral, of any Loan Party involving monetary liability of or to any such Person in an amount in excess of $10,000,000 per annum or (g) any other contract or agreement, written or oral, of any Loan Party, the breach, nonperformance, cancellation or failure to renew of which could reasonably be expected to have a Material Adverse Effect."
"(2) no default with respect to which would permit (upon notice, lapse of time or both) any holder of any other Indebtedness of either Borrower or any of its Subsidiaries to declare a default under such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity; and"
"Sanctions Lists means, and includes, (a) the list of the Specially Designated Nationals and Blocked Persons maintained by OFAC, (b) the list of Sectoral Sanctions Identifications maintained by the U.S. Department of Treasury, (c) the list of Foreign Sanctions Evaders maintained by the U.S. Department of Treasury, and (d) any similar list maintained by the U.S. State Department, the U.S. Department of Commerce, the U.S. Department of Treasury, or any other U.S. Governmental Authority, or maintained by a Canadian Governmental Authority, the United Nations Security Council, or the European Union."
"Solvent or Solvency means, with respect to any Person on any date of determination, that on such date (a) the fair value of the property and assets of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the property and 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 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."
"Tobacco Requirements means and includes all Legal Requirements applicable to the importation, exportation, manufacture, sale or distribution of green or processed tobacco, any product made or derived from tobacco that is intended for human consumption and any component, part, or accessory of any such tobacco product, including cigarettes, cigarette tobacco, roll-your-own tobacco, smokeless tobacco, cigarette papers and tubes or electronic cigarettes, which Legal Requirements include the following: the Federal Food, Drug and Cosmetics Act, the Family Smoking Prevention and Tobacco Control Act, the Federal Cigarette Labeling and Advertising Act of 1966, the Comprehensive Smoking Education Act of 1984, the Comprehensive Smokeless Tobacco Health Education Act of 1986, the Alcohol, Drug Abuse and Mental Health Administration (ADAMHA) Reorganization Act of 1992, the Prevent All Cigarette Trafficking Act of 2009, and all rules and regulations issued pursuant to each and all of the foregoing, including Good Manufacturing Practice Regulations as promulgated from time to time by the Food and Drug Administration, and the Tobacco Master Settlement Agreement, and any and all Legal Requirements, rules and regulations promulgated by the Federal Trade Commission, TTB, the Federal Communications Commission, the U.S. Environmental Protection Agency, the U.S. Department of Agriculture, the U.S. Customs and Border Protection, and the U.S. Center for Disease Control and Prevention (the CDC) and the CDCs Office on Smoking and Health."
"VaporBeast Seller Debt means the indebtedness evidenced by those certain five unsecured promissory notes, each dated as of November 30, 2016, made by NTC in favor of (a) Timothy B. Campbell, in the original principal amount of $660,000, (b) Thomas J. Metzler, in the original principal amount of $200,000, (c) Timothy B. Cady, in the original principal amount of $540,000, (d) Mark M. Howard, in the original principal amount of $540,000, and (e) Sheilla V. Andrin, in the original principal amount of $60,000."
"Weighted Average Yield means, with respect to any Loan on any date of determination, the weighted average yield to maturity, in each case, based on the interest rate applicable to such Loan on such date (including any Eurodollar floor but only to the extent an increase in the Eurodollar floor applicable to the existing Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the Eurodollar floor (but not the interest rate margin) applicable to the existing Loans shall be increased to the extent of such differential between interest rate floors) and giving effect to all upfront, origination or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed fouryear life to maturity or, if the actual maturity date falls earlier than four years, the lesser number of years) payable with respect to such Loan (but excluding such upfront or similar fees to the extent they constitute commitment, arrangement or similar fees that are not distributed to Lenders generally)."
"Section 1.3. Accounting Terms; GAAP. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Borrowers notify the Administrative Agent that the Borrowers request an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith."
"Section 1.4. Rounding. Any financial ratios required to be maintained pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under 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)."
"(b) Second Out Term Loan Commitment. Each Lender severally and not jointly agrees, subject to the terms and conditions hereof, to make a loan (each individually a Second Out Term Loan and, collectively, the Second Out Term Loans) in Dollars to the Borrowers in the amount of such Lenders Second Out Term Loan Commitment. The Second Out Term Loans shall be advanced in a single Borrowing on the Closing Date, at which time the Second Out Term Loan Commitments shall expire. As provided in Section 2.5(a), and subject to the terms hereof, the Borrowers may elect that all or any part of the Second Out Term Loans be outstanding as Base Rate Loans or Eurodollar Loans. No amount of any Second Out Term Loan may be reborrowed once it is repaid."
"(b) Applications. At any time before the Revolving Credit Termination Date, the L/C Issuer shall, at the request of the Borrowers Agent, issue one or more Letters of Credit in Dollars, in form and substance acceptable to the L/C Issuer, with expiration dates no later than the earlier of twelve (12) months from the date of issuance (or which are cancelable not later than twelve (12) months from the date of issuance and each renewal) or thirty (30) days prior to the Revolving Credit Termination Date (unless the Borrowers have provided Cash Collateral in compliance with the requirements of Section 4 as security for such Letter of Credit in an amount equal to 105% of the full amount then available for drawing under such Letter of Credit) in an aggregate face amount as set forth above, upon the receipt of a duly executed application for the relevant Letter of Credit in the form then customarily prescribed by the L/C Issuer for the Letter of Credit requested (each an Application). Notwithstanding anything contained in any Application to the contrary: (i) the Borrowers shall pay fees in connection with each Letter of Credit as set forth in Section 2.13(b), and (ii) if the 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 Borrowers obligation to reimburse the L/C Issuer for the amount of such drawing shall bear interest (which the Borrowers hereby promise to pay) from and after the date such drawing is paid at a rate per annum equal to 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). Without limiting the foregoing, the L/C Issuers obligation to issue, amend or extend the expiration date of a Letter of Credit is subject to the terms or conditions of this Agreement (including the conditions set forth in Section 3.1 and the other terms of this Section 2.3). Notwithstanding anything herein to the contrary, the L/C issuer shall be under no obligation to issue, extend or amend any Letter of Credit if any Lender is at such time a Defaulting Lender hereunder unless the Borrowers or such Defaulting Lender has provided Cash Collateral in compliance with Section 4. sufficient to eliminate the L/C Issuers risk with respect to such Defaulting Lender."
"(c) The Reimbursement Obligations. Subject to Section 2.3(b), the obligation of the Borrowers to reimburse the L/C Issuer for all drawings under a Letter of Credit (a Reimbursement Obligation) shall be governed by the Application related to such Letter of Credit and this Agreement, except that reimbursement shall be paid by no later than 12:00 Noon (Cincinnati time) on the date which each drawing is to be paid if the Borrowers have been informed of such drawing by the L/C Issuer on or before 11:30 a.m. (Cincinnati time) on the date when such drawing is to be paid or, if notice of such drawing is given to the Borrowers after 11:30 a.m. (Cincinnati time) on the date when such drawing is to be paid, by the end of such day, in all instances in immediately available funds at the Administrative Agents principal office in Cincinnati, Ohio or such other office as the Administrative Agent may designate in writing to the Borrowers, and the Administrative Agent shall thereafter cause to be distributed to the L/C Issuer such amount(s) in like funds. If the Borrowers do not make any such reimbursement payment on the date due and the Participating Lenders fund their participations in the manner set forth in Section 2.3(d) below, then all payments thereafter received by the Administrative Agent in discharge of any of the relevant Reimbursement Obligations shall be distributed in accordance with Section 2.3(d) below. In addition, for the benefit of the Administrative Agent, the L/C Issuer and each Lender, the Borrowers agree that, notwithstanding any provision of any Application, its obligations under this Section 2.3(c) and each Application shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement and the relevant Application, under all circumstances whatsoever, and irrespective of any claim or defense that either Borrower may otherwise have against the Administrative Agent, the L/C Issuer or any Lender, including (i) any lack of validity or enforceability of any Loan Document; (ii) any amendment or waiver of or any consent to departure from all or any of the provisions of any Loan Document; (iii) the existence of any claim, setoff, defense, or other right of either Borrower may have at any time against a beneficiary of a Letter of Credit (or any Person for whom a beneficiary may be acting), the Administrative Agent, the L/C Issuer, any Lender or any other Person, whether in connection with this Agreement, another Loan Document, the transaction related to the Loan Document or any unrelated transaction; (iv) any statement or any other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (v) payment by the Administrative Agent or a L/C Issuer under a Letter of Credit against presentation to the Administrative Agent or a L/C Issuer of a draft or certificate that does not comply with the terms of the Letter of Credit; or (vi) any other act or omission to act or delay of any kind by the Administrative Agent or a L/C Issuer, any Lender or any other Person or any other event or circumstance whatsoever that might, but for the provisions of this Section 2.3(c), constitute a legal or equitable discharge of the Borrowers obligations hereunder or under an Application. None of the Administrative Agent, the Lenders, or the L/C Issuer 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 L/C Issuer; provided that the foregoing shall not be construed to excuse the L/C Issuer from liability to the Borrowers to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by each Borrower and each other Loan Party to the extent permitted by applicable Legal Requirements) suffered by either Borrower or any other Loan Party that are caused by the L/C Issuers 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 the L/C Issuer (as determined by a court of competent jurisdiction by final and nonappealable judgment), the L/C Issuer shall be deemed to have exercised 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, the L/C Issuer 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."
"Section 2.4. Applicable Interest Rates. (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, but excluding, the date of repayment thereof at a rate per annum equal to the sum of the Applicable Margin plus the Base Rate from time to time in effect, payable in arrears by the Borrowers on each Interest Payment Date and at maturity (whether by acceleration or otherwise)."
"Section 2.7. Maturity of Loans. (a) Scheduled Payments of Priority Term Loans. The Borrowers shall make principal payments on the Priority Term Loans in equal installments on the last Business Day of each March, June, September, and December in each year, commencing with the calendar quarter ending June 30, 2017 (unless any such day is not a Business Day, in which event such payment is due on the immediately preceding Business Day) with the amount of each such principal installment then due equal to the amount expressed next to the due date (unless any such day is not a Business Day, in which event such payment is due on the immediately preceding Business Day) for such installment on the following schedule:"
"; it being further agreed that a final scheduled payment comprised of all principal and interest not sooner paid on the Second Out Term Loans, shall be due and payable on the Second Out Term Loan Termination Date. Each principal payment on the Second Out Term Loans shall be applied to the Lenders holding the Second Out Term Loans pro rata based upon their Second Out Term Loan Percentages."
"(ii) If after the Closing Date either Borrower or any Subsidiary shall issue any new Ownership Interests (other than Excluded Equity Issuances) or incur or assume any Indebtedness other than that permitted by Section 7.1 (other than Indebtedness permitted by Section 7.1(m)), the Borrowers shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance, incurrence or assumption to be received by or for the account of such Borrower or such Subsidiary in respect thereof. Promptly upon receipt by such Borrower or such Subsidiary of Net Cash Proceeds of such issuance, incurrence or assumption the Borrowers shall prepay the Obligations in the amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied first to the outstanding Priority Term Loans and Incremental Priority Term Loans, if any, until paid in full (such payments being applied to the remaining amortization payments on the Priority Term Loans and Incremental Priority Term Loans, if any, in the inverse order of maturity), then to the outstanding Second Out Term Loans and Incremental Second Out Term Loans, if any, until paid in full (such payments being applied to the remaining payments on the Second Out Term Loans and Incremental Second Out Term Loans, if any, in the inverse order of maturity), then to the Revolving Loans until paid in full, and then to the Swing Loans. The Borrowers acknowledge that their performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 7.1 or any other terms of this Agreement."
"(f) Blockage and Turnover Provision. Notwithstanding anything to the contrary herein, unless the Required Priority Lenders otherwise agree, prior to Priority Lien Obligations Discharge Date, if any Material Event of Default exists, no voluntary prepayment of the Second Out Lien Obligations shall be permitted. If any Secured Party collects or receives any amounts received on account of the Obligations to which it is not entitled under this Section 2.9, such Secured Party shall hold the same in trust for the applicable Secured Parties entitled thereto and shall forthwith deliver the same to the Administrative Agent, for the account of such Secured Parties, to be applied in accordance with this Section 2.9, as applicable in each case until the prior payment in full in cash of the applicable Obligations of such Secured Parties."
"Section 2.11. Swing Loans. (a) Generally. Subject to the terms and conditions hereof, as part of the Revolving Credit, the Swing Line Lender may, in its discretion, make loans in Dollars to the Borrowers under the Swing Line (individually a Swing Loan and collectively the Swing Loans) which shall not in the aggregate at any time outstanding exceed the Swing Line Sublimit; provided, however, the sum of the aggregate principal amount of Revolving Loans, Swing Loans and L/C Obligations at any time outstanding shall not exceed the sum of all Revolving Credit Commitments in effect at such time. The Swing Loans may be availed of by the Borrowers from time to time and borrowings thereunder may be repaid and used again during the period ending on the Revolving Credit Termination Date; provided that each Swing Loan must be repaid on the last day of the Interest Period applicable thereto. Each Swing Loan shall be in a minimum amount of $250,000 or such greater amount which is an integral multiple of $100,000. Notwithstanding anything herein to the contrary, the Swing Line Lender shall be under no obligation to make any Swing Loan if any Lender is at such time a Defaulting Lender hereunder unless the Borrowers have, or such Defaulting Lender has, provided Cash Collateral in compliance with Section 4 sufficient to eliminate the Swing Line Lenders risk with respect to such Defaulting Lender."
"(b) Interest on Swing Loans. Each Swing Loan shall bear interest until maturity (whether by acceleration or otherwise) at a rate per annum equal to, at the option of the Borrowers, (i) the sum of the Base Rate plus the Applicable Margin for Base Rate Loans under the Revolving Credit as from time to time in effect (computed on the basis of a year of 365 or 366 days, as the case may be, for the actual number of days elapsed) or (ii) the Swing Line Lenders Quoted Rate (computed on the basis of a year of 360 days for the actual number of days elapsed). Interest on each Swing Loan shall be due and payable prior to such maturity on the last day of each Interest Period applicable thereto."
"(d) Any Lender may request that its Loans be evidenced by a promissory note or notes in the forms of Exhibit D1 (in the case of its Priority Term Loan and referred to herein as a Priority Term Note), D-2 (in the case of its Second Out Term Loan and referred to herein as a Second Out Term Note), D3 (in the case of its Revolving Loans and referred to herein as a Revolving Note), D4 (in the case of its Swing Loans and referred to herein as a Swing Note), D5 (in the case of its Incremental Priority Term Loans, if any, and referred to herein as an Incremental Priority Term Note) and D6 (in the case of its Incremental Second Out Term Loans, if any, and referred to herein as an Incremental Second Out Term Note), as applicable. In such event, the Borrowers shall prepare, execute and deliver to such Lender a Note payable to the order of such Lender in the amount of the Priority Term Loan, Second Out Term Loan, Revolving Credit Commitment, Swing Line Sublimit, Incremental Priority Term Loan or Incremental Second Out Term Loan, as applicable. Thereafter, the Loans evidenced by such Note or Notes and interest thereon shall at all times (including after any assignment pursuant to Section 11.11) be represented by one or more Notes payable to the order of the payee named therein or any assignee pursuant to Section 11.11, 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 subsections (a) and (b) above."
"Section 2.14. Account Debit Elective. Upon written confirmation (including, for the avoidance of doubt, email confirmation) from a Responsible Officer of the Borrowers, the Borrowers authorize the Administrative Agent to charge any of the Borrowers deposit accounts maintained with the Administrative Agent for the amounts necessary to pay the then due Obligations."
"(b) Conditions. No Incremental Facility shall become effective under this Section 2.16 unless, after giving effect to such Incremental Facility, the Loans and other extensions of credit to be made thereunder (and assuming, in the case of an Incremental Revolving Credit Commitment, that the entire amount of such Incremental Revolving Credit Commitment, is funded), and the application of the proceeds therefrom:"
"(i) no Default or Event of Default shall exist, including with respect to the covenants contained in Section 7.15 on a Pro Forma Basis; provided that, the Consolidated Total Leverage Ratio and the Consolidated Senior Leverage Ratio, in each case on a Pro Forma Basis after giving effect to such Incremental Facility (and assuming that any Incremental Revolving Credit Commitments are accompanied by a borrowing of Incremental Revolving Loans in the full amount of such commitments), shall be no greater than the most recently applicable maximum Consolidated Total Leverage Ratio and maximum Consolidated Total Senior Leverage Ratio under Sections 7.15(a) and (b), respectively, with respect to which the Borrowers have delivered the duly completed Officers Compliance Certificate required by Section 6.2(a) and the financial statements required by Sections 6.1(a) or (b) in connection therewith, and"
"Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrowers, take any and all action as may be reasonably necessary to ensure that all Incremental Priority Term Loans or Incremental Second Out Term Loans which are not separate tranches, when originally made, are included in each Borrowing of outstanding Priority Term Loans or Second Out Term Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding Borrowing of Priority Term Loans or Second Out Term Loans that are Eurodollar Loans to be converted into a Borrowing of Priority Term Loans or Second Out Term Loans, as applicable, that are Base Rate Loans on the date of each such Incremental Priority Term Loan or Incremental Second Out Term Loan, or by allocating a portion of each such Incremental Priority Term Loan or Second Out Term Loan to each outstanding Borrowing of Priority Term Loans or Second Out Term Loans, as applicable, that are Eurodollar Loans on a pro rata basis. In addition, the scheduled amortization payments under Section 2.7 required to be made after the making of any Incremental Priority Term Loans or Incremental Second Out Term Loans which are not separate tranches shall be ratably increased by the aggregate principal amount of such Incremental Priority Term Loans or Incremental Second Out Term Loans for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders holding Priority Term Loans or Second Out Term Loans were entitled before such recalculation."
"Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrowers, take any and all action as may be reasonably necessary to ensure that, upon the effectiveness of each Incremental Revolving Credit Commitment, (i) Revolving Loans made under such Incremental Revolving Credit Commitment are included in each Borrowing of outstanding Revolving Loans on a pro rata basis, and (ii) the Lender providing each Incremental Revolving Credit Commitment shares ratably in the aggregate principal amount of all outstanding Revolving Loans and participations in Swing Loans and L/C Obligations. This may be accomplished by requiring each outstanding Borrowing of Revolving Loans that are Eurodollar Loans to be converted into a Borrowing of Revolving Loans that are Base Rate Loans on the date of each such Incremental Revolving Loan, or by allocating a portion of each such Incremental Revolving Loan to each outstanding Borrowing of Revolving Loans that are Eurodollar Loans on a pro rata basis."
"Any conversion of Eurodollar Loans to Base Rate Loans required by this Section 2.16(d) shall be subject to Section 9.1. If any Loan advanced pursuant to an Incremental Facility is to be allocated to an existing Interest Period for a Borrowing of Eurodollar Loans, then the interest rate thereon for such Interest Period shall be as set forth in the applicable Incremental Facility joinder agreement or amendment."
"(d) in the case of a Borrowing, the Administrative Agent shall have received the notice required by Section 2.5, in the case of the issuance of any Letter of Credit the L/C Issuer shall have received a duly completed Application for such Letter of Credit together with any fees required to be paid at such time under Section 2.13(b), and, in the case of an extension or increase in the amount of a Letter of Credit, the L/C Issuer shall have received a written request therefor in a form reasonably acceptable to the L/C Issuer together with fees required to be paid at such time under Section 2.13(b); and"
"(t) each of the Lenders shall have received, sufficiently in advance of the Closing Date, all documentation and other information requested by any such Lender required by bank regulatory authorities under applicable know your customer and antimoney laundering rules and regulations, including the Patriot Act; and the Administrative Agent shall have received a fully executed IRS Form W9 (or its equivalent) for each of the Loan Parties;"
"Immediately upon the request of the Administrative Agent, the L/C Issuer, or the Swing Line Lender at any time that there shall exist a Defaulting Lender, or otherwise as required hereby, including as required by Sections 2.3(b), 8.4 and 9.6(a)(v), the Borrowers shall deliver Cash Collateral to the Administrative Agent in an amount sufficient to cover all Fronting Exposure (after giving effect to Section 9.6(a)(iv) and any Cash Collateral provided by the Defaulting Lender, if applicable) with respect to such Defaulting Lender or to cover such other amount required hereby."
"(c) No Loan Party nor any Subsidiary thereof has received any notice of violation, alleged violation, noncompliance, liability or potential liability regarding environmental matters, Hazardous Materials, or compliance with Environmental Laws or permits required under Environmental Laws that, if adversely determined, could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, nor does any Loan Party or any Subsidiary thereof have knowledge or reason to believe that any such notice will be received or is being threatened;"
"(d) Hazardous Materials have not been transported or disposed of to or from the properties currently or formerly owned, leased or operated by any Loan Party or any Subsidiary thereof in material violation of, or in a manner or to a location which could give rise to material liability under, Environmental Laws, nor have any Hazardous Materials been generated, treated, stored or disposed of at, on or under any of such properties in violation of, or in a manner that could give rise to material liability under, any applicable Environmental Laws; and"
"Section 5.12. Material Contracts; Customers and Suppliers. (a) Schedule 5.12 sets forth a complete and accurate list of all Material Contracts of each Loan Party and each Subsidiary thereof in effect as of the Closing Date. Other than as set forth in Schedule 5.12, as of the Closing Date, each such Material Contract is, and after giving effect to the consummation of the transactions contemplated by the Loan Documents will be, in full force and effect in accordance with the terms thereof. To the extent requested by the Administrative Agent, each Loan Party and each Subsidiary thereof has delivered to the Administrative Agent a true and complete copy of each Material Contract required to be listed on Schedule 5.12 or any other Schedule hereto. As of the Closing Date, no Loan Party nor any Subsidiary thereof nor, to its knowledge, any other party thereto is in breach of or in default under any Material Contract; and"
"Section 5.16. No Material Adverse Change. Since December 31, 2015, there has been no material adverse change in the business, operations financial condition, Property, or liabilities (actual or contingent) of Turning Point and its Subsidiaries, taken as a whole, and no event has occurred or condition arisen, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect."
"Section 5.23. Disclosure. The Borrowers and/or their Subsidiaries have disclosed to the Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to which any Loan Party or any Subsidiary thereof is subject, and all other matters known to them, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. No financial statement, material report, material certificate or other material written information furnished by or on behalf of any Loan Party or any Subsidiary thereof to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished), taken together as a whole, contains any untrue statement of a material 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; provided that, with respect to projected financial information, pro forma financial information, estimated financial information and other projected or estimated information, such information was prepared in good faith based upon assumptions believed to be reasonable at the time (it being recognized by the Lenders that projections are not to be viewed as facts and that the actual results during the period or periods covered by such projections may vary from such projections and that such variations may be material)."
"(b) Quarterly Financial Statements. As soon as practicable and in any event within fortyfive (45) days after the end of the first three (3) fiscal quarters of each Fiscal Year (commencing with the fiscal quarter ended March 31, 2017, an unaudited Consolidated balance sheet of Turning Point as of the close of such fiscal quarter and unaudited Consolidated statements of income, retained earnings and cash flows and a report containing managements discussion and analysis of such financial statements for the fiscal quarter then ended and that portion of the Fiscal Year then ended, including the notes thereto, prepared by Turning Point in accordance with GAAP and, if applicable, containing disclosure of the effect on the financial position or results of operations of any change in the application of accounting principles and practices during the period."
"(c) True and Complete Financial Statements. As of the date of their delivery, the annual financial statements required to be delivered under Section 6.1(a) and the quarterly financial statements required to be delivered under Section 6.1(b) will be complete and correct in all material respects and will fairly present in all material respects on a Consolidated basis the assets, liabilities and financial position of Turning Point as at such dates, and the results of the operations and changes of financial position for the periods then ended (other than customary year-end adjustments for unaudited financial statements and the absence of footnotes from unaudited financial statements). All such financial statements, including the related schedules and notes thereto, will be prepared in accordance with GAAP. As of the date of delivery of the annual financial statements, Turning Point on a Consolidated basis does not have contingent liabilities or judgments, orders or injunctions against it that are material to it other than as indicated on such financial statements."
"(d) Annual Budget or Projections. As soon as practicable and in any event within sixty (60) days after the end of each Fiscal Year, a Consolidated budget or Consolidated projections of Turning Point for the ensuing four (4) fiscal quarters following the end of such Fiscal Year, in form and detail satisfactory to the Administrative Agent, accompanied by a certificate from a Responsible Officer of Turning Point to the effect that such budget or projections contain good faith estimates (utilizing assumptions believed to be reasonable at the time of delivery of such budget or projections) of the financial condition and operations of Turning Point for such period."
"The Borrowers hereby acknowledge that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, Borrower Materials) by posting the Borrower Materials on Debt Domain, IntraLinks, SyndTrak Online or another similar electronic system (the Platform) and (b) certain of the Lenders may be publicside Lenders (i.e., Lenders that do not wish to receive Material NonPublic Information with respect to Turning Point or its Affiliates or its or their securities) (each, a Public Lender). The Borrowers hereby agree that they will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked PUBLIC which, at a minimum, means that the word PUBLIC shall appear prominently on the first page thereof; (x) by marking Borrower Materials PUBLIC, the Borrowers shall be deemed to have authorized the Administrative Agent, the Arrangers and the Lenders to treat such Borrower Materials as not containing any Material NonPublic Information (although it may be sensitive and proprietary) with respect to Turning Point or its Affiliates or its or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.12); (y) all Borrower Materials marked PUBLIC are permitted to be made available through a portion of the Platform designated Public Investor; and (z) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked PUBLIC as being suitable only for posting on a portion of the Platform not designated Public Investor. Notwithstanding the foregoing, the Borrowers shall be under no obligation to mark any Borrower Materials PUBLIC."
"(b) Maintain, in full force and effect in all material respects, each and every license, permit, certification, qualification, approval or franchise issued by any Governmental Authority (each a License) required for each of them to conduct their respective businesses as presently conducted, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect."
"Section 6.10. Environmental Laws. In addition to and without limiting the generality of Section 6.9, (a) comply with, and use commercially reasonable efforts to ensure such compliance by all tenants and subtenants with, all applicable Environmental Laws and obtain, comply with and maintain, and use commercially reasonable efforts to 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 and (b) conduct and complete all investigations, studies, sampling and testing, and all remedial, removal and other actions required under Environmental Laws or by a Governmental Authority, and promptly comply with all lawful orders and directives of any Governmental Authority regarding Environmental Laws, except in each case as could not reasonably be expected to have a Material Adverse Effect."
"(d) Real Property Collateral. (i) Promptly after the acquisition by any Loan Party of any fee owned real property with a fair market value in excess of $2,000,000 that is not subject to the existing Collateral Documents (and, in any event, within ten (10) days after such acquisition), notify the Administrative Agent and (ii) promptly thereafter (and in any event, within sixty (60) days of such acquisition, as such time period may be extended by the Administrative Agent with the consent of the Required Lenders), deliver such mortgages, deeds of trust, flood insurance certificates, title insurance policies, environmental reports, surveys and other documents reasonably requested by the Administrative Agent necessary to grant and perfect a first priority Lien (subject to Permitted Prior Liens) on such real property in favor of the Administrative Agent, for the benefit of the Secured Parties, all in form and substance reasonably acceptable to the Administrative Agent, including those certificates, documents and information listed on Schedule 6.14(d)."
"(g) Second Lien Loan Documents. Notwithstanding anything herein to the contrary, the Borrowers and the other Loan Parties shall execute and deliver to the Administrative Agent, for the benefit of the Secured Parties, mortgages, charges, deeds of trust, deposit account control agreements, collateral access agreements and other security documents to the extent provided to the Second Lien Administrative Agent or executed in respect of the Second Lien Obligations (as defined in the Intercreditor Agreement)."
"(c) Liens for taxes, assessments and other governmental charges or levies (excluding any Lien imposed pursuant to any of the provisions of ERISA or Environmental Laws) (i) not yet due or as to which the period of grace (not to exceed thirty (30) days), if any, related thereto has not expired or (ii) which do not have priority over Agents Liens and in respect of which the underlying taxes, assessments, or charges or levies are the subject of Permitted Protests;"
"(h) Liens securing Indebtedness permitted under Section 7.1(d); provided that (i) such Liens shall be created substantially simultaneously with the acquisition, repair, improvement or lease, as applicable, of the related Property, (ii) such Liens do not at any time encumber any property other than the Property financed by such Indebtedness and (iii) the principal amount of Indebtedness secured by any such Lien shall at no time exceed one hundred percent (100%) of the original price for the purchase, repair improvement or lease amount (as applicable) of such Property at the time of purchase, repair, improvement or lease (as applicable);"
"Section 7.4. Fundamental Changes. Merge, consolidate (it being acknowledged that the term consolidate does not include any consolidation occurring solely pursuant to GAAP of the financial results of Turning Point with the financial results of Standard General or SDOI) or enter into any similar combination with, or enter into any Asset Disposition of all or substantially all of its assets (whether in a single transaction or a series of transactions) with, any other Person or liquidate, windup or dissolve itself (or suffer any liquidation or dissolution) except:"
"(c) any Whollyowned Subsidiary of either Borrower may merge with or into the Person such Whollyowned Subsidiary was formed to acquire in connection with any acquisition permitted hereunder (including any Permitted Acquisition permitted pursuant to Section 7.3(e)); provided that, in the case of any merger involving a Whollyowned Subsidiary that is a Domestic Subsidiary, (i) a Guarantor shall be the continuing or surviving entity or (ii) simultaneously with such transaction, the continuing or surviving entity shall become a Guarantor and such Borrower shall comply with Section 6.14 in connection therewith; and"
"Section 7.7. Transactions with Affiliates. Directly or indirectly enter into any transaction, including any purchase, sale, lease or exchange of Property, the rendering of any service or the payment of any management, advisory or similar fees, with (a) any officer, director, holder of any Ownership Interests in, or other Affiliate of, either Borrower or any of its Subsidiaries or (b) any Affiliate of any such officer, director or holder, other than:"
"Section 7.12. Amendments of Other Documents. Amend, modify, waive or supplement (or permit the modification, amendment, waiver or supplement of) any of the terms or provisions of (i) the Bollore Distribution Agreements, the JJA Supply Agreement, the Swedish Match Agreement, or the Durfort Production Agreement, in each case, in any respect which would reasonably be expected to have a Material Adverse Effect or would materially and adversely affect the rights or interests of the Administrative Agent and the Lenders hereunder, without the prior written consent of the Required Lenders or (ii) any other Material Contract in any respect which would reasonably be expected to have a Material Adverse Effect or would materially and adversely affect the rights or interests of the Administrative Agent and the Lenders hereunder, without the prior written consent of the Administrative Agent."
"(c) Misrepresentation. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any Loan Party or any Subsidiary thereof in this Agreement, in any other Loan Document, or in any document delivered in connection herewith or therewith that is subject to materiality or Material Adverse Effect qualifications shall be incorrect or misleading in any respect when made or deemed made, or any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any Loan Party or any Subsidiary thereof in this Agreement, any other Loan Document, or in any document delivered in connection herewith or therewith that is not subject to materiality or Material Adverse Effect qualifications shall be incorrect or misleading in any material respect when made or deemed made."
"(e) Default in Performance of Other Covenants and Conditions. Any Loan Party shall default in the performance or observance of any term, covenant, condition or agreement contained in this Agreement (other than as specifically provided for in this Section 8.1) or any other Loan Document and such default shall continue for a period of thirty (30) days (provided that, notwithstanding anything to the contrary in the foregoing, with respect to Section 6.13, the applicable period shall be five (5) Business Days and not thirty (30) days) after the earlier of (i) the Administrative Agents delivery of written notice thereof to the Borrowers and (ii) a Responsible Officer of any Loan Party having obtained knowledge thereof."
"(k) ERISA Events. The occurrence of any of the following events, in each case except as could not reasonably be expected to have a Material Adverse Effect: (i) any Loan Party or any ERISA Affiliate fails to make full payment when due of all amounts which, under the provisions of any Pension Plan or Sections 412 or 430 of the Code, any Loan Party or any ERISA Affiliate is required to pay as contributions thereto, (ii) a Termination Event or (iii) any Loan Party or any ERISA Affiliate as employers under one or more Multiemployer Plans makes a complete or partial withdrawal from any such Multiemployer Plan."
"Section 9.2. Illegality. Notwithstanding any other provisions of this Agreement or any other Loan Document, if at any time any Change in Law makes it unlawful for any Lender to make or continue to maintain any Eurodollar Loans or to perform its obligations as contemplated hereby, such Lender shall promptly give notice thereof to the Borrowers and the Administrative Agent and such Lenders obligations to make or maintain Eurodollar Loans under this Agreement shall be suspended until it is no longer unlawful for such Lender to make or maintain Eurodollar Loans. The Borrowers shall prepay on demand the outstanding principal amount of any such affected Eurodollar Loans, together with all interest accrued thereon and all other amounts then due and payable to such Lender under this Agreement; provided, however, subject to all of the terms and conditions of this Agreement, the Borrowers may then elect to borrow the principal amount of the affected Eurodollar Loans from such Lender by means of Base Rate Loans from such Lender, which Base Rate Loans shall not be made ratably by the Lenders but only from such affected Lender."
"and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan, or to increase the cost to such Lender, the L/C Issuer or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender, L/C Issuer or other Recipient hereunder (whether of principal, interest or any other amount) then, upon request of such Lender, L/C Issuer or other Recipient, the Borrowers will pay to such Lender, L/C Issuer or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, L/C Issuer or other Recipient, as the case may be, for such additional costs incurred or reduction suffered."
"(iv) Reallocation of Participations to Reduce Fronting Exposure. All or any part of such Defaulting Lenders participation in L/C Obligations and Swing Loans shall be reallocated among the NonDefaulting Lenders in accordance with their respective Percentages (calculated without regard to such Defaulting Lenders Commitment) but only to the extent that (A) the conditions set forth in Section 3.1 are satisfied at such time (and, unless the Borrowers shall have otherwise notified the Administrative Agent at the time, the Borrowers shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (B) such reallocation does not cause the aggregate principal amount of Revolving Loans and participating interests in L/C Obligations and Swing Loans of any NonDefaulting Lender to exceed such NonDefaulting Lenders Revolving Credit Commitment. Subject to Section 11.28, 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 NonDefaulting Lender as a result of such NonDefaulting Lenders increased exposure following such reallocation."
"Section 10.1. Appointment and Authorization of Administrative Agent. Each Lender and the L/C Issuer hereby appoints Fifth Third Bank, an Ohio banking corporation, to act on its behalf as the Administrative Agent under the Loan Documents and authorizes the Administrative Agent to take such action as Administrative Agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Section 10 are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and neither Borrower nor any other Loan Party shall have rights as a thirdparty beneficiary of any of such provisions. It is understood and agreed that the use of the term agent in this Agreement or in any other Loan Document (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Legal Requirements. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties."
"Section 10.7. Resignation of Administrative Agent and Successor Administrative Agent. (a) The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuer, and the Borrowers. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrowers, to appoint a successor, which may be any Lender hereunder or any commercial bank organized under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $200,000,000 and, so long as no Event of Default shall have occurred and be continuing, such appointment shall be within the Borrowers consent (which shall not be unreasonably withheld). If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the Resignation Effective Date), then the retiring Administrative Agent may (but shall not be obligated to), on behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date."
"Section 10.8. L/C Issuer and Swing Line Lender. The 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. The L/C Issuer and the Swing Line Lender shall each have all of the benefits and immunities (a) provided to the Administrative Agent in this Section 10 with respect to any acts taken or omissions suffered by the 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 10, included the L/C Issuer and the Swing Line Lender, with respect to such acts or omissions and (b) as additionally provided in this Agreement with respect to such L/C Issuer or Swing Line Lender, as applicable."
"(i) to release any Lien on any Property granted to or held by the Administrative Agent under any Loan Document (A) upon the Facility Termination Date, (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 disposition permitted under the Loan Documents, or (C) subject to Section 11.4, 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."
"(e) Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Loan Parties have not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lenders failure to comply with the provisions of Section 11.11(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 the 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 the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the 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 the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this Section 11.1(e)."
"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 Section 11.3(b) below, shall be effective as provided in Section 11.3(b)."
"Section 11.4. 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 Borrowers; provided that no amendment, waiver or consent shall:"
"(f) except as otherwise permitted by this Section 11.4, change any provision of this Section 11.4 or reduce the percentages specified in the definitions of Required Lenders, Required Priority Lenders or Supermajority 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 directly affected thereby;"
"(c) Reimbursement by Lenders. To the extent that the Borrowers for any reason fail to indefeasibly pay any amount required under Section 11.5(a) or (b) to be paid by it to the Administrative Agent (or any subagent thereof), the L/C Issuer or 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 subagent), the L/C Issuer or 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 share of the Total Credit Exposure at such time, or if the Total Credit Exposure has been reduced to zero, then based on such Lenders share of the Total Credit Exposure immediately prior to such reduction) 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 the L/C Issuer or Swing Line Lender solely in its capacity as such, the Lenders shall be required to pay such unpaid amounts severally among them based on their Revolver Percentages (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought); provided, further, 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 subagent), the Swing Line Lender in its capacity as such, or the L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such subagent) or the L/C Issuer in connection with such capacity. The obligations of the Lenders under this Section 11.5(c) are several and not joint. The Administrative Agent shall be entitled to offset amounts received for the account of a Lender under this Agreement against unpaid amounts due from such Lender to the Administrative Agent hereunder (whether as fundings of participations, indemnities or otherwise), but shall not be entitled to offset against amounts owed to the Administrative Agent by any Lender arising outside of this Agreement and the other Loan Documents)."
"(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable Legal Requirements, each Borrower and each other Loan Party 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 referred to in Section 11.5(b) above 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 11.9. Reversal of Payments. To the extent any Loan Party makes a payment or payments to the Administrative Agent for the benefit of the Lenders or the Administrative Agent receives any payment or proceeds of the Collateral which payments or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any Debtor Relief Law, other applicable Legal Requirements or equitable cause, then, to the extent of such payment or proceeds repaid, the Obligations or part thereof intended to be satisfied shall be revived and continued in full force and effect as if such payment or proceeds had not been received by the Administrative Agent."
"(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lenders rights and obligations under this Agreement with respect to the Loan or the Commitment assigned, except that this clause (ii) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate Credits on a nonpro rata basis;"
"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 described in Section 11.4(a), (b), (c) or (d) that directly and adversely affects such Participant. The Borrowers agree that each Participant shall be entitled to the benefits of Sections 9.1, 9.4 and 11.1 (subject to the requirements and limitations therein, including the requirements under Section 11.1(g) (it being understood that the documentation required under Section 11.1(g) 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 Section 11.11(b); provided that such Participant (A) agrees to be subject to the provisions of Section 11.2 as if it were an assignee under Section 11.11(b); and (B) shall not be entitled to receive any greater payment under Sections 9.4 or 11.1 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 Borrowers request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 11.2(b) with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.6 as though it were a Lender; provided that such Participant agrees to be subject to Section 11.13 as though it were a Lender."
"Each Lender that sells a participation shall, acting solely for this purpose as a nonfiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts of (and stated interest on) 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 Section 5f.1031(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."
"(f) Notwithstanding anything to the contrary herein, if at any time the Administrative Agent assigns all of its Revolving Credit Commitments and Revolving Loans pursuant to subsection (b) above, the Administrative Agent may terminate the Swing Line. In the event of such termination of the Swing Line, the Borrowers shall be entitled to appoint another Lender to act as the successor Lender of Swing Loans hereunder (with such Lenders consent); provided, however, that the failure of the Borrowers to appoint a successor shall not affect the resignation of the Administrative Agent as the Swing Line Lender. If the Administrative Agent terminates the Swing Line, it shall retain all of the rights of the maker of Swing Loans provided hereunder with respect to Swing Loans made by it and outstanding as of the effective date of such termination, including the right to require Lenders to make Revolving Loans or fund participations in outstanding Swing Loans pursuant to Section 2.11. Notwithstanding anything to the contrary herein, if at any time the Administrative Agent assigns all of its Revolving Credit Commitments and Revolving Loans pursuant to subsection (b) above, the Administrative Agent may terminate its commitment pursuant to Section 2.3(a) to issue Letters of Credit. In the event of such termination of the Administrative Agents commitment to issue Letters of Credit pursuant to Section 2.3(a), the Borrowers shall be entitled to appoint another Lender to act as the successor L/C Issuer hereunder (with such Lenders consent); provided, however, that the failure of the Borrowers to appoint a successor shall not affect the resignation of the Administrative Agent as the L/C Issuer. If the Administrative Agent terminates its commitment to issue Letters of Credit pursuant to Section 2.3(a), it shall retain all of the rights of the L/C Issuer hereunder with respect to Letters of Credit made by it and outstanding as of the effective date of such termination, including the right to require Participating Lenders to fund their Participating Interests in such Letters of Credit pursuant to Section 2.3(d)."
"Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Legal Requirements, 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."
"(b) 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 paperbased recordkeeping system, as the case may be, to the extent and as provided for in any applicable Legal Requirements, 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."
"Section 11.22. Independent Effect of Covenants. The Borrowers expressly acknowledge and agree that each covenant contained in Sections 6 or 7 hereof shall be given independent effect. Accordingly, the Borrowers shall not engage in any transaction or other act otherwise permitted under any covenant contained in Sections 6 or 7 if, before or after giving effect to such transaction or act, the Borrowers shall or would be in breach of any other covenant contained in Sections 6 or 7."
"Section 11.27. Subordination. Each Loan Party (a Subordinating Loan Party) hereby subordinates the payment of all obligations and indebtedness of any other Loan Party owing to it, whether now existing or hereafter arising, including, but not limited to, any obligation of any such other Loan Party to the Subordinating Loan Party as subrogee of the Secured Parties or resulting from such Subordinating Loan Partys performance under this Agreement, to the indefeasible payment in full in cash of all Secured Obligations. If the Secured Parties so request, any such obligation or indebtedness of any such other Loan Party to the Subordinating Loan Party shall be enforced and performance received by the Subordinating Loan Party as trustee for the Secured Parties and the proceeds thereof shall be paid over to the Secured Parties on account of the Secured Obligations, but without reducing or affecting in any manner the liability of the Subordinating Loan Party under this Agreement. Without limitation of the foregoing, so long as no Default has occurred and is continuing, the Loan Parties may make and receive payments with respect to intercompany Indebtedness; provided, that in the event that any Loan Party receives any payment of any intercompany Indebtedness at a time when such payment is prohibited by this Section, such payment shall be held by such Loan Party, in trust for the benefit of, and shall be paid forthwith over and delivered, upon written request, to the Administrative Agent."
"Section 11.28. Acknowledgement and Consent to BailIn of EEA Financial Institutions. 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 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:"
"(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 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 11.29. Press Releases, etc. Each Loan Party consents to the publication by Administrative Agent or any Lender of any press releases, tombstones, advertising or other promotional materials relating to the financing transactions contemplated by this Agreement using such Loan Partys name, product photographs, logo or trademark. Notwithstanding the foregoing, the Administrative Agent or such Lender shall provide a draft of any such press release, advertising or other promotional material to the Borrowers prior to the publication thereof."
"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 Priority Term Loan made or maintained by the Lender to the Borrowers pursuant to the Credit Agreement, in installments in the amounts called for by Section 2.7(a) of the Credit Agreement, commencing on June 30, 2017, together with interest on the principal amount of such Priority 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."
"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."
"This Revolving Note (this Note) is one of the Revolving Notes referred to in the First Lien Credit Agreement dated as of February 17, 2017, among the Borrowers, the Guarantors party thereto, the Lenders party thereto, and Fifth Third Bank, an Ohio banking corporation, as Administrative Agent and L/C Issuer (as amended, restated, modified or supplemented from time to time, the Credit Agreement), and this Note and the holder hereof are entitled to all the benefits and security provided for thereby or referred to therein, to which Credit Agreement reference is hereby made for a statement thereof. All defined terms used in this Note, except terms otherwise defined herein, shall have the same meaning as in the Credit Agreement."
"_________, 20__ ---|--- 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 Fifth Third Bank, an Ohio banking corporation (the Lender) or its registered assigns, on the Revolving Credit Termination Date of the hereinafter defined Credit Agreement, 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 ($____________) or, if less, the aggregate unpaid principal amount of all Swing Loans made by the Lender to the Borrowers pursuant to the Credit Agreement, together with interest on the principal amount of each Swing Loan from time to time outstanding hereunder at the rates, and payable in the manner and on the dates, specified in the Credit Agreement."
"____________, 20__ ---|--- For Value Received, the undersigned, Turning Point Brands, Inc., a Delaware corporation (Turning Point), and North Atlantic Trading Company, Inc., a Delaware corporation (NATC and together with Turning Point, the Borrowers), hereby unconditionally promise to pay to _________________________ (the Lender) or its registered assigns at the principal office of Fifth Third Bank, an Ohio banking corporation, as Administrative Agent, in Cincinnati, Ohio (or such other location as the Administrative Agent may designate to the Borrowers), in immediately available funds, the principal sum of ___________________ Dollars ($__________) or, if less, the aggregate unpaid principal amount of the Incremental Priority 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 Priority 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."
"The undersigned1, on behalf of 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 certifies to the Administrative Agent and the Lenders, each as defined in the Credit Agreement referred to below, as follows:"
"2. I have reviewed the financial statements of Turning Point and its Subsidiaries dated as of ______ __, 20__ and for the _______________ period[s] then ended and such statements are correct and complete in all material respects and fairly present in all material respects the financial condition of Turning Point and its Subsidiaries as of the dates indicated and the results of their operations and cash flows for the period[s] indicated. Pursuant to Section 6.2 of the Credit Agreement, notice is hereby given that Turning Point has posted such financial statements on Turning Points website at www.turningpointbrands.com/investor-relations/sec-filings."
"(a) Net income (or loss) of any Person (other than a Subsidiary which shall be subject to Line (2)(c) below) in which Turning Point or any of its Subsidiaries has a joint interest with a third party, except to the extent such net income is actually paid in cash by dividend or other distribution during such period"
"This 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 the parties identified on the Schedules hereto and [the] [each]1 Assignee identified on the Schedules hereto as Assignee or as Assignees (collectively, the Assignees and each, an Assignee). [It is understood and agreed that the rights and obligations of the [Assignees] [Assignors]2 hereunder are several and not joint.]3 Capitalized terms used but not defined herein shall have the meanings given to them in the First Lien Credit Agreement identified below (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the Credit Agreement), receipt of a copy of which is hereby acknowledged by [the] [each] 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."
"Section 1.2. Assignee[s]. [The] [Each] Assignee (a) represents and warrants that (i) 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 to become a Lender under the Credit Agreement, (ii) it meets the requirements of an Eligible Assignee under the Credit Agreement (subject to such consents, if any, as may be required under Section 11.11(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the] [the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the] [such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.1 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the] [such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the] [such] Assigned Interest, (vii) if it is a Foreign Lender, attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the] [such] Assignee, and (viii) it is [not] a Second Out Lender, a Second Lien Lender, an Affiliate of a Second Out Lender, an Affiliate of a Second Lien Lender, or an Approved Fund with respect to a Second Out Lender or Second Lien Lender; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent, [the] [any] Assignor 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 in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender."
"18. The Subordinated Creditor 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, against any Senior Creditor in any way relating to this Subordination Agreement or the transactions relating hereto 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 Legal Requirements, 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. The parties hereto agree that the provisions of this Subordination Agreement are unique and money damages may not provide an adequate remedy for any breach hereof, and each party may seek specific performance and other equitable remedies for any breaches under this Subordination Agreement. Notwithstanding anything to the contrary, nothing in this Subordination Agreement shall affect any right that any Senior Creditor may otherwise have to bring any action or proceeding relating to this Subordination Agreement against any Subordinated Creditor in the courts of any jurisdiction. Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent permitted by applicable Legal Requirements, 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 Subordination Agreement in any court referred to in this Section. Each of the parties 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. "
"Each Subordinated Creditor, the Administrative Agent and the other Senior Creditors hereby irrevocably waive, 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 Subordination Agreement or the transactions contemplated hereby (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 Subordination Agreement by, among other things, the mutual waivers and certifications in this Section."
"AMENDMENT NO. 14 TO THIRD AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT, dated as of March 21, 2017 (this Amendment), by and among VALEANT PHARMACEUTICALS INTERNATIONAL, INC., a corporation continued under the laws of the Province of British Columbia (the Borrower), the Guarantors party hereto and BARCLAYS BANK PLC, as Administrative Agent (in such capacity, the Administrative Agent) and on behalf of the Requisite Lenders, as Collateral Agent (in such capacity, the Collateral Agent) and as the Additional Series F-3 Tranche B Term Loan Lender (as defined below)."
"WHEREAS, the Borrower, the Administrative Agent, the Guarantors party thereto from time to time and each lender from time to time party thereto (the Lenders) have entered into a Third Amended and Restated Credit and Guaranty Agreement, dated as of February 13, 2012 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the Credit Agreement) (capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Credit Agreement);"
"WHEREAS, the Amendment No. 14 Converting Term Lenders, the Amendment No. 14 Consenting Revolving Lenders and the Amendment No. 14 Consenting Term Lenders, collectively constituting the Requisite Lenders, have authorized the Administrative Agent to enter into this Amendment on behalf of the Requisite Lenders, and the Administrative Agent has agreed to this Amendment, in its capacity as Administrative Agent and on behalf of the Requisite Lenders, on the terms and conditions set forth herein."
"1. Consent of Requisite Lenders; Lender Signature Pages. Each Lender that executes and delivers a Consenting Lender Agreement in substantially the form attached hereto as Annex I (a Consenting Lender) hereby irrevocably agrees to the terms of this Amendment with respect to all of such Consenting Lenders Loans and Commitments and authorizes the Administrative Agent to enter into this Amendment on behalf of such Consenting Lender. Such agreement and authorization shall be irrevocably binding on any subsequent transferees, participants, successors and assigns with respect to such Loans and Commitments. Each Lender further agrees that it shall not be entitled to receive a copy of any other Lenders signature page to this Amendment No. 14, but agrees that a copy of such signature page may be delivered to the Borrower and the Administrative Agent."
"(vi) Prior to or concurrently with the effectiveness of this Amendment, (i) the outstanding principal amount of each of the Tranche A Term Loans, the Series C-2 Tranche B Term Loans, the Series D-2 Tranche B Term Loans and the Series E-1 Tranche B Term Loans shall be no greater than $0 and (ii) no less than $600,000,000 of the Borrower's 6.75% Senior Notes due 2018 shall have been repurchased or selected for redemption through any combination of (x) payment for cash, (y) deposit with the trustee for such notes of funds sufficient for redemption or (z) delivery to the trustee for such notes of irrevocable notice of redemption."
"(b) the execution, delivery and performance by each Credit Party party hereto of this Amendment do not and will not (i) violate (A) any provision of any Applicable Law, (B) any of the Organizational Documents of the Borrower or any of its Subsidiaries, or (C) any order, judgment or decree of any court or other agency of government binding on the Borrower or any of its Subsidiaries, except with respect to clauses (A) and (C) to the extent that such violation could not reasonably be expected to have a Material Adverse Effect; (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any Contractual Obligation of the Borrower or any of its Subsidiaries, except to the extent that such conflict, breach or default could not reasonably be expected to have a Material Adverse Effect; (iii) result in or require the creation or imposition of any Lien upon any of the properties or assets of the Borrower or any of its Subsidiaries (other than any Liens created under any of the Credit Documents in favor of Collateral Agent, on behalf of the Secured Parties); or (iv) unless otherwise obtained, require any approval of stockholders, members or partners or any approval or consent of any Person under any Contractual Obligation of the Borrower or any of its Subsidiaries, except for any such approval or consent the failure of which to obtain could not reasonably be expected to have a Material Adverse Effect;"
"(a) It is the intention of each of the parties hereto that the Credit Agreement be amended pursuant to this Amendment, so as to preserve the validity, perfection and priority of all Liens securing the Obligations and that, after giving effect to this Amendment all Obligations (including, the Converted Term Loans and Additional Series F-3 Tranche B Term Loans) shall be secured by the Collateral and Liens granted under the Collateral Documents and that this Agreement does not constitute a novation or termination of the Credit Agreement or the other Credit Documents."
"(c) This Amendment, the Credit Agreement and the other Credit Documents constitute the entire agreement among the parties hereto with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties hereto with respect to the subject matter hereof. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of any party under, the Credit Agreement, nor alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement, all of which are ratified and affirmed in all respects and shall continue in full force and effect. It is understood and agreed that each reference in each Credit Document to the Credit Agreement, whether direct or indirect, shall hereafter be deemed to be a reference to the Credit Agreement as amended hereby and that this Amendment is a Credit Document."
"(d) Each Credit Party party hereto (and the Borrower on behalf of each other Credit Party) hereby expressly acknowledges the terms of this Amendment and affirms or reaffirms, as applicable, as of the date hereof, the covenants and agreements contained in each Credit Document to which it (or the applicable Credit Party) is a party, including, in each case, such covenants and agreements as in effect immediately after giving effect to this Amendment and the transactions contemplated hereby."
"(e) Each Credit Party party hereto (and the Borrower on behalf of each other Credit Party), by its signature below, hereby affirms and confirms, subject to the execution of the documents listed on, and the taking of actions required by, Annex II (within the time periods prescribed therein) and applicable local law requirements, the execution and/or taking of which within such time periods are hereby consented to and approved by the Requisite Lenders for all purposes under, and notwithstanding anything to the contrary in, the Credit Documents (including, for the avoidance of doubt, with respect to the effectiveness of the Collateral Documents and validity and perfection of Liens pending the execution of such documents and taking of such actions), (i) its (or the applicable Credit Partys) obligations under each of the Credit Documents to which it (or the applicable Credit Party) is a party and (ii) the pledge of and/or grant of a security interest in its (or the applicable Credit Partys) assets as Collateral to secure such Obligations, all as provided in the Collateral Documents, and each party hereto acknowledges and agrees that such guarantee, pledge and/or grant continue in full force and effect in respect of, and to secure, or upon the effectiveness of any amendment or supplement thereto entered into in connection with this Amendment, will continue in full force and effect in respect of, and will secure, such Obligations under the Credit Agreement and the other Credit Documents (including, the Converted Term Loans and Additional Series F-3 Tranche B Term Loans)."
"9. Counterparts. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed counterpart to this Amendment by facsimile transmission or other electronic transmission shall be effective as delivery of a manually signed counterpart of this Amendment."
" | VRX HOLDCO, LLC ---|---  |   |   | By: Bausch & Lomb Incorporated, one of its members  |   | By: | /s/ Linda A. LaGorga  |  | Name: | Linda A. LaGorga  |  | Title: | Senior Vice President and Treasurer "
" | VALEANT CANADA S.E.C./VALEANT CANADA LP ---|---  |   | By: Valeant Canada GP Limited, its general partner  |   |   | By: | /s/ Linda A. LaGorga  |  | Name: | Linda A. LaGorga  |  | Title: | Senior Vice President and Treasurer``````````` "
"By: Valeant sp. z.o.o., in its capacity as General Partner ---|---  |   |   | By: | /s/ Tadeusz Pietrasz  |  | Name: | Tadeusz Pietrasz  |  | Title: | Member of the Management Board of Valeant sp. z.o.o  |  |  |  "
Signed by |  |  ---|---|--- Bausch & Lomb (Australia) Pty Ltd (ACN: 000 650 251) |  |  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) 
| | Consent and Convert (Cashless Roll Option): The undersigned (each an Amendment No. 14 Converting Term Lender) hereby (x) irrevocably and unconditionally consents to the Amendment and agrees to the conversion of the full principal amount (or such lesser amount as notified to the undersigned by the Administrative Agent prior to the Amendment Effective Date) of its existing Tranche B Term Loans (other than any Series F Tranche B Term Loans) to a like principal amount of Series F-3 Tranche B Term Loan effective as of the Amendment Effective Date and (y) represents it is a Lender under the Credit Agreement. ---|---|--- 
"THIRD AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT1 dated as of February 13, 2012 among VALEANT PHARMACEUTICALS INTERNATIONAL, INC., as Borrower, CERTAIN SUBSIDIARIES OF VALEANT PHARMACEUTICALS INTERNATIONAL, INC., as Guarantors, VARIOUS LENDERS FROM TIME TO TIME PARTY HERETO, GOLDMAN SACHS LENDING PARTNERS LLC, J.P. MORGAN SECURITIES LLC and MORGAN STANLEY SENIOR FUNDING, INC., as Joint Lead Arrangers and Joint Bookrunners, JPMorgan CHASE BANK, N.A., and MORGAN STANLEY SENIOR FUNDING, INC. as Co-Syndication Agents JPMorgan CHASE BANK, N.A., as Issuing Bank BARCLAYS BANK PLC, as Administrative Agent and Collateral Agent, and RBC CAPITAL MARKETS, DNB BANK ASA, The Bank of Nova Scotia and SunTrust Bank, as Co-Documentation Agents ________________________________________________________ $ ~~15,475,000,000~~ 8,416,220,041.96 Senior Secured Credit Facilities ________________________________________________________"
"the Joinder Agreements, each dated as of January 22, 2015, the Joinder Agreements, each dated as of April 1, 2015, the Counterpart Agreement, dated as of July 24, 2015, the Counterpart Agreement, dated as of August 19, 2015, and the Counterpart Agreement, dated as of February 29, 2016. This document is provided for convenience only. In the event of any conflict between this document and the Third Amended and Restated Credit Agreement, Amendment No. 1, dated as of March 6, 2012, Amendment No. 2, dated as of September 10, 2012, Amendment No. 3, dated as of January 24, 2013, Amendment No. 4, dated as of February 21, 2013, Amendment No. 5, dated as of June 6, 2013, Amendment No. 6, dated as of June 26, 2013, Amendment No. 7, dated as of September 17, 2013, Amendment No. 8, dated as of December 20, 2013, the Successor Agent Agreement and Amendment No. 9, dated as of January 8, 2015, Amendment No. 10, dated as of March 5, 2015, Amendment No. 11, dated as of May 29, 2015, Amendment No. 12 and Waiver, dated as of April 11, 2016, Amendment No. 13, dated as of August 23, 2016, Amendment No. 14, dated as of March 21, 2017, the Joinder Agreement, dated as of June 14, 2012, the Joinder Agreement, dated as of July 9, 2012, the Joinder Agreement, dated as of September 11, 2012, the Joinder Agreement, dated as of October 2, 2012, the Joinder Agreement, dated as of December 11, 2012, the Joinder Agreements, each dated as of August 5, 2013, the Joinder Agreements, each dated as of February 6, 2014, the Joinder Agreements, each dated as of January 22, 2015, the Joinder Agreements, each dated as of April 1, 2015, the Counterpart Agreement, dated as of July 24, 2015, the Counterpart Agreement, dated as of August 19, 2015, or the Counterpart Agreement, dated as of February 29, 2016 (collectively, the Credit Agreement), except to the extent that the Credit Agreement has been further amended by the Third Amended and Restated Credit Agreement, Amendment No. 1, dated as of March 6, 2012, Amendment No. 2, dated as of September 10, 2012, Amendment No. 3, dated as of January 24, 2013, Amendment No. 4, dated as of February 21, 2013, Amendment No. 5, dated as of June 6, 2013, Amendment No. 6, dated as of June 26, 2013, Amendment No. 7, dated as of September 17, 2013, Amendment No. 8, dated as of December 20, 2013, the Successor Agent Agreement and Amendment No. 9, dated as of January 8, 2015, Amendment No. 10, dated as of March 5, 2013, Amendment No. 11, dated as of May 29, 2015, Amendment No. 12 and Waiver, dated as of April 11, 2016, Amendment No. 13, dated as of August 23, 2016, Amendment No. 14, dated as of March 21, 2017, the Joinder Agreement, dated as of June 14, 2012, the Joinder Agreement, dated as of July 9, 2012, the Joinder Agreement, dated as of September 11, 2012, the Joinder Agreement, dated as of October 2, 2012, the Joinder Agreement, dated as of December 11, 2012, the Joinder Agreements, each dated as of August 5, 2013, the Joinder Agreements, each dated as of February 6, 2014, the Joinder Agreements, each dated as of January 22, 2015, the Joinder Agreements, each dated as of April 1, 2015, the Counterpart Agreement, dated as of July 24, 2015, the Counterpart Agreement, dated as of August 19, 2015 and the Counterpart Agreement, dated as of February 29, 2016, shall control. ---|---|--- "
"6.9 | Disposal of Subsidiary Interests | ~~112~~ 114 ---|---|--- 6.10 | Sales and Leasebacks | ~~112~~ 114 6.11 | Transactions with Shareholders and Affiliates | ~~112~~ 114 6.12 | Conduct of Business | ~~113~~ 114 6.13 | Amendments or Waivers with Respect to Subordinated Indebtedness | ~~113~~ 115 6.14 | Amendments or Waivers of Organizational Documents | ~~113~~ 115 6.15 | Fiscal Year | ~~113~~ 115 6.16 | Specified Subsidiary Dispositions | ~~113~~ 115 6.17 | Biovail Insurance | ~~113~~ 115 6.18 | Establishment of Defined Benefit Plan | ~~113~~ 115 6.19 | Use of Proceeds | 115 SECTION 7. | GUARANTY | ~~113~~ 115 7.1 | Guaranty of the Obligations | ~~113~~ 115 7.2 | Contribution by Guarantors | ~~113~~ 115 7.3 | Payment by Guarantors | ~~114~~ 115 7.4 | Liability of Guarantors Absolute | ~~114~~ 116 7.5 | Waivers by Guarantors | ~~116~~ 118 7.6 | Guarantors Rights of Subrogation, Contribution, etc. | ~~116~~ 118 7.7 | Subordination of Other Obligations | ~~117~~ 119 7.8 | Continuing Guaranty | ~~117~~ 119 7.9 | Authority of Guarantors or Borrower | ~~117~~ 119 7.10 | Financial Condition of Borrower | ~~117~~ 119 7.11 | Bankruptcy, etc. | ~~117~~ 119 7.12 | Discharge of Guaranty upon Sale of Guarantor | ~~118~~ 120 7.13 | Swiss Guarantee Limitations | ~~118~~ 120 SECTION 8. | EVENTS OF DEFAULT | ~~120~~ 122 8.1 | Events of Default | ~~120~~ 122 SECTION 9. | AGENTS | ~~122~~ 124 9.1 | Appointment of Agents | ~~122~~ 124 9.2 | Powers and Duties | ~~122~~ 124 9.3 | General Immunity | ~~123~~ 125 9.4 | Agents Entitled to Act as Lender | ~~124~~ 126 9.5 | Lenders Representations, Warranties and Acknowledgment | ~~124~~ 126 9.6 | Right to Indemnity | ~~124~~ 126 9.7 | Successor Administrative Agent, Collateral Agent and Swing Line Lender | ~~125~~ 127 9.8 | Collateral Documents and Guaranty | ~~126~~ 128 9.9 | Withholding Taxes | ~~127~~ 130 9.10 | Quebec Security | ~~128~~ 130 9.11 | German Security | 130 9.12 | Belgian Security | 131 SECTION 10. | MISCELLANEOUS | ~~129~~ 131 10.1 | Notices | ~~129~~ 131 10.2 | Expenses | ~~130~~ 132 10.3 | Indemnity | ~~131~~ 133 10.4 | Set-Off | ~~131~~ 133 10.5 | Amendments and Waivers | ~~131~~ 134 10.6 | Successors and Assigns; Participations | ~~134~~ 136 "
"2010 Transactions means, collectively, (i)the redemption of VPIs 8.375% Senior Notes due 2016, issued under that certain indenture dated as of June9, 2009, among VPI, the guarantors party thereto and The Bank of New York Mellon Trust Company, Inc., as trustee, and VPIs 7.625% Senior Notes due 2020, issued under that certain indenture dated as of April9, 2010, among VPI, the guarantors party thereto and The Bank of New York Mellon Trust Company, Inc., as trustee, (ii)the repayment in full and termination of that certain credit and guaranty agreement, dated as of May26, 2010, among VPI, the guarantors party thereto, Goldman Sachs Lending Partners L.P., as sole lead arranger, and Goldman Sachs Bank USA, as administrative agent and collateral agent, (iii)the repayment in full and termination of that certain credit agreement, dated as of June9, 2009, among Borrower, the lenders party thereto and JPMorgan Chase Bank, N.A., Toronto Branch, as Administrative Agent, (iv)the payment of the Pre-Merger Special Dividend (as such term is defined in the 2010 Merger Agreement) made on September27, 2010, immediately prior to the consummation of the 2010 Merger, pro rata to VPIs shareholders on the record date of such for such dividend, (v)the consummation of the 2010 Merger, (vi)the issuance of the Senior Notes and (vii)the payment of all fees and expenses related thereto."
Additional Series F-3 Tranche B Term Loan means the Series F-3 Tranche B Term Loan issued on the Amendment No. 14 Effective Date in an amount equal to the aggregate principal amount of Tranche B Term Loans (other than Series F Tranche B Term Loans) outstanding immediately prior to the effectiveness of Amendment No. 14 minus the aggregate principal amount of the Converted Term Loans.
"(b)(x) until delivery of financial statements of the Borrower and a related Compliance Certificate for the first Fiscal Quarter ending on or after the date that is twelve months after the Amendment No. 12 Effective Date, pursuant to Section 5.1(c), with respect to Series D-2 Tranche B Term Loans that are Eurodollar Rate Loans, 4.25% per annum and (B) with respect to Series D-2 Tranche B Term Loans that are Base Rate Loans, 3.25% per annum, and (y) thereafter, the percentages per annum set forth in the table below, based upon the Secured Leverage Ratio of Borrower, as of the last day of the most recently ended Fiscal Quarter for which financial statements were required to have been delivered pursuant to Section 5.1(a) or (b):"
"Any increase or decrease in the Applicable Margin resulting from a change in the Secured Leverage Ratio or Leverage Ratio, as applicable, shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 5.1 (including, for the avoidance of doubt, the latest delivery under the Second Amended and Restated Credit Agreement); provided that Pricing Level I shall apply (x) as of the first Business Day after the date on which a Compliance Certificate was required to have been delivered but was not delivered, and shall continue to so apply to and including the date on which such Compliance Certificate is so delivered (and thereafter the Pricing Level otherwise determined in accordance with this definition shall apply) and (y) as of the first Business Day after an Event of Default shall have occurred and be continuing, and shall continue to so apply to but excluding the date on which such Event of Default is cured or waived (and thereafter the Pricing Level otherwise determined in accordance with this definition shall apply)."
"Bausch & Lomb 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 Bausch & Lomb Acquisition Agreement), dated as of May 24, 2013, among the Borrower, VPI, one of VPIs wholly owned U.S. domiciled subsidiaries and Bausch & Lomb Holdings Incorporated."
"Bausch & Lomb Escrow Issuer means a newly-formed, wholly-owned subsidiary of Borrower, which, prior to the consummation of the Bausch & Lomb Acquisition, shall have no operations, assets or activities, other than the entering into of the Bausch & Lomb New Senior Notes Documents, the issuance of the Bausch & Lomb New Senior Notes, and activities incidental thereto, including the deposit of the Bausch & Lomb Escrow Funds in the Bausch & Lomb Escrow Account."
"Bausch & Lomb Escrowed Funds means an amount, in cash or Eligible Escrow Investments, not to exceed the sum of (a) the issue price of the Bausch & Lomb New Senior Notes, plus (b) the Bausch & Lomb Additional Escrow Amount, plus (c) so long as they are retained in the Bausch & Lomb Escrow Account, any income, proceeds or products of the foregoing."
"Change of Control means, at any time, (i) any Person or group (within the meaning of Rules13d-3 and 13d-5 under the Exchange Act or Part XX of the Securities Act (Ontario)) (a) shall have acquired beneficial ownership of 35% or more on a fully diluted basis of the voting and/or economic interest in the Equity Interests of Borrower or (b) shall have obtained the power (whether or not exercised) to elect a majority of the members of the board of directors (or similar governing body) of Borrower; (ii)Borrower shall cease, directly or indirectly, to beneficially own and control 100% on a fully diluted basis of the economic and voting interest in the Equity Interests of VPI; or (iii)the majority of the seats (other than vacant seats) on the board of directors (or similar governing body) of Borrower shall cease to be occupied by Persons who either (a) were members of the board of directors (or similar governing body) of Borrower immediately following the Third"
"Restatement Date or (b) were nominated for election by the board of directors (or similar governing body) of Borrower, a majority of whom were members of the board of directors (or similar governing body) of Borrower immediately following the Third Restatement Date or whose election or nomination for election was previously approved by a majority of such members."
"Class means (i) with respect to Lenders, each of the following classes of Lenders: (a) Lenders having Tranche A Term Loan Exposure, (b) Lenders having Tranche B Term Loan Exposure, (c) Lenders (including Swing Line Lender) having Revolving Exposure and (d) Lenders having New Term Loan Exposure of each applicable Series and (ii) with respect to Loans, each of the following classes of Loans: (a) Tranche A Term Loans, (b) Tranche B Term Loans, (c) Revolving Loans (including Swing Line Loans) and (d) each additional Series of New Term Loans."
"CNI Growth Amount means, on any date of determination, (a) 50% of Cumulative Consolidated Net Income minus (b) (1) the aggregate amount at the time of determination of Restricted Junior Payments made since the Third Restatement Date using the CNI Growth Amount pursuant to Section 6.4(h) and (2) Investments made since the Third Restatement Date using the CNI Growth Amount pursuant to Section 6.6(i)."
"(i)(i) fees and expenses in connection with any proposed or actual issuance of any Indebtedness or Equity Interests, or any proposed or actual acquisitions, investments, asset sales or divestitures permitted hereunder, in an aggregate amount not to exceed (x) $150,000,000 in any twelve-month period ending on or prior to March 31, 2017 and (y) $75,000,000 in any twelve-month period ending after March 31, 2017 (in each case, other than such fees and expenses contemplated by the following clause) and (ii) (x) fees and expenses in connection with the Medicis Acquisition, (y) fees and expenses in connection with the Bausch & Lomb Acquisition and (z) fees and expenses in connection with the Sun Acquisition;"
"Eligible Escrow Investments means (x)(1) securities issued or directly and fully guaranteed or insured by the U.S. government or any agency or instrumentality thereof (provided, that the full faith and credit of the U.S. is pledged in support thereof) having repricings or maturities of not more than one year from the date of acquisition; (2) certificates of deposit and time deposits with maturities of one year or less from the date of acquisition, bankers acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any United States commercial bank having capital and surplus in excess of $500,000,000 and a Thomson Bank Watch Rating of B or better; (3) repurchase obligations with a term of not more than 14 days for underlying securities of the types described in clauses (1) and (2) above entered into and (y) money market funds that invest solely in investments of the kinds described in clauses(1) through (3)of subclause (x) above."
"Employee Benefit Plan means, in respect of any Credit Party, any employee benefit plan as defined in Section 3(3) of ERISA which is or was sponsored, maintained or contributed to by, or required to be contributed by, Borrower, any of its Subsidiaries or any of its ERISA Affiliates in each case other than any Canadian Employee Benefit Plan."
"Equity Interests means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing (excluding convertible securities to the extent constituting Indebtedness for purposes of this Agreement)."
"ERISA Affiliate means, as applied to any Person, (i) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of which that Person is a member; (ii) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Internal Revenue Code of which that Person is a member; and (iii) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any corporation described in clause (i) above or any trade or business described in clause (ii) above is a member. Any former ERISA Affiliate of Borrower or any of its Subsidiaries shall continue to be considered an ERISA Affiliate of Borrower or any such Subsidiary within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of Borrower or such Subsidiary and with respect to liabilities arising after such period for which Borrower or such Subsidiary could be liable under the Internal Revenue Code or ERISA."
"Escrow Issuer means a newly-formed, wholly-owned subsidiary of Borrower, which, prior to the consummation of the Medicis Acquisition, shall have no operations, assets or activities, other than the entering into of the New Senior Notes Documents, the issuance of the New Senior Notes, and activities incidental thereto, including the deposit of the Escrow Funds in the Escrow Account."
"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. The term Guarantee as a verb has a corresponding meaning."
"Historical Financial Statements means as of the Third Restatement Date, (i) the audited consolidated financial statements of Borrower and its Subsidiaries, for the immediately preceding three Fiscal Years ended more than 90 days prior to the Third Restatement Date, consisting of consolidated balance sheets and the related consolidated statements of income, stockholders equity and cash flows for such Fiscal Years, and (ii) the unaudited consolidated financial statements of Borrower and its Subsidiaries as of the most recent ended Fiscal Quarter after the date of the most recent audited consolidated financial statements and ended at least 45 days prior to the Third Restatement Date, consisting of a consolidated balance sheet and the related consolidated statements of income and cash flows for the three-, six- or nine-month period, as applicable, ending on such date, and, in each case, certified by the chief financial officer of Borrower that they fairly present, in all material respects, the financial condition of Borrower and its Subsidiaries, respectively, as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year end adjustments and the absence of footnotes in the case of the unaudited consolidated financial statements."
"Lender Counterparty means, at any time, each Person that is a counterparty to a Hedge Agreement or Cash Management Agreement, provided that such Person is a Lender, an Agent, or an Affiliate of a Lender or Agent at such time or was a Lender, an Agent or an Affiliate of a Lender or Agent, at the time such Hedge Agreement or Cash Management Agreement was entered into or, in the case of any such Hedge Agreement or Cash Management Agreement in effect as of the Third Restatement Date, Second Restatement Date, First Restatement Date, Original Closing Date or any time prior thereto, is a Lender, an Agent or an Affiliate of a Lender or an Agent as of the Third Restatement Date, Second Restatement Date, First Restatement Date or Original Closing Date."
"Narrative Report means, with respect to the financial statements for which such narrative report is required, a narrative report describing the operations of Borrower and its Subsidiaries that complies with the applicable requirements under the Exchange Act for a Management Discussion and Analysis for the applicable Fiscal Quarter or Fiscal Year and for the period from the beginning of the then current Fiscal Year to the end of such period to which such financial statements relate."
"Not Otherwise Applied means, with reference to any amount of any transaction or event, that such amount (i) was not required to be applied to prepay the Loans pursuant to Section 2.14, and (ii) was not previously applied in determining the permissibility of a transaction under the Credit Documents where such permissibility was (or may have been) contingent on the receipt or availability of such amount."
"Orthodermatologics Acquisition means the acquisition of certain assets and rights, and assumption of certain liabilities, relating to the Ortho Dermatologics Division of Janssen Pharmaceuticals, Inc., a Subsidiary of Johnson & Johnson, by certain wholly-owned Subsidiaries of Borrower, pursuant to that certain asset purchase agreement, dated as of July 15, 2011, by and among Janssen Pharmaceuticals, Inc., Valeant Pharmaceuticals North America LLC, Valeant International (Barbados) SRL and, solely for the purposes set forth therein, Valeant Pharmaceuticals International, Inc., including all schedules, annexes and exhibits attached thereto and all material documents related to the consummation of the transactions contemplated thereby, as amended, modified and supplemented."
"Permitted Secured Notes means debt securities of any Credit Party that are secured by a Lien ranking pari passu with or junior to the Liens securing the Obligations; provided that (a) the terms of such debt securities do not provide for any scheduled repayment, mandatory redemption or sinking fund obligations prior to the latest Term Loan Maturity Date (other than (x) customary offers to repurchase upon a change of control, asset sale or event of loss and customary acceleration rights after an event of default and (y) any such debt securities issued after the Amendment No. 13 Effective Date, so long as (i) such debt securities do not provide for any scheduled repayment, mandatory redemption or sinking fund prior to the date that is five years after the issuance thereof (subject to the foregoing clause (x)) and (ii) the net proceeds thereof to the Borrower are applied substantially simultaneously with the issuance of such debt securities to prepay Term Loans (with such prepayment to be applied as specified by the Borrower and otherwise in accordance with Section 2.15(a)), (b) 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 more restrictive to Borrower or any of its Subsidiaries than those in this Agreement, as determined by the Borrower in good faith, (c) Borrower will cause the collateral agent or representatives for the holders of Permitted Secured Notes to enter into an intercreditor agreement with Collateral Agent in form and substance usual and customary for transactions of this type and otherwise satisfactory to Collateral Agent in its sole discretion, (d) at the time that any such Permitted Secured Notes are issued (and after giving effect thereto) no Default or Event of Default shall exist, be continuing or result therefrom, (e) either (i) on a Pro Forma Basis after giving effect to the incurrence of such Permitted Secured Notes (and the use of proceeds thereof), ~~Borrower shall be in compliance with the covenants set forth in Section 6.7~~ the Secured Leverage Ratio shall not exceed 3.00 to 1.0 as of the last day of the most recently ended Fiscal Quarter for which financial statements were required to have been delivered pursuant to Section 5.1(a) or (b), as applicable, in each case, as if such Permitted Secured Notes had been outstanding on the last day of such Fiscal Quarter, or (ii) the Cash proceeds of such Permitted Secured Notes are applied to prepay Term Loans in accordance with Section 2.15, and (f) no Subsidiary of Borrower (other than a Guarantor) shall be an obligor and no Permitted Secured Notes shall be secured by any collateral other than the Collateral. For the avoidance of doubt, the 2017 Permitted Secured Notes shall be treated as Permitted Secured Notes for all purposes under this Agreement."
"Prime Rate means the rate of interest quoted in the print edition of The Wall Street Journal, Money Rates Section as the Prime Rate (currently defined as the base rate on corporate loans posted by at least 75% of the nations thirty (30) largest banks), as in effect from time to time. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. Any Agent or any other Lender may otherwise make commercial loans or other loans at rates of interest at, above or below the Prime Rate."
"Sanctioned Person means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the European Union, Her Majestys Treasury of the United Kingdom or the United Nations Security Council, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b)."
"Securities means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as securities or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing."
"Tranche B Term Loan means a Tranche B Term Loan made by a Lender to Borrower pursuant to Section 2.1(a), a Series A Tranche B Term Loan made pursuant to the Series A Tranche B Term Loan Joinder Agreement (except as expressly set forth herein, including for purposes of Section 2.13(a)), a Series B Tranche B Term Loan made pursuant to the Series B Tranche B Term Loan Joinder Agreement (except as expressly set forth"
"thereof on the operation of such provision (or if the Administrative Agent notifies Borrower that the Requisite Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. Financial statements and other information required to be delivered by Borrower to Lenders pursuant to Sections5.1(a) and 5.1(b) shall be prepared in accordance with GAAP as in effect at the time of such preparation (and delivered together with the reconciliation statements provided for in Section 5.1(d), if applicable)."
"1.7Medicis Transactions. Notwithstanding anything to the contrary in any Credit Document, nothing contained in any Credit Document shall prevent (a) the granting or existence of any Liens on the Escrow Account, the Escrowed Funds or any New Senior Notes Documents or pursuant to any New Senior Notes Escrow Documents, in each case, in favor of the Escrow Agent or the trustee under the New Senior Notes Indenture (or their designees), (b) the making of any Restricted Junior Payment in connection with the consummation of the Medicis Acquisition and the other Medicis Transactions, (c) the holding of the Escrowed Funds in the Escrow Account or (d) any other transaction contemplated by the New Senior Notes Documents (it being understood, for the avoidance of doubt, that any such granting of Liens, making of Restricted Junior Payments and other transactions shall be deemed made exclusively in reliance upon this Section 1.7 and not any other exception or basket under any other provision of any Credit Document). In addition, prior to the consummation of the Medicis Acquisition, Escrow Issuer shall not be deemed a Subsidiary for purposes of this Agreement or any other Credit Document, and, for the avoidance of doubt, shall not be subject to the (i) requirements of Section 5 (including, for the avoidance of doubt, Section 5.10) or Section 6 hereof, (ii) representations and warranties in Section 4 hereof or (iii) Events of Default in Section 8 hereof. The Lenders, the Issuing Bank and their respective Affiliates hereby agree that none of the Administrative Agent, the Collateral Agent or any Affiliate thereof shall have any liability or obligation to the Lenders, in their capacities as such, with respect to any transactions contemplated by the New Senior Notes Documents."
"1.8Bausch & Lomb Transactions; Sun Transactions. Notwithstanding anything to the contrary in any Credit Document, nothing contained in any Credit Document shall prevent (a) the granting or existence of any Liens on the Bausch & Lomb Escrow Account, the Bausch & Lomb Escrowed Funds or any Bausch & Lomb New Senior Notes Documents or pursuant to any Bausch & Lomb New Senior Notes Escrow Documents, in each case, in favor of the Bausch & Lomb Escrow Agent or the trustee under the Bausch & Lomb New Senior Notes Indenture (or their designees), (b) the making of any Restricted Junior Payment in connection with the consummation of the Bausch & Lomb Acquisition and the other Bausch & Lomb Transactions, (c) the holding of the Bausch & Lomb Escrowed Funds in the Bausch & Lomb Escrow Account or (d) any other transaction contemplated by the Bausch &"
"Lomb New Senior Notes Documents (it being understood, for the avoidance of doubt, that any such granting of Liens, making of Restricted Junior Payments and other transactions shall be deemed made exclusively in reliance upon this Section 1.8 and not any other exception or basket under any other provision of any Credit Document). In addition, prior to the consummation of the Bausch & Lomb Acquisition, Bausch & Lomb Escrow Issuer shall not be deemed a Subsidiary for purposes of this Agreement or any other Credit Document, and, for the avoidance of doubt, shall not be subject to the (i) requirements of Section 5 (including, for the avoidance of doubt, Section 5.10) or Section 6 hereof, (ii) representations and warranties in Section 4 hereof or (iii) Events of Default in Section 8 hereof. The Lenders, the Issuing Bank and their respective Affiliates hereby agree that none of the Administrative Agent, the Collateral Agent or any Affiliate thereof shall have any liability or obligation to the Lenders, in their capacities as such, with respect to any transactions contemplated by the Bausch & Lomb New Senior Notes Documents. Notwithstanding anything to the contrary in any Credit Document, nothing contained in any Credit Document shall prevent the Sun Transactions."
"1.9Acquisition Escrow Debt Transactions. Notwithstanding anything to the contrary in any Credit Document, nothing contained in any Credit Document shall prevent (a) the incurrence of Acquisition Escrow Debt, (b) the granting or existence of any Liens on any Acquisition Debt Escrow Account, any Acquisition Debt Escrowed Funds or any Acquisition Debt Escrow Debt Documents, in each case, in favor of any Acquisition Debt Escrow Agent or the agent or trustee under any Acquisition Debt Escrow Debt Documents (or any designee thereof), (c) the holding of any Acquisition Debt Escrowed Funds in an Acquisition Debt Escrow Account or (d) any other transaction contemplated by any Acquisition Debt Escrow Debt Document (it being understood, for the avoidance of doubt, that any such incurrence of Acquisition Escrow Debt, granting of Liensand other transactions shall, prior to the consummation of the applicable Escrow Acquisition be deemed made exclusively in reliance upon this Section 1.8 and not any other exception or basket under any other provision of any Credit Document). In addition, prior to the consummation of the applicable Escrow Acquisition, the applicable Acquisition Debt Escrow Issuer shall not be deemed a Subsidiary for purposes of this Agreement or any other Credit Document, and, for the avoidance of doubt, shall not be subject to the (i) requirements of Section 5 (including, for the avoidance of doubt, Section 5.10) or Section 6 hereof, (ii) representations and warranties in Section 4 hereof or (iii) Events of Default in Section 8 hereof. It is understood, for the avoidance of doubt, that from and after the date of the consummation of the applicable Escrow Acquisition, any Indebtedness incurred to finance such Permitted Acquisition, the granting or existing of any Liens in connection with such Indebtedness (or otherwise) or any other transaction in connection with such Permitted Acquisition shall be subject to the applicable (i) covenants in Section 5 and Section 6 hereof, and (ii) Events of Default in Section 8 hereof. The Lenders, the Issuing Bank and their respective Affiliates hereby agree that none of the Administrative Agent, the Collateral Agent or any Affiliate thereof shall have any liability or obligation to the Lenders, in their capacities as such, with respect to any transactions contemplated by any Acquisition Debt Escrow Debt Documents."
"Any amount borrowed under this Section2.1(a) and subsequently repaid or prepaid may not be reborrowed. Subject to Sections 2.13(a) and 2.14, all amounts owed hereunder with respect to the Tranche A Term Loans and the Tranche B Term Loans shall be paid in full no later than the Tranche A Term Loan Maturity Date and the Tranche B Term Loan Maturity Date, respectively. Each Lenders Tranche B Term Loan Commitment shall terminate immediately and without further action on the Third Restatement Date after giving effect to the funding of such Lenders Tranche B Term Loan Commitment on such date."
"Upon satisfaction or waiver of the conditions precedent specified herein, Administrative Agent shall make the proceeds of the Tranche B Term Loans available to Borrower on the Third Restatement Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Loans received by Administrative Agent from Lenders to be credited to the account of Borrower, at the Principal Office designated by Administrative Agent or to such other account as may be designated in writing to Administrative Agent by Borrower."
"(a)Letters of Credit. During the Revolving Commitment Period, subject to the terms and conditions hereof, Issuing Bank agrees to issue Letters of Credit for the account of Borrower; provided, (i) the stated amount of each Letter of Credit shall not be less than $100,000 (or the Equivalent Amount thereof in any alternative currency) or such lesser amount as is acceptable to Issuing Bank; (ii) after giving effect to such issuance, in no event shall the Total Utilization of Revolving Commitments exceed the Revolving Commitments then in effect; (iii) after giving effect to such issuance, in no event shall the Letter of Credit Usage exceed the Letter of Credit Sublimit then in effect; (iv) in no event shall any standby Letter of Credit have an expiration date later than the earlier of (1) the Revolving Commitment Termination Date and (2) the date which is 30 months from the date of issuance of such standby Letter of Credit; (v) in no event shall any Letter of Credit have an expiration date later than the earlier of (1)"
"the Revolving Commitment Termination Date and (2) the date which is 30 months from the date of issuance of such commercial Letter of Credit; and (vi) Issuing Bank shall be under no obligation to issue any Letter of Credit if the issuance of such Letter of Credit would violate one or more policies of Issuing Bank applicable to letters of credit generally and not solely to letters of credit issuable to Borrower. Subject to the foregoing, Issuing Bank may agree that a standby Letter of Credit will automatically be extended for one or more successive periods not to exceed one year each, unless Issuing Bank elects not to extend for any such additional period, and so notifies the beneficiary thereof 30 days in advance that such standby Letter of Credit will not be so extended; provided that Issuing Bank shall not extend any such Letter of Credit if it has received written notice that an Event of Default has occurred and is continuing at the time Issuing Bank must elect to allow such extension; provided, further, that if any Lender is a Defaulting Lender, Issuing Bank shall not be required to issue any Letter of Credit unless Issuing Bank has entered into arrangements reasonably satisfactory to it and Borrower to eliminate Issuing Banks risk with respect to the participation in Letters of Credit of the Defaulting Lender, including by cash collateralizing such Defaulting Lenders Pro Rata Share of the Letter of Credit Usage."
"(b)Notice of Issuance. Subject to Section 3.3(b), whenever Borrower desires the issuance, amendment or modification of a Letter of Credit, it shall deliver to Administrative Agent an Issuance Notice no later than 12:00p.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 Issuing Bank in any particular instance, in advance of the proposed date of issuance, amendment or modification. Upon satisfaction or waiver of the conditions set forth in Section 3.3, Issuing Bank shall issue, amend or modify the requested Letter of Credit only in accordance with Issuing Banks standard operating procedures. Upon the issuance of any Letter of Credit or amendment or modification to a Letter of Credit, Issuing Bank shall promptly 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 2.4(e)."
"(h)Resignation and Removal of Issuing Bank. An Issuing Bank may resign as Issuing Bank upon 60 days prior written notice to Administrative Agent, Lenders and Borrower. An Issuing Bank may be replaced at any time by written agreement among Borrower, Administrative Agent, the replaced Issuing Bank (provided that no consent will be required if the replaced Issuing Bank has no Letters of Credit or reimbursement Obligations with respect thereto outstanding) and the successor Issuing Bank. Administrative Agent shall notify the Lenders of any such replacement of the Issuing Bank. At the time any such replacement or resignation shall become effective, Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank. From and after the effective date of any such replacement or resignation, (i) any successor Issuing Bank shall have all the rights and obligations of an 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 or resignation of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto to the extent that Letters of Credit issued by it remain outstanding and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement or resignation, but shall not be required to issue additional Letters of Credit."
"(i)the proceeds of the Revolving Loans, Swing Line Loans and Letters of Credit made after the Third Restatement Date shall be applied by Borrower, as applicable, to (A) finance a portion of any Acquisition and pay related fees and expenses, (B) fund permitted capital expenditures and permitted acquisitions, (C) provide for the ongoing working capital requirements of Borrower and its Subsidiaries and (D) provide for general corporate purposes of Borrower and its Subsidiaries; and"
"(d)Interest payable pursuant to Section 2.8(a) shall be computed (i) in the case of Base Rate Loans (other than Base Rate Loans for which the Base Rate has been calculated pursuant to the third sentence of the definition thereof), on the basis of a 365 day or 366 day year, as the case may be, and (ii) in the case of Eurodollar Rate Loans and Base Rate Loans for which the Base Rate has been calculated pursuant to the third sentence of the definition thereof, on the basis of a 360 day year, in each case for the actual number of days elapsed in the period during which it accrues. In computing interest on any Loan, the date of the making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect to a Term Loan, the last Interest Payment Date with respect to such Term Loan or, with respect to a Base Rate Loan being converted from a Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate Loan to such Base Rate Loan shall be included, and the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted to a Eurodollar Rate Loan, the date of conversion of such Base Rate Loan to such Eurodollar Rate Loan shall be excluded; provided that, if a Loan is repaid on the same day on which it is made, one days interest shall be paid on that Loan."
(ii)letter of credit fees accruing at the Applicable Margin for Revolving Loans that are Eurodollar Rate Loans on the average aggregate daily maximum amount available to be drawn under all such Letters of Credit (regardless of whether any conditions for drawing could then be met and determined as of the close of business on any date of determination).
"amount of such Lenders Tranche B Term Loans set forth in Schedule 2.11(c) payable to such Lender from the proceeds of its Tranche B Term Loan as and when funded on the Third Restatement Date. Such closing fee will be in all respects fully earned, due and payable on the Third Restatement Date and non- refundable and non-creditable thereafter."
"(l)Borrower agrees to pay: (i) on the Additional Series A-3 Tranche A Term Loan Funding Date to the Administrative Agent, for the account of each New Term Loan Lender party to the Additional Series A-3 Tranche A Term Loan Joinder Agreement, as fee compensation for such New Term Loan Lenders Additional Series A-3 Tranche A Term Loan Commitments (as defined in the Additional Series A-3 Tranche A Term Loan Joinder Agreement), a closing fee in an amount equal to 0.25% of the aggregate principal amount of such New Term Loan Lenders allocated Additional Series A-3 Tranche A Term Loan Commitments which are actually funded on the Additional Series A-3 Tranche A Term Loan Funding Date and (ii) on the Series E-1 Tranche B Term Loan Funding Date to the Administrative Agent, for the account of each New Term Loan Lender party to the Series E-1 Tranche B Term Loan Joinder Agreement, a nonrefundable ticking fee on the aggregate principal amount of such New Term Loan Lenders Series E-1 Tranche B Term Loan Commitment (as defined in the Series E-1 Tranche B Term Loan Joinder Agreement) as of Series E-1 Tranche B Term Loan Funding Date, for the period from January 1, 2014, to but excluding the Series E-1 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 3.00%."
"A-4 Tranche A Term Loans funded on such date) and (b) the Series A-4 Tranche A Term Loan Commitment Termination Date (as defined in the Series A-4 Tranche A Term Loan Joinder Agreement) (with respect to the unfunded portion of the Series A-4 Tranche A Term Loan Commitments (as defined in the Series A-4 Tranche A Term Loan Joinder Agreement) remaining on such date), to the Administrative Agent, for the account of each New Term Loan Lender party to the Series A-4 Tranche A Term Loan Joinder Agreement, a nonrefundable commitment fee on the actual daily unfunded portion of such New Term Loan Lenders Series A-4 Tranche A Term Loan Commitments as of the date of the Series A-4 Tranche A Term Loan Joinder Agreement, for the period from the date of the Series A-4 Tranche A Term Loan Joinder Agreement, to the earlier of (x) the final Series A-4 Tranche A Term Loan Funding Date and (y) the Series A-4 Tranche A Term Loan Commitment Termination 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 0.25% (increasing to 0.50% on the date that is 60 days after the date of the Series A-4 Tranche A Term Loan Joinder Agreement)."
"(o)Borrower agrees to pay: (i) on the Series F-1 Tranche B Term Loan Funding Date to the Administrative Agent, for the account of each New Term Loan Lender party to the Series F Tranche B Term Loan Joinder Agreement with a Series F-1 Tranche B Term Loan Commitment (as defined in the Series F Tranche B Term Loan Joinder Agreement), (1) as fee compensation for the funding of such New Term Loan Lenders Series F-1 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 F-1 Tranche B Term Loans funded as of the Series F-1 Tranche B Term Loan Funding Date and (2) a nonrefundable ticking fee on the aggregate principal amount of such New Term Loan Lenders Series F-1 Tranche B Term Loan Commitments for the period beginning on the date that is 30 days after the first date the Series F-1 Tranche B Term Loans have been allocated, and expiring on the earlier of (x) the Series F-1 Tranche B Term Loan Funding Date and (y) the Series F-1 Term Loan Commitment Termination Date (as defined in the Series F Tranche B Term Loan Joinder Agreement), 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 4.00%; and (ii) (1) on the applicable Series F-2 Tranche B Term Loan Funding Date to the Administrative Agent, for the account of each New Term Loan Lender party to the Series F Tranche B Term Loan Joinder Agreement with a Series F-2 Tranche B Term Loan Commitment (as defined in the Series F Tranche B Term Loan Joinder Agreement), as fee compensation for the funding of such New Term Loan Lenders Series F-2 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 F-2 Tranche B Term Loans funded on such Series F-2 Tranche B Term Loan Funding Date and (2) on the earliest to occur of (a) the applicable Series F-2 Tranche B Term Loan Funding Date (with respect to the Series F-2 Tranche B Term Loans funded on such date) and (b) the Series F-2 Tranche B Term Loan Commitment Termination Date (as defined in the Series F-2 Tranche B Term Loan Joinder Agreement) (with respect to the unfunded portion of the Series F-2 Tranche B Term Loan Commitments remaining on such date), to the Administrative Agent, for the account of each New Term Loan Lender party to the Series F-2 Tranche B Term Loan Joinder Agreement with a Series F-2 Tranche B Term Loan Commitment, a nonrefundable ticking fee on the aggregate principal amount of such New Term Loan Lenders Series F-2 Tranche B Term Loan Commitments for the period beginning on the date that is 30 days after the first date the Series F-2 Tranche B Term Loans have been allocated, and expiring on the earlier of (x) the final Series F-2 Tranche B Term Loan Funding Date and (y) the Series F-2 Term Loan Commitment Termination Date (as defined in the Series F Tranche B Term Loan Joinder Agreement), 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 4.00%."
" Amortization Date | ~~Series A-1~~ ~~Tranche A~~ ~~Term Loan~~ ~~Installments~~ | ~~Series A-2~~ ~~Tranche A~~ ~~Term Loan~~ ~~Installments~~ | ~~Series A-3~~ ~~Tranche A~~ ~~Term Loan~~ ~~Installments~~ | ~~Series A-4 Tranche A Term Loan Installments~~ | ~~Series C-2~~ ~~Tranche B~~ ~~Term Loan~~ ~~Installments~~ | ~~Series D-2~~ ~~Tranche B~~ ~~Term Loan~~ ~~Installments~~ | ~~Series E-1~~ ~~Tranche B~~ ~~Term Loan~~ ~~Installments~~ | Series F TrancheB Term Loan (including, from and after the Amendment No. 14 Effective Date, Series F-3 Tranche B Term Loans) ~~Term Loan~~ Installments ---|---|---|---|---|---|---|---|--- June 30, 2018 | ~~\--~~ |  | ~~5.42%~~ | ~~5.00%~~ | ~~0.25%~~ | ~~0.25%~~ | ~~0.25%~~ | ~~0.25~~ 1.25% September 30, 2018 | ~~\--~~ |  | ~~5.42%~~ | ~~5.00%~~ | ~~0.25%~~ | ~~0.25%~~ | ~~0.25%~~ | ~~0.25~~ 1.25% ~~Series A-3 Tranche A Term Loan Maturity Date~~ | ~~\--~~ |  | ~~Remaining~~ ~~Balance~~ | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~\--~~ December 31, 2018 | ~~\--~~ |  | ~~\--~~ | ~~5.00%~~ | ~~0.25%~~ | ~~0.25%~~ | ~~0.25%~~ | ~~0.25~~ 1.25% ~~Tranche B Term Loan Maturity Date~~ | ~~\--~~ |  | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~Remaining~~ ~~Balance~~ | ~~\--~~ | ~~\--~~ March 31, 2019 | ~~\--~~ |  | ~~\--~~ | ~~5.00%~~ | ~~0.25%~~ | ~~\--~~ | ~~0.25%~~ | ~~0.25~~ 1.25% June 30, 2019 | ~~\--~~ |  | ~~\--~~ | ~~5.00%~~ | ~~0.25%~~ | ~~\--~~ | ~~0.25%~~ | ~~0.25~~ 1.25% September 30, 2019 | ~~\--~~ |  | ~~\--~~ | ~~5.00%~~ | ~~0.25%~~ | ~~\--~~ | ~~0.25%~~ | ~~0.25~~ 1.25% ~~Series C Tranche B Term Loan Maturity Date~~ | ~~\--~~ |  | ~~\--~~ | ~~\--~~ | ~~Remaining~~ ~~Balance~~ | ~~\--~~ | ~~\--~~ | ~~\--~~ December 31, 2019 | ~~\--~~ |  | ~~\--~~ | ~~5.00%~~ | ~~\--~~ | ~~\--~~ | ~~0.25%~~ | ~~0.25~~ 1.25% March 31, 2020 | ~~\--~~ |  | ~~\--~~ | ~~5.00%~~ | ~~\--~~ | ~~\--~~ | ~~0.25%~~ | ~~0.25~~ 1.25% ~~Series A-4 Tranche A Term Loan Maturity Date~~ |  |  |  | ~~Remaining~~ ~~Balance~~ |  |  |  | ~~\--~~ June 30, 2020 | ~~\--~~ |  | ~~\--~~ |  | ~~\--~~ | ~~\--~~ | ~~0.25%~~ | ~~0.25~~ 1.25% ~~Series E-1 Tranche B Term Loan Maturity Date~~ | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~Remaining~~ ~~Balance~~ | ~~\--~~ September 30, 2020 | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~0.25~~ 1.25% December 31, 2020 | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~0.25~~ 1.25% March 31, 2021 | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~0.25~~ 1.25% June 30, 2021 | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~\--~~ | ~~0.25~~ 1.25% "
"Notwithstanding Section 2.13(a) above, in the event that on or prior to the six month anniversary of the Series E Tranche B Term Loan Funding Date, the Borrower (x) makes any prepayment of the Series E 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 E 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 E 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-2 Tranche B Term Loan Funding Date, the Borrower (x) makes any prepayment of the Series C-2 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-2 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-2 Tranche B Term Loans outstanding immediately prior to such amendment."
"Notwithstanding Section 2.13(a) above, in the event that from the Amendment No. 11 Effective Date to the date that is on or prior to the six month anniversary of the Amendment No. 11 Effective Date, the Borrower (x) makes any prepayment of the Series D-2 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 D-2 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 D-2 Tranche B Term Loans outstanding immediately prior to such amendment."
"(i) Borrower may, upon not less than three Business Days prior written or telephonic notice promptly confirmed by delivery of written notice thereof to Administrative Agent (which original written or telephonic notice Administrative Agent will promptly transmit by telefacsimile or telephone to each applicable Lender), at any time and from time to time terminate in whole or permanently reduce in part, without premium or penalty, the Revolving Commitments in an amount up to the amount by which the Revolving Commitments exceed the Total Utilization of Revolving Commitments at the time of such proposed termination or reduction; provided that any such partial reduction of the Revolving Commitments shall be in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of that amount."
"(ii) Borrowers notice to Administrative Agent shall designate the date (which shall be a Business Day) of such termination or reduction and the amount of any partial reduction, and such termination or reduction of the Revolving Commitments shall be effective on the date specified in Borrowers notice and shall reduce the Revolving Commitment of each Lender proportionately to its Pro Rata Share thereof; provided that a notice of termination or partial reduction may state that such notice is conditional upon the effectiveness of other credit"
"(c)Issuance of Equity Securities. No later than ~~three~~ seven Business Days following the date of receipt by Borrower or any of its Subsidiaries of any Cash proceeds from a capital contribution to, or the issuance of any Equity Interests of, Borrower or any of its Subsidiaries (other than (i) pursuant to any employee stock or stock option compensation plan or any employment agreement, (ii) the receipt of a capital contribution from, or the issuance of Equity Interests to, Borrower or any of its Subsidiaries, (iii) the issuance of directors qualifying shares or of other nominal amounts of other Equity Interests that are required to be held by specified Persons under Applicable Law and (iv) in connection with a Permitted Majority Investment), Borrower shall prepay the Loans as set forth in Section 2.15(b) in an aggregate amount equal to 50% of such proceeds, in each case, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, including reasonable legal fees and expenses; provided that if, as of the end of the most recent four consecutive Fiscal Quarter period (determined for any such period by reference to the Compliance Certificate delivered pursuant to Section 5.1(c) calculating the Leverage Ratio as of the last day of such four consecutive Fiscal Quarter period), the Leverage Ratio determined on a Pro Forma Basis shall be 3.25:1.00 or less, Borrower shall only be required to make prepayments otherwise required hereby in an amount equal to 25% of such proceeds."
"(g)Prepayment Certificate. Concurrently with any prepayment of the Loans pursuant to Sections 2.14(a) through 2.14(e), Borrower shall deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the calculation of the amount of the applicable net proceeds or Consolidated Excess Cash Flow, as the case may be. In the event that Borrower shall subsequently determine that the actual amount received exceeded the amount set forth in such certificate, Borrower shall promptly make an additional prepayment of the Loans in an amount equal to such excess, and Borrower shall concurrently therewith deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the derivation of such excess."
"(a)All payments by Borrower of principal, interest, fees and other Obligations shall be made in Dollars in same day funds, without defense, recoupment, set-off or counterclaim, free of any restriction or condition, and delivered to Administrative Agent not later than (x) 12:00p.m. (New York City time) on the date due at the Principal Office designated by Administrative Agent for the account of Lenders; for purposes of computing interest and fees, funds received by Administrative Agent after that time on such due date shall be deemed to have been paid by Borrower on the next succeeding Business Day."
"2.17Ratable Sharing. Lenders hereby agree among themselves that, except as otherwise provided in the Collateral Documents with respect to amounts realized from the exercise of rights with respect to Liens on the Collateral, if any of them shall, whether by voluntary payment (other than a voluntary prepayment of Loans made and applied in accordance with the terms hereof), through the exercise of any right of set-off, consolidation or bankers lien, by counterclaim or cross action or by the enforcement of any right under the Credit Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under any Insolvency Laws, receive payment or reduction of a proportion of the aggregate amount of principal, interest, amounts payable in respect of Letters of Credit, fees and other amounts then due and owing to such Lender hereunder or under the other Credit Documents (collectively, the Aggregate Amounts Due to such Lender) which is greater than the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall (a) notify Administrative Agent and each other Lender of the receipt of such payment and (b) apply a portion of such payment to purchase participations (which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of such payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided that, if all or part of such proportionately greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of Borrower or otherwise, those purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest. Borrower expressly consents to the foregoing arrangement and agrees that any holder of a participation so purchased may exercise any and all rights of bankers lien, consolidation, set-off or counterclaim with respect to any and all monies owing by Borrower to that holder with respect thereto as fully as if that holder were owed the amount of the participation held by that holder. The provisions of this Section 2.17 shall not be construed to apply to (a) any payment made by Borrower pursuant to and in accordance with the express terms of this Agreement or (b) any payment obtained by any Lender as consideration for the assignment or sale of a participation in any of its Loans or other Obligations owed to it in accordance herewith."
"(a)Inability to Determine Applicable Interest Rate. In the event that Administrative Agent shall have determined (which determination shall be final and conclusive and binding upon all parties hereto absent manifest error), on any Interest Rate Determination Date with respect to any Eurodollar Rate Loans, that by reason of circumstances affecting the London interbank market, adequate and fair means do not exist for ascertaining the interest rate applicable to such Loans on the basis provided for in the definition of Adjusted 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, Administrative Agent shall on such date give notice (by email or by telephone confirmed in writing) to Borrower and each Lender of such determination, whereupon (i) no Loans may be made as, or converted to, Eurodollar Rate Loans until such time as Administrative Agent notifies Borrower and Lenders that the circumstances giving rise to such notice no longer exist, and (ii) any Funding Notice or Conversion/Continuation Notice given by Borrower with respect to the Loans in respect of which such determination was made shall be deemed to be rescinded by Borrower."
"(b)Illegality or Impracticability of Eurodollar Rate Loans. In the event that on any date any Lender shall have determined (which determination shall be final and conclusive and binding upon all parties hereto absent manifest error) that the making, maintaining or continuation of its Eurodollar Rate Loans (i) has become unlawful as a result of compliance by such Lender in good faith with any law, treaty, governmental rule, regulation, guideline or order (or would conflict with any such treaty, governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful), or (ii) has become impracticable, as a result of contingencies occurring after the date hereof which materially and adversely affect the London interbank market or the position of such Lender in that market, then, and in any such event, such Lender shall be an Affected Lender and it shall on that day give notice (by email or by telephone confirmed in writing) to Borrower and Administrative Agent of such determination (which notice Administrative Agent shall promptly transmit to each other Lender). If the Administrative Agent receives a notice from (x) any Lender pursuant to clause(i) of the preceding sentence or (y) a notice from Lenders constituting Requisite Lenders pursuant to clause(ii) of the preceding sentence, then (1) the obligation of the Lenders (or, in the case of any notice pursuant to clause (i) of the preceding sentence, such Lender) to make Loans as, or to convert Loans to, Eurodollar Rate Loans shall be suspended until such notice shall be withdrawn by each Affected Lender, (2) to the extent such determination by the Affected Lender relates to a Eurodollar Rate Loan then being requested by Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, Lenders (or in the case of any notice pursuant to clause (i) of the preceding sentence, such Lender) shall make such Loan as (or continue such Loan as or convert such Loan to, as the case may be) a Base Rate Loan, (3) the Lenders (or in the case of any notice pursuant to clause (i) of the preceding sentence, such Lenders) obligations to maintain their respective outstanding Eurodollar Rate Loans (the Affected Loans), shall be terminated at the earlier to occur of the expiration of the Interest Period then in effect with respect to the Affected Loans or when required by law, and (4) the Affected Loans shall automatically convert into Base Rate Loans on the date of such termination. Notwithstanding anything herein to the contrary, to the extent a determination by an Affected Lender as described above relates to a Eurodollar Rate Loan then being requested by Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, Borrower shall have the option, subject to the provisions of Section2.18(c), to rescind such Funding Notice or Conversion/Continuation Notice as to all Lenders by giving written or telephonic notice (promptly confirmed by delivery of written notice thereof) to Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as described above (which notice of rescission Administrative Agent shall promptly transmit to each other Lender)."
"2.23Removal or Replacement of a Lender. Anything contained herein to the contrary notwithstanding, in the event that: (a) (i) any Lender (an Increased Cost Lender) shall give notice to Borrower that such Lender is an Affected Lender or that such Lender is entitled to receive payments under Section 2.18, 2.19 or 2.20, (ii) the circumstances which have caused such Lender to be an Affected Lender or which entitle such Lender to receive such payments shall remain in effect, and (iii) such Lender shall fail to withdraw such notice within five Business Days after Borrowers request for such withdrawal; or (b) (i) any Lender shall become a Defaulting Lender, (ii) the Default Period for such Defaulting Lender shall remain in effect, and (iii) such Defaulting Lender shall fail to cure the default as a result of which it has become a Defaulting Lender within five Business Days after Borrowers request that it cure such default; or (c) in connection with any proposed amendment, modification, termination, waiver or consent with respect to any of the provisions hereof as contemplated by Section 10.5(b), the consent of Requisite Lenders shall have been obtained but the consent of one or more of such other Lenders (each a Non-Consenting Lender) whose consent is required shall not have been obtained; then, with respect to each such Increased Cost Lender, Defaulting Lender or Non-Consenting Lender (the Terminated Lender), Borrower may, by giving written notice to Administrative Agent and any Terminated Lender of its election to do so, elect to cause such Terminated Lender (and such Terminated Lender hereby irrevocably agrees) to assign its outstanding Loans and its Revolving Commitments, if any, in full to one or more Eligible Assignees (each a Replacement Lender) in accordance with the provisions of Section 10.6 and Borrower shall pay the fees, if any, payable thereunder in connection with any such assignment from an Increased Cost Lender, a Non-Consenting Lender or Insolvency Defaulting Lender, and the Funds Defaulting Lender (if not also an Insolvency Defaulting Lender) shall pay the fees, if any, payable thereunder in connection with any such assignment from such Defaulting Lender; provided, (1) on the date of such assignment, the Replacement Lender shall pay to Terminated Lender an amount equal to the sum of (A) an amount equal to the principal of, and all accrued interest on, all outstanding Loans of the Terminated Lender, (B) an amount equal to all unreimbursed drawings that have been funded by such Terminated Lender, together with all then unpaid interest with respect thereto at such time and (C) an amount equal to all accrued, but theretofore unpaid fees owing to such Terminated Lender pursuant to Section 2.11; (2) on the date of such assignment, Borrower shall pay any amounts payable to such Terminated Lender pursuant to Section 2.18(c), 2.19 or 2.20; or otherwise as if it were a prepayment; (3) in the case of any assignment resulting from a claim for compensation under Section 2.19 or payments required to be made under Section 2.20, such assignment will result in a reduction in such compensation or payment and (4) in the event such Terminated Lender is a Non-Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to each matter in respect of which such Terminated Lender was a Non-Consenting Lender; provided that Borrower may not make such election with respect to any Terminated Lender that is also an Issuing Bank unless, prior to the effectiveness of such election, Borrower shall have caused each outstanding Letter of Credit issued thereby to be cancelled. Upon the prepayment of all amounts owing to any Terminated Lender and the termination of such Terminated Lenders Revolving Commitments, if any, such Terminated Lender shall no longer constitute a Lender for purposes hereof; provided that any rights of such Terminated Lender to indemnification hereunder shall survive as to such Terminated Lender. Each Lender agrees that if Borrower exercises its option hereunder to cause an assignment by such Lender as a Terminated Lender, such Lender shall, promptly after receipt of written notice of such election, execute and deliver all documentation necessary to effectuate such assignment in accordance with Section 10.6. In the event that a Terminated Lender does not comply with the requirements of the immediately preceding sentence within one Business Day after receipt of such notice, each Lender hereby authorizes and directs the Administrative Agent to execute and deliver such documentation as may be required to give effect to an assignment in accordance with Section 10.6 on behalf of such Terminated Lender and any such documentation so executed by the Administrative Agent shall be effective for purposes of documenting an assignment pursuant to Section 10.6."
"and its Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to such New Term Loans or New Revolving Loan Commitments and the application of the proceeds thereof, with a Secured Leverage Ratio of ~~2.50~~ 3.00 to 1.00; provided that compliance with such Secured Leverage Ratio shall not be required to the extent (x) such New Revolving Loan Commitments or New Revolving Loans refinance or replace existing Revolving Loan Commitments and Revolving Loans, or (y) such New Term Loans refinance or replace existing Term Loans, or the Cash proceeds of the New Term Loans are applied to prepay then- existing Term Loans in accordance with Section 2.15 (each, a Refinancing Incremental Facility); provided, further, that any New Revolving Loan Commitment or New Term Loan Commitment shall not be less than $25,000,000 individually (or such lesser amount which shall be approved by Administrative Agent or such lesser amount that represents all remaining availability under any limit set forth above in this Section 2.25), and integral multiples of $10,000,000 in excess of that amount. Each such notice shall specify (A) the date (each, an Increased Amount Date) on which Borrower proposes that the New Revolving Loan Commitments or New Term Loan Commitments shall be effective and (B) the identity of each Lender or other Person that is an Eligible Assignee; provided that, Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the allocation of New Revolving Loan Commitments to any Eligible Assignee under clause (ii) of the definition thereof (each, a New Revolving Loan Lender or New Term Loan Lender, as applicable) to whom Borrower proposes any portion of such New Revolving Loan Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that Barclays may elect or decline to arrange such New Revolving Loan Commitments or New Term Loan Commitments, as applicable, in its sole discretion and any Lender approached to provide all or a portion of the New Revolving Loan Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Loan Commitments or New Term Loan Commitment."
"Administrative Agent shall notify Lenders promptly upon receipt of Borrowers notice of each Increased Amount Date and in respect thereof (x) the New Revolving Loan Commitments and the New Revolving Loan Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (y) in the case of each notice to any Revolving Loan Lender, the respective interests in such Revolving Loan Lenders Revolving Loans, in each case subject to the assignments contemplated by this Section."
"(c)The Borrower shall provide the applicable Extension Request at least five (5) Business Days prior to the date on which Lenders under the Existing Tranche are requested to respond (or such shorter period as is agreed to by Administrative Agent in its sole discretion). Any Lender (an Extending Lender) wishing to have all or a portion of its Term Loans or Revolving Commitments of the Existing Tranche subject to such Extension Request modified to constitute Extended Term Loans or Extended Revolving Commitments, as applicable, shall notify the Administrative Agent (an Extension Election) on or prior to the date specified in such Extension Request of the amount of its Term Loans or Revolving Commitments of the Existing Tranche that it has elected to modify to constitute Extended Term Loans or Extended Revolving Commitments, as applicable. In the event that the aggregate amount of Term Loans or Revolving Commitments of the Existing Tranche subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Commitments subject to such Extension Elections shall be modified to constitute Extended Term Loans or Extended Revolving Commitments, as applicable, on a pro rata basis based on the amount of Term Loans or Revolving Commitments included in such Extension Elections. The Borrower shall have the right to withdraw any Extension Request upon written notice to the Administrative Agent in the event that the aggregate amount of Term Loans or Revolving Commitments of the Existing Tranche subject to such Extension Request is less than the amount of Extended Term Loans or Extended Revolving Commitments, as applicable, requested pursuant to such Election Request."
"as identified in Schedule 4.1, (b) has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as proposed to be conducted, to enter into the Credit Documents to which it is a party and to carry out the transactions contemplated thereby, and (c) to the extent such concept is applicable in the relevant jurisdiction, is qualified to do business and in good standing in every jurisdiction where its assets are located and wherever necessary to carry out its business and operations, except in jurisdictions where the failure to be so qualified or in good standing has not had, and could not be reasonably expected to have, a Material Adverse Effect."
"4.5Governmental Consents. (a) The execution, delivery and performance by Credit Parties of the Credit Documents to which they are parties and the consummation of the financing contemplated by this Agreement do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by, any Governmental Authority, except for filings and recordings with respect to the Collateral to be made, or otherwise delivered to Collateral Agent for filing and/or recordation, and (b) with respect to the consummation of each Acquisition, as of the date thereof, consummation of such Acquisition did not require any registration with, consent or approval of, or notice to, or other action to, with or by, any Governmental Authority as of the date thereof, except for such registrations, consents, notices or other actions which were obtained or made on or before such date."
"cash flows, on a consolidated basis, of the Persons described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year end adjustments and the absence of footnotes. As of the Third Restatement Date, none of Borrower or any of its Subsidiaries has any contingent liability or liability for taxes, long term lease or unusual forward or long term commitment that is not reflected in the Historical Financial Statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets or condition (financial or otherwise) of Borrower and its Subsidiaries taken as a whole."
"4.8Projections. On and as of the Third Restatement Date, the Projections of Borrower and its Subsidiaries for the period of Fiscal Year 2012 through and including Fiscal Year 2016 provided to Lenders or prospective Lenders in writing on or prior to the Third Restatement Date (the Projections) are based on good faith estimates and assumptions made by the management of Borrower; provided that the Projections are not to be viewed as facts and that actual results during the period or periods covered by the Projections may differ from such Projections and that the differences may be material."
"(b)No portion of the proceeds of any Credit Extension shall be used in any manner, whether directly or indirectly, that causes or could reasonably be expected to cause, such Credit Extension or the application of such proceeds to violate RegulationT, RegulationU or RegulationX of the Board of Governors or any other regulation thereof."
"Multiemployer Plans, based on information available pursuant to Section4221(e) of ERISA, is not more than $150,000,000. Except as could not reasonably be expected to have a Material Adverse Effect, Borrower, each of its Subsidiaries and each of their ERISA Affiliates have complied with the requirements of Section 515 of ERISA with respect to each Multiemployer Plan and are not in default (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan."
"~~4.24~~ 4.23 Creation, Perfection, etc. Except as otherwise contemplated hereby or under any other Credit Document, including without limitation in Section 3 hereof, all filings and other actions necessary to perfect the Liens on the Collateral created under, and in the manner contemplated by, the Collateral Documents have been duly made or taken or otherwise provided for (to the extent required hereby or by the applicable Collateral Documents), and, to the extent not previously executed and delivered, when executed and delivered, the Collateral Documents will create in favor of Collateral Agent for the benefit of the Secured Parties, or in favor of the Secured Parties, a valid and, together with such filings and other actions (to the extent required hereby or by the applicable Collateral Documents), perfected First Priority Lien on the Collateral, securing the payment of the Obligations."
"4.25Anti-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 to the knowledge of the Borrower, its officers, directors, employees and agents are in compliance with Anti- Corruption Laws and applicable Sanctions in all material respects and are not knowingly engaged in any activity that would reasonably be expected to result in the Borrower being designated as a Sanctioned Person. None of (a) the Borrower, any Subsidiary or to the knowledge of the Borrower or such Subsidiary, any of their respective directors, officers or employees, or (b) to the knowledge of the Borrower, 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 or other transaction contemplated by this Agreement will violate any Anti-Corruption Law or applicable Sanctions."
"(c)Compliance Certificate. Together with each delivery of financial statements of Borrower and its Subsidiaries pursuant to Sections 5.1(a) and 5.1(b), a duly executed and completed Compliance Certificate; provided that after the Amendment No. 14 Effective Date, the Borrower shall have 30 days to submit a new Compliance Certificate for the fiscal year ended December 31, 2016 reflecting the changes to the definition of Consolidated Adjusted EBITDA implemented by Amendment No. 14, which Compliance Certificate shall supersede any such certificate previously delivered to the Administrative Agent;"
"to effect or permit any change referred to in the preceding sentence unless all filings have been made under the Uniform Commercial Code, the PPSA or similar laws of jurisdictions in which Credit Parties are organized or otherwise that are required in order for Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral as contemplated in the Collateral Documents. Borrower also agrees promptly to notify Collateral Agent if any material portion of the Collateral is damaged or destroyed;"
"(l)Annual Collateral Verification. Each year, at the time of delivery of annual financial statements with respect to the preceding Fiscal Year pursuant to Section 5.1(b), Borrower shall deliver to Collateral Agent a certificate of an Authorized Officer (i) either confirming that there has been no change in the information required by the Collateral Questionnaire since the date of the most recently delivered Collateral Questionnaire or the date of the most recent certificate delivered pursuant to this Section and/or identifying such changes and (ii) certifying that all Uniform Commercial Code and PPSA financing statements (including fixtures filings, as applicable) and all supplemental Intellectual Property Security Agreements or other appropriate filings, recordings or registrations, have been filed or recorded in each governmental, municipal or other appropriate office in each jurisdiction identified in the Collateral Questionnaire or pursuant to clause (i) above to the extent necessary to effect, protect and perfect the security interests under the Collateral Documents for a period of not less than 18 months after the date of such certificate (except as noted therein with respect to any continuation statements to be filed within such period);"
"(n)Certification of Public Information. Borrower and each Lender acknowledge that certain of the Lenders may be Public Lenders and, if documents or notices required to be delivered pursuant to this Section 5.1 or otherwise are being distributed through IntraLinks, SyndTrak or another relevant website or other information platform (the Platform), any document or notice that Borrower has indicated contains Non-Public Information shall not be posted on that portion of the Platform designated for such Public Lenders. Borrower agrees to clearly designate all information provided to Administrative Agent by or on behalf of Borrower which is suitable to make available to Public Lenders. If Borrower has not indicated whether a document or notice delivered pursuant to this Section 5.1 contains Non-Public Information, Administrative Agent reserves the right to post such document or notice solely on that portion of the Platform designated for Lenders who wish to receive material non-public information with respect to Borrower, its Subsidiaries and their respective Securities; and"
"(p)General. Any financial statement, report, notice, proxy statement, registration statement, prospectus or other document required to be delivered pursuant to this Section 5.1 shall be delivered in accordance with Section 10.1 and shall be deemed to have been delivered on the date on which such financial statement, report, notice, proxy statement, registration statement, prospectus or other document is posted on the SECs website on the Internet at www.sec.gov and, in each case, such financial statement, report, notice, proxy statement, registration statement, prospectus or other document is readily accessible to"
"5.2Existence. Except as otherwise permitted under Section 6.8, each Credit Party will, and will cause each of its Subsidiaries to, at all times preserve and keep in full force and effect its existence and all rights and franchises, licenses and permits material to its business; provided that no Credit Party (other than Borrower with respect to existence) or any of its Subsidiaries shall be required to preserve any such existence, right or franchise, licenses and permits if such Persons board of directors (or similar governing body) shall determine that the preservation thereof is no longer desirable in the conduct of the business of such Person, and that the loss thereof is not disadvantageous in any material respect to such Person or to Lenders."
"(i)as soon as practicable following receipt thereof, copies of all written reports of environmental audits, investigations or analyses of any kind or character, whether prepared by personnel of Borrower or any of its Subsidiaries or, to the extent in Borrowers or any of its Subsidiaries possession or control, by independent consultants, Governmental Authorities or any other Persons, with respect to significant environmental matters at any Facility or with respect to any Environmental Claims that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect;"
"(iv)prompt written notice describing in reasonable detail (1) any proposed acquisition of stock, assets, or property by Borrower or any of its Subsidiaries that could reasonably be expected to (A) expose Borrower or any of its Subsidiaries to, or result in, Environmental Claims that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or (B) adversely affect the ability of Borrower or any of its Subsidiaries to maintain in full force and effect Governmental Authorizations required under any Environmental Laws for their respective operations, the absence of which could reasonably be expected to result in a Material Adverse Effect and (2) any proposed action to be taken by Borrower or any of its Subsidiaries to modify current operations in a manner that could reasonably be expected to subject Borrower or any of its Subsidiaries to any additional obligations or requirements under any Environmental Laws, to the extent any such obligation or requirement could reasonably be expected to result in a Material Adverse Effect; and"
"(b)Environmental Matters. Each Credit Party shall promptly take, and shall cause each of its Subsidiaries promptly to take, any and all actions necessary to (i) cure any violation of applicable Environmental Laws by such Credit Party or its Subsidiaries that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and (ii) make an appropriate response to any Environmental Claim against such Credit Party or any of its Subsidiaries and discharge any obligations it may have to any Person thereunder where failure to do so could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, except in each case to the extent such Credit Party or Subsidiary is contesting such violation, Environmental Claim or obligation in good faith and by proper proceedings and appropriate reserves are being maintained in accordance with GAAP."
"5.12Interest Rate Protection. No later than ninety (90) days following the Third Restatement Date and at all times thereafter until the third anniversary of the Third Restatement Date, Borrower shall obtain and cause to be maintained protection against fluctuations in interest rates pursuant to one or more Interest Rate Agreements in form and substance reasonably satisfactory to Administrative Agent, in order to ensure that for a period of not less than three years after the Third Restatement Date, no less than 35% of the aggregate principal amount of the total Indebtedness for borrowed money of Borrower and its Subsidiaries then outstanding is either (i) subject to such Interest Rate Agreements or (ii) Indebtedness that bears interest at a fixed rate."
"(m)(i) Indebtedness under any Hedge Agreement (and any guarantees thereof), (ii) Indebtedness under any Cash Management Agreement (and any guarantees thereof) and (iii) Indebtedness arising under any Currency Agreement or Interest Rate Agreement (and, in each case, any guarantees thereof), including any extensions thereof and such increases, if any, as shall result when the underlying obligations of such agreements are marked to market or increased to address accrued interest on the obligation relating to such agreement; provided, that, with respect to Indebtedness under Hedge Agreements, Interest Rate Agreements or Currency Agreements (or Guarantees thereof), such Indebtedness is entered into in the ordinary course of business and not for speculative purposes;"
"(r)provided that no Default or Event of Default has occurred and is continuing or would result therefrom, the incurrence or issuance by Borrower or any Subsidiary of Borrower of Indebtedness which serves to extend, replace, refund, renew, defease or refinance any Indebtedness incurred as permitted under clause (a), (b), (i), (j), (k), (p), (q), (r), (s) ~~or~~ , (v), (w) or (x) of this Section 6.1 or any Indebtedness issued to so extend, replace, refund, renew, defease or refinance such Indebtedness, or any Indebtedness, including additional Indebtedness, incurred to pay premiums (including tender premiums), defeasance costs and fees and expenses in connection therewith (the Refinancing Indebtedness); provided, however, that such Refinancing Indebtedness:"
"(t)Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers compensation, health, death, disability or other employee benefits or property, casualty or liability insurance or self-insurance, or other Indebtedness regarding workers compensation claims pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;"
"( ~~g~~ t) Liens granted by any Canadian Credit Party to a landlord to secure the payment of rent and other obligations under a lease with such landlord for premises situated in the Province of Qubec; provided that such Lien (i) is limited to the tangible assets located at or about such leased premises and (ii) is incurred in the ordinary course of business (a) for amounts not yet overdue or (b) for amounts that are overdue and that (in the case of any such amounts overdue for a period in excess of five days) are being contested in good faith by appropriate proceedings, so long as such reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made for any such contested amounts;"
"6.4Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment except for:"
"Agreement, (v) in the case of any Subsidiary that is not directly or indirectly wholly owned by Borrower, restrictions and conditions imposed by its Organizational Documents or any related joint venture, shareholders or similar agreement; provided that such restrictions and conditions apply only to such Subsidiary and to any Equity Interests in such Subsidiary, or (vi) identified on Schedule 6.5, and any amendments, modifications, extensions or renewals thereof (including any such extension or renewal arising as a result of an extension, renewal or refinancing of any Indebtedness containing such restriction or condition) that do not materially expand the scope of any such restriction or condition taken as a whole."
"(o)Investments in the capital stock of non-wholly owned Subsidiaries in jurisdictions where Applicable Law does not permit Borrower to own 100% of the capital stock of such Subsidiary; provided that, Borrower or one or more of its wholly owned Subsidiaries owns more than 50% of such capital stock and the aggregate amount of Investments made pursuant to this subclause (o) shall not exceed $150,000,000 per annum (with unused amounts in any calendar year permitted to be carried over to the next succeeding calendar year, but not to any subsequent year, and the amount permitted pursuant to this subclause (o) being used prior to the use of any unused amount carried over from the previous year) (all such Investments pursuant to this subclause (o) Permitted Majority Investments)."
"6.11Transactions with Shareholders and Affiliates. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of Borrower on terms that are less favorable to Borrower or that Subsidiary, as the case may be, than those that might be obtained at the time from a Person who is not such an Affiliate; provided that the foregoing restriction shall not apply to (a) any transaction between or among Borrower and the Guarantors; (b) reasonable and customary fees paid to members of the board of directors (or similar governing body) of Borrower or of its Subsidiaries; (c) compensation arrangements (including severance arrangements to the extent approved by a majority of the disinterested members of Borrowers or the applicable Subsidiarys board of directors (or similar governing body) or the applicable committee thereof) for present or former officers and other employees of Borrower or of its Subsidiaries entered into in the ordinary course of business; (d) transactions described in Schedule 6.11; (e) any Restricted Junior Payment permitted pursuant to Section 6.4; (f) indemnities provided for the benefit of, directors, officers or employees of Borrower or of its Subsidiaries in the ordinary course of business; and (g) loans and advances to employees of Borrower or of its Subsidiaries permitted by Section 6.6(f) (as well as advances to employees contemplated by clause (iii) of the defined term Investment)."
"have at law or in equity against any Guarantor by virtue hereof, that upon the failure of Borrower to pay any of the Guaranteed Obligations when and as the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C.  362(a) or analogous provisions of other Insolvency Laws), Guarantors will upon demand pay, or cause to be paid, in Cash, to Administrative Agent for the ratable benefit of Beneficiaries, an amount equal to the sum of the unpaid principal amount of all Guaranteed Obligations then due as aforesaid, accrued and unpaid interest on such Guaranteed Obligations (including interest which, but for Borrowers becoming the subject of a case or proceeding under any Insolvency Law, would have accrued on such Guaranteed Obligations, whether or not a claim is allowed against Borrower for such interest in the related bankruptcy case) and all other Guaranteed Obligations then owed to Beneficiaries as aforesaid."
"7.4Liability of Guarantors Absolute. To the extent permitted under Applicable Law, each Guarantor agrees that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than satisfaction in full of the Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:"
"(c)the obligations of each Guarantor hereunder are independent of the obligations of Borrower and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower or any of such other guarantors and whether or not Borrower is joined in any such action or actions;"
"Management Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Credit Documents or any Hedge Agreements or any Cash Management Agreements; and"
"(g)Each of the Secured Parties agrees not to enforce the guarantee created hereunder by, or any other Obligations under the Credit Document of a Guarantor established in Luxembourg (a Luxembourg Guarantor) in so far as the aggregate obligations and liabilities of any Luxembourg Guarantor with respect to the repayment under a joint and several liability clause of any borrowing or costs or expenses not incurred directly or indirectly by or on behalf of the Luxembourg Guarantor, and the granting of any guarantee, indemnity or security under the Credit Documents exceed 90% each time the higher of (i) the book value of all the assets of the Luxembourg Guarantor at the time of this Agreement or at the time the relevant guarantee or security is enforced or (ii) the net assets (capitaux propres as referred to in article 34 of the Luxembourg law on the commercial register and annual accounts) of such Luxembourg Guarantor as shown in the financial statements as of the date of this Agreement or in the latest financial statements (comptes annuels) available at the date of the relevant payment hereunder and approved by the shareholders of such Luxembourg Company, and as audited by its statutory auditor or its external auditor (rviseur dentreprise), if required by law; it being understood that the payment obligations of the Luxembourg Guarantor shall not be limited to the extent that the Luxembourg Guarantor secures obligations of its direct or indirect Subsidiaries or in respect of sums that have been made directly or indirectly available to the Luxembourg Guarantor. Notwithstanding anything to the contrary in the Credit"
"7.5Waivers by Guarantors. To the extent permitted by Applicable Law, each Guarantor hereby waives, for the benefit of Beneficiaries: (a) any right to require any Beneficiary, as a condition of payment or performance by such Guarantor, to (i) proceed against Borrower, any other guarantor (including any other Guarantor) of the Guaranteed Obligations or any other Person, (ii) proceed against or exhaust any security held from Borrower, any such other guarantor or any other Person, (iii) proceed against or have resort to any balance of any Deposit Account or credit on the books of any Beneficiary in favor of Borrower or any other Person, or (iv) pursue any other remedy in the power of any Beneficiary whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of Borrower or any other Guarantor including any defense based on or arising out of the lack of validity or the unenforceability of the Guaranteed Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of Borrower or any other Guarantor from any cause other than satisfaction in full of the Guaranteed Obligations; (c) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (d) any defense based upon any Beneficiarys errors or omissions in the administration of the Guaranteed Obligations, except behavior which amounts to gross negligence, willful misconduct or bad faith; (e) (i) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms hereof and any legal or equitable discharge of such Guarantors obligations hereunder, (ii) the benefit of any statute of limitations affecting such Guarantors liability hereunder or the enforcement hereof, (iii) any rights to set-offs, recoupments and counterclaims, and (iv) promptness, diligence and any requirement that any Beneficiary protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance hereof, notices of default hereunder, the Hedge Agreements, the Cash Management Agreements or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Guaranteed Obligations or any agreement related thereto, notices of any extension of credit to Borrower and notices of any of the matters referred to in Section 7.4 and any right to consent to any thereof; and (g) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms hereof."
"7.6Guarantors Rights of Subrogation, Contribution, etc. ~~.~~ Until the Guaranteed Obligations shall have been indefeasibly paid in full and the Revolving Commitments shall have terminated and all Letters of Credit shall have expired or been cancelled, each Guarantor hereby waives, to the extent permitted by Applicable Law, any claim, right or remedy, direct or indirect, that such Guarantor now has or may hereafter have against Borrower or any other Guarantor or any of its assets in connection with this Guaranty or the performance by such Guarantor of its obligations hereunder, in each case whether such claim, right or remedy arises in equity, under contract, by statute, under common law or otherwise and including (a) any right of subrogation, reimbursement or indemnification that such Guarantor now has or may hereafter have against Borrower with respect to the Guaranteed Obligations, (b) any right to enforce, or to participate in, any claim, right or remedy that any Beneficiary now has or may hereafter have against Borrower, and (c) any benefit of, and any right to participate in, any collateral or security now or hereafter held by any Beneficiary. In addition, until the Guaranteed Obligations shall have been indefeasibly paid in full and the Revolving Commitments shall have terminated and all Letters of Credit shall have expired or been cancelled, each Guarantor shall withhold exercise of any right of contribution such Guarantor may have against any other guarantor (including any other Guarantor) of the Guaranteed Obligations, including any such right of contribution as contemplated by the Contribution Agreement. Each Guarantor further agrees that, to the extent the waiver or agreement to withhold the exercise of its rights of subrogation, reimbursement, indemnification and contribution as set forth herein is found by a court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation, reimbursement or indemnification such Guarantor may have against Borrower or against any collateral or security, and any rights of contribution such Guarantor may have against any such other guarantor,"
"7.7Subordination of Other Obligations. Any Indebtedness of Borrower or any Guarantor now or hereafter held by any Guarantor (the Obligee Guarantor) is hereby subordinated in right of payment to the Guaranteed Obligations, and any such Indebtedness collected or received by the Obligee Guarantor after an Event of Default has occurred and is continuing shall be held in trust for Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over to Administrative Agent for the benefit of Beneficiaries to be credited and applied against the Guaranteed Obligations but without affecting, impairing or limiting in any manner the liability of the Obligee Guarantor under any other provision hereof. Notwithstanding the foregoing, with respect to any Guarantor incorporated under the laws of Singapore (each, a Singaporean Guarantor), any Indebtedness of Borrower or any Guarantor now or hereafter held by any Singaporean Guarantor is hereby subordinated in right of payment to the Guaranteed Obligations, and any such Indebtedness collected or received by any Singaporean Guarantor after an Event of Default has occurred and is continuing (up to the aggregate amount which may be or become payable as Guaranteed Obligations) shall be held in trust for Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over to Administrative Agent for the benefit of Beneficiaries to be credited and applied against the Guaranteed Obligations but without affecting, impairing or limiting in any manner the liability of such Singaporean Guarantor under any other provision hereof, and it is agreed that nothing in this Section 7.7 is intended to create a charge or other Lien."
"7.12Discharge of Guaranty upon Sale of Guarantor. If all of the Equity Interests of any Guarantor or any of its successors in interest hereunder shall be sold or otherwise disposed of (including by merger, amalgamation or consolidation) in accordance with the terms and conditions hereof, the Guaranty of such Guarantor or such successor in interest, as the case may be, hereunder shall automatically be discharged and released without any further action by any Beneficiary or any other Person effective as of the time of such Asset Sale."
"(ii) in respect of any balance, if and to the extent requested by the Collateral Agent or required under then applicable Swiss law, provide the Collateral Agent with an interim balance sheet audited by the statutory auditors of the Swiss Guarantor setting out the Maximum Amount, take such further corporate and other action as may be required by law (such as board and shareholders approvals and the receipt of any confirmations from the Swiss Guarantors statutory auditors) and other measures necessary to allow the Swiss Guarantor to make the payments agreed hereunder with a minimum of limitations and, immediately thereafter, pay up to the Maximum Amount to the Collateral Agent."
"(i) use its best efforts to ensure that such payments can be made without deduction of Swiss Withholding Tax, or with deduction of Swiss Federal Withholding Tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including tax treaties) rather than payment of the tax;"
(ii) deduct the Swiss Federal Withholding Tax at such rate (being 35% on the date hereof) as in force from time to time if the notification procedure pursuant to sub-paragraph (i) above does not apply; or shall deduct the Swiss Federal Withholding Tax at the reduced rate resulting after discharge of part of such tax by notification if the notification procedure pursuant to sub- paragraph (i) applies for a part of the Swiss Federal Withholding Tax only; and shall pay within the time allowed any such taxes deducted to the Swiss Federal Tax Administration; and
"(e)To the extent such deduction is made, and to the extent the maximum amount of freely disposable shareholder equity pursuant to this Agreement is not fully utilized, the Swiss Guarantor shall be required to pay an additional amount so that after making any required deduction of Swiss Federal Withholding Tax the aggregate net amount paid to the Lenders is equal to the amount which would have been paid if no deduction of Swiss Federal Withholding Tax had been required, provided that the aggregate amount paid (and including amounts withheld) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to this Agreement."
"(b)Default in Other Agreements. (i) Failure of any Credit Party or any of their respective Subsidiaries to pay when due any principal of or interest on or any other amount, including any payment in settlement, payable in respect of one or more items of Indebtedness (other than Indebtedness referred to in Section 8.1(a)) in an individual principal amount (or Net Mark-to-Market Exposure) of $100,000,000 or with an aggregate principal amount (or Net Mark- to-Market Exposure) of $100,000,000 or more, in each case beyond the grace period, if any, provided therefor; or (ii) breach or default by any Credit Party with respect to any other material term of (1) one or more items of Indebtedness in the individual or aggregate principal amounts (or Net Mark-to- Market Exposure) referred to in clause (i) above or (2) any loan agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness, in each case beyond the grace period, if any, provided therefor, if the effect of such breach or default is to cause, or to permit the holder or holders of that Indebtedness (or a trustee on behalf of such holder or holders), to cause, that Indebtedness to become or be declared due and payable (or redeemable) prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be; or"
"(g)Voluntary Bankruptcy; Appointment of Receiver, etc. (i) Borrower or any of its Subsidiaries (other than any Immaterial Subsidiaries) shall have an order for relief entered with respect to it or shall file a petition or application seeking any relief or shall otherwise commence a voluntary case or proceeding under any Insolvency Law, or shall consent to, or fail to contest in a timely manner the commencement of, or the entry of an order for relief in an involuntary case or proceeding, or to the conversion of an involuntary case to a voluntary case or proceeding, under any such law, or shall consent to, or fail to contest in a timely manner, the commencement of, or the appointment of or taking possession by a receiver, receiver-manager, trustee, custodian or other similar officer for all or a substantial part of its property; or Borrower or any of its Subsidiaries (other than any Immaterial Subsidiaries) shall make any assignment for the benefit of creditors; or (ii) Borrower or any of its Subsidiaries (other than any Immaterial Subsidiaries) shall be unable, or shall fail generally, or shall admit in writing its inability, to pay its debts as such debts become due or is otherwise insolvent; or the board of directors (or similar governing body) of Borrower or any of its Subsidiaries (other than any Immaterial Subsidiaries) (or any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of the actions referred to herein or in Section 8.1(f); or"
"(k)Canadian Employee Benefit Plans. (x) There shall occur one or more Canadian Pension Plan Termination Events that have had or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or (y) a Canadian Credit Party fails to make a required contribution to or payment under any Canadian Pension Plan when due and such failure has had or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; or"
"THEN, (1) upon the occurrence of any Event of Default described in Section 8.1(f) or 8.1(g) with respect to Borrower, automatically, and (2) upon the occurrence and during the continuance of any other Event of Default, at the request of (or with the consent of) Requisite Lenders, upon notice to Borrower by Administrative Agent, (A) the Revolving Commitments, if any, of each Lender having such Revolving Commitments and the obligation of Issuing Bank to issue any Letter of Credit shall immediately terminate; (B) each of the following shall immediately become due and payable, in each case without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by each Credit Party: (I) the unpaid principal amount of and accrued interest on the Loans, (II) an amount equal to the maximum amount that may at any time be drawn under all Letters of Credit then outstanding (regardless of whether any beneficiary under any such Letter of Credit shall have presented, or shall be entitled at such time to present, the drafts or other documents or certificates required to draw under such Letters of Credit), to be held as security for Borrowers reimbursement Obligations in respect of Letters of Credit then outstanding and (III) all other Obligations (other than Hedge Agreements and Cash Management Agreements unless and to the extent such agreements are independently declared due and payable in accordance with their respective terms); provided, the foregoing shall not affect in any way the obligations of Lenders under Section 2.3(b)(v) or Section 2.4(e); and (C) Administrative Agent may cause Collateral Agent to enforce any and all Liens and security interests created pursuant to Collateral Documents."
"(a)Administrative Agent shall have the right to resign at any time by giving prior written notice thereof to Lenders and Borrower, and Administrative Agent may be removed at any time with or without cause by an instrument or concurrent instruments in writing delivered to Borrower and Administrative Agent and signed by Requisite Lenders. Administrative Agent shall have the right to appoint a financial institution to act as Administrative Agent and/or 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 Administrative 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 Administrative 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 resignation or any such removal, if a successor Administrative Agent has not already been appointed by the retiring Administrative Agent, Requisite Lenders shall have the right, upon five Business Days notice to Borrower, to appoint a successor Administrative Agent. If neither Requisite Lenders nor Administrative Agent have appointed a successor Administrative Agent, Requisite Lenders shall be deemed to have succeeded to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent; provided that, until a successor Administrative Agent is so appointed by Requisite Lenders or Administrative Agent, any collateral security held by Administrative Agent in its role as Collateral Agent on behalf of the Lenders or the Issuing Bank under any of the Credit Documents shall continue to be held by the retiring Collateral Agent as nominee until such time as a successor Collateral Agent is appointed. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, that successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent and the retiring or removed Administrative Agent shall promptly (i) transfer to such successor Administrative Agent all sums, Securities and other items of Collateral held under the Collateral Documents, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Administrative Agent under the Credit Documents, and (ii) execute and deliver to such successor Administrative Agent such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor Administrative Agent of the security interests created under the Collateral Documents, whereupon such retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder. Except as provided above, any resignation or removal of Barclays or its successor as Administrative Agent pursuant to this Section shall also constitute the resignation or removal of Barclays or its successor as Collateral Agent. After any retiring or removed Administrative Agents resignation or removal hereunder as Administrative Agent, the provisions of this Section 9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent hereunder. Any successor Administrative Agent appointed pursuant to this Section shall, upon its acceptance of such appointment, become the successor Collateral Agent for all purposes hereunder."
"(a)Agents Under Collateral Documents and Guaranty. Each Secured Party hereby further authorizes Administrative Agent or Collateral Agent, as applicable, on behalf of and for the benefit of Secured Parties, to be the agent for and representative of Secured Parties with respect to the Guaranty, the Collateral and the Collateral Documents (including, for the avoidance of doubt, for the purposes of signing, entering into and taking any step under the Collateral Documents in the name and on behalf of the Secured Parties); provided that neither Administrative Agent nor Collateral Agent shall owe any fiduciary duty, duty of loyalty, duty of care, duty of disclosure or any other obligation whatsoever to any holder of Obligations with respect to any Hedge Agreement. Subject to Section 10.5, without further written consent or authorization from any Secured Party, Administrative Agent or Collateral Agent, as applicable may execute any documents or instruments necessary to (i) in connection with a sale or disposition of assets permitted by this Agreement, release any Lien encumbering any item of Collateral that is the subject of such sale or other disposition of assets or to which Requisite Lenders (or such other Lenders as may be required to give such consent under Section 10.5) have otherwise consented ~~or~~ , (ii) release any Guarantor from the Guaranty pursuant to Section 7.12 or with respect to which Requisite Lenders (or such other Lenders as may be required to give such consent under Section 10.5) have otherwise consented or (iii) release any Guarantor designated as an Excluded Subsidiary (solely to the extent such Subsidiary is designated an Immaterial Subsidiary pursuant to clause (b) of the definition of Excluded Subsidiary) or Unrestricted Subsidiary from the Guaranty and any applicable Collateral Documents. Collateral Agent further declares that it holds all Australian Collateral acquired by the Collateral Agent after the date hereof on trust for the benefit of the Secured Parties from time to time (it being understood that the provisions of this Section 9 apply to Collateral Agent in its capacity as trustee of such trust)."
"(e)Intercreditor Agreements. Each Secured Party hereby further authorizes the Administrative Agent or Collateral Agent, as applicable, on behalf of and for the benefit of the Secured Parties, without the further consent or acquiescence of the Secured Parties, to enter into intercreditor agreements and/or make amendments to Collateral Documents, in each case, required under, or in connection with, any Indebtedness permitted under Sections 6.1(q),"
"(3)The Platform and any Approved Electronic Communications are provided as is and as available. None of the Agents nor any of their respective officers, directors, employees, agents, advisors or representatives (the Agent Affiliates) warrant the accuracy, adequacy, or completeness of the Approved Electronic Communications or the Platform and each expressly disclaims liability for errors or omissions in the Platform and the Approved Electronic Communications. 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 the Agent Affiliates in connection with the Platform or the Approved Electronic Communications."
"(a)In addition to the payment of expenses pursuant to Section 10.2, whether or not the transactions contemplated hereby shall be consummated, each Credit Party agrees to defend indemnify, pay and hold harmless each Agent, Issuing Bank and Lender and the officers, partners, members, directors, trustees, advisors, employees, agents, sub-agents and Affiliates of each Agent, Issuing Bank and each Lender (each, an Indemnitee), from and against any and all Indemnified Liabilities, in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of such Indemnitee; provided that no Credit Party shall have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities arise from the gross negligence or willful misconduct of that Indemnitee, in each case as determined by a final, non-appealable judgment of a court of competent jurisdiction, or if such Indemnified Liabilities result from any action, suit or proceeding in contract brought by a Credit Party for direct damages (as opposed to special, indirect, consequential or punitive damages) against such Indemnitee for a material breach by such Indemnitee of its obligations under any Credit Document that is determined in favor of such Credit Party by a final, non-appealable judgment of a court of competent jurisdiction. To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 10.3 apply but are unenforceable in whole or in part because they are violative of any law or public policy, the applicable Credit Party shall contribute the maximum portion that it is permitted to pay and satisfy under Applicable Law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of them."
"(iii)alter the required application of any repayments or prepayments as between Classes pursuant to Section 2.17 without the consent of Lenders holding more than 50% of the aggregate TrancheA Term Loan Exposure of all Lenders, TrancheB Term Loan Exposure of all Lenders, New Term Loan Exposure of all Lenders, Revolving Exposure of all Lenders, as applicable, of each Class which is being allocated a lesser repayment or prepayment as a result thereof; provided that Requisite Lenders may waive, in whole or in part, any prepayment so long as the application, as between Classes, of any portion of such prepayment which is still required to be made is not altered;"
"(b)Register. Borrower, Administrative Agent and Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the corresponding Commitments and Loans listed therein for all purposes hereof, and no assignment or transfer of any such Commitment or Loan shall be effective, in each case, unless and until recorded in the Register following receipt of a fully executed Assignment Agreement effecting the assignment or transfer thereof, together with the required forms and certificates regarding tax matters and any fees payable in connection with such assignment, in each case, as provided in Section 10.6(d). Each assignment shall be recorded in the Register promptly following receipt by the Administrative Agent of the fully executed Assignment Agreement and all other necessary documents and approvals, prompt notice thereof shall be provided to Borrower and a copy of such Assignment Agreement shall be maintained, as applicable. The date of such recordation of a transfer shall be referred to herein as the Assignment Effective Date. Any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Commitments or Loans, absent manifest error."
"(ii)to any Person meeting the criteria of clause (ii) of the definition of the term Eligible Assignee upon giving of notice to Borrower and Administrative Agent and, (x) in the case of assignments of Tranche A Term Loans, TrancheB Term Loans, Revolving Loans or Revolving Commitments to any such Person (except in the case of assignments made by or to Barclays or any of its affiliates), consented to by each of Borrower and Administrative Agent and (y) in the case of assignments of Revolving Loans or Revolving Commitments to any such Person, consented to by Issuing Bank; provided that any such consent (x)shall not be unreasonably withheld or delayed or (y) in the case of Borrower shall not be required at any time an Event of Default shall have occurred and then be continuing; provided, further that (A) each such assignment pursuant to this Section 10.6(c)(ii) shall be in an aggregate amount of not less than $1,000,000 (or such lesser amount as may be agreed to by Borrower and Administrative Agent or as shall constitute the aggregate amount of the TrancheB Term Loans, Revolving Commitments and Revolving Loans of the assigning Lender) with respect to the assignment of the TrancheB Term Loans, Revolving Commitments and Revolving Loans, and $2,500,000 (or such lesser amount as may be agreed to by Borrower and Administrative Agent or as shall constitute the aggregate of the Tranche A Term Loan) with respect to the assignment of TrancheA Term Loans and (B)any required Borrower consent shall be deemed to have been given to any assignment of Loans or Commitments unless it shall object thereto by written notice to Administrative Agent within 5 Business Days after having received notice thereof."
"(2)The holder of any such participation, other than an Affiliate of the Lender granting such participation, shall not be entitled to require such Lender to take or omit to take any action hereunder except that the participation agreement may provide that the Lender must first obtain the participants consent with respect to any amendment, modification or waiver that would (A) extend the final scheduled maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is not extended beyond the Revolving Commitment Termination Date) in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participants participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Commitment shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participants participation is not increased as a result thereof), (B) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under the Collateral Documents (except as expressly provided in the Credit Documents) supporting the Loans hereunder in which such participant is participating. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary 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 Loans or other obligations under this Agreement (the Participant Register). 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."
"(3)Borrower agrees that each participant shall be entitled to the benefits of Sections 2.18(c), 2.19 and 2.20 to the same extent as if it were a Lender (subject to the requirements and limitations thereof, including the requirement to provide forms under Section 2.20(d)) and had acquired its interest by assignment pursuant to paragraph (c) of this Section; provided that a participant shall not be entitled to receive any greater payment under Section 2.19 or 2.20 than the applicable Lender would have been entitled to receive with respect to the participation sold to such participant, except to the extent that entitlement to a greater payment results from a change in law that occurs after such Participant acquires the applicable participation. To the extent permitted by law, each participant also shall be entitled to the benefits of Section 10.4 as though it were a Lender, provided such participant agrees to be subject to Section 2.17 as though it were a Lender."
"10.11Severability. In case any provision in or obligation hereunder or under any other Credit Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby."
"10.12Obligations Several; Independent Nature of Lenders Rights. The obligations of Lenders hereunder are several and no Lender shall be responsible for the obligations or Commitment of any other Lender hereunder. Nothing contained herein or in any other Credit Document, and no action taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a partnership, an association, a joint venture or any other kind of entity. The amounts payable at any time hereunder to each Lender shall be a separate and independent debt, and each Lender shall be entitled to protect and enforce its rights arising out hereof and it shall not be necessary for any other Lender to be joined as an additional party in any proceeding for such purpose."
10.18Usury Savings Clause. If any provision of this Agreement or of any of the other Credit Documents would obligate any Credit Party to make any payment of interest or other amount payable to any Agent or any Lender in an amount or calculated at a rate which would be prohibited by law or would result in a receipt by such Agent or Lender of interest at a criminal rate (as such terms are construed under the Criminal Code (Canada))
"10.25Joint and Several Liability. Notwithstanding any other provision contained herein or in any other Credit Documents, if a secured creditor (as that term is defined under the BIA) is determined by a court of competent jurisdiction not to include a Person to whom obligations are owed on a joint or joint and several basis, then any Canadian Credit Partys Obligations (and the Obligations of each other Credit Party with respect thereto), to the extent such Obligations are secured, only shall be several obligations and not joint or joint and several obligations."
"(a)Notwithstanding any other provision of this Agreement, each Credit Party hereby irrevocably and unconditionally undertakes to pay to the Administrative Agent, as creditor in its own right and not as representative of the other Secured Parties, sums equal to and in the currency of each amount payable by such Credit Party to each of the Secured Parties under each of the Credit Documents as and when that amount falls due for payment under the relevant Credit Document (the French Parallel Debt)."
"(c)The Collateral Agent acts in its own name and not as a trustee, and its claims in respect of the German Parallel Debt shall not be held on trust. The Liens granted under the Credit Documents to the Collateral Agent to secure the German Parallel Debt is granted to the Collateral Agents in its capacity as creditor of the German Parallel Debt and shall not be held on trust."
"10.35Acknowledgement and Consent to Bail-In of EEA Financial Institutions. 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 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:"
"Lux Parties shall mean each of (a)the Lux Borrower, (b)Mallinckrodt Quincy S. r.l., a private limited liability company (socit a responsabilit limite) incorporated under the laws of 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 189.141, (c) Mallinckrodt Lux IP S. r.l., a private limited liability company (socit a responsabilit limite) incorporated under the laws of 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 189.108, (d) Mallinckrodt Windsor S. r.l., a private limited liability company (socit a responsabilit limite) incorporated under the laws of 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 196.469 and (e)Mallinckrodt International Holdings S. r.l., a private limited liability company (socit a responsabilit limite) incorporated under the laws of 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 200.180."
" | (a) | the share pledge agreement, dated March19, 2014, made between the Parent, as pledgor, the Collateral Agent and the Lux Borrower, as company, over 100% of the Equity Interests of the Lux Borrower, as confirmed and supplemented by the confirmation and supplemental agreement, dated August12, 2014, made between, amongst others, the Parent, as original pledgor, Mallinckrodt Quincy S. r.l., as new pledgor, the Collateral Agent and the Lux Borrower, as company, as further amended, restated and confirmed by the amendment, restatement and confirmation agreement, dated May21, 2015, made between Mallinckrodt UK LTD, as new pledgor, Mallinckrodt Quincy S. r.l., as existing pledgor, the Collateral Agent and the Lux Borrower, as company, as further confirmed and amended by the 2015 Lux Master Security Confirmation Agreement, and as further confirmed and amended by an amendment, restatement and confirmation agreement dated September24, 2015, made between Mallinckrodt UK LTD as new sole pledgor, Mallinckrodt Quincy S. r.l. as original pledgor, the Collateral Agent and the Lux Borrower as Lux Borrower; ---|---|--- "
"Revolving Facility Lender under the Credit Agreement, in each case with respect to this clause (v), to the extent such approval is required pursuant to Section 9.04(b)(i)(B) of the Amended Credit Agreement. As of the Effective Time, each of the Administrative Agent and the Collateral Agent hereby expressly consents pursuant to Section 9.08(b) of the Credit Agreement to each of the amendments to the Credit Agreement set forth or provided for herein."
"After giving effect to the amendments contained herein, on the Third Amendment Effective Date each of the Borrowers hereby represents and warrants that: (a)the execution, delivery and performance by such Borrower of this Amendment has been duly authorized by all corporate, stockholder, partnership, limited liability company or other organizational action required to be obtained by such Borrower, (b)this Amendment has been executed and delivered by such Borrower and constitutes the legal, valid and binding obligations of such Borrower enforceable against it in accordance with its terms, subject to (i)the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws affecting creditors rights generally, (ii)general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) implied covenants of good faith and fair dealing, (iv)the need for filings and registrations necessary to perfect the Liens on the Collateral granted by such Borrower in favor of the Collateral Agent, and (v)the effect of any Requirements of Law as they relate to pledges of Equity Interests in Subsidiaries organized outside of the United States (other than pledges made under the laws of the jurisdiction of formation of the issuer of such Equity Interests), (c) the condition set forth in clause (i)of Article IV hereof has been satisfied and (d)the amount of the 2017 Incremental Revolving Facility Commitments does not exceed the Incremental Amount (calculated in accordance with the definition thereof, including, without limitation, assuming such 2017 Incremental Revolving Facility Commitments are fully drawn)."
"Section6.4. Reaffirmation; Acknowledgment. Each Loan Party hereby expressly confirms and acknowledges the terms of this Amendment and affirms and reaffirms (as the case may be), as of the date hereof, that (i)the covenants and agreements contained in each Loan Document to which it is a party, including, in each case, such covenants and agreements as in effect immediately after giving effect to this Amendment and the transactions contemplated hereby; (ii)in the case of each Borrower, its (A) 2017 Term B Loans and (B)its Revolving Facility Credit Exposure with respect to the 2017 Revolving Facility Commitments, in each case arising under this Amendment and the Amended Credit Agreement constitute Obligations for all purposes of the Loan Documents (as modified hereby); and (iii)its Guarantee of the Obligations (including, without limitation, the Obligations with respect to the 2017 Term B Loans and the 2017 Revolving Facility Commitments and the Revolving Facility Credit Exposure thereunder) pursuant to the Amended Credit Agreement and/or the Subsidiary Guarantee Agreement and its grant of Liens on the Collateral to secure the Obligations (including, without limitation, the Obligations with respect to the 2017 Term B Loans and the 2017 Revolving Facility Commitments and the Revolving Facility Credit Exposure thereunder) pursuant to the Security Documents, subject, in each case, to the limitations set forth in the Loan Documents, shall continue in full force and effect, notwithstanding any amendment, supplement or modification effected by this Amendment."
"~~1~~  | ~~This document is a conformed copy reflecting the Incremental Assumption Agreement No. 1, dated August14, 2014 and the Refinancing Amendment No.1 ~~~~and Incremental Assumption Agreement No. ~~ ~~2, dated August 28, 2015. This document is for convenience purposes only, and reference should be made to the actual amendments as the governing instruments.~~ ---|--- * * *"
"ABR shall mean, for any day, a fluctuating rate per annum equal to the highest of (a)the Federal Funds Effective Rate in effect for such day plus 0.50%, (b) the Prime Rate in effect on such day, (c)the Adjusted LIBO Rate for a one-month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1.00% ~~,~~ and (d) solely in the case of ~~Initial~~ 2017 Term B ~~Loans, 1.75% and (e)~~ ~~ solely in the case of the~~ ~~Incremental Term B-1~~ Loans, 1.75%; provided, that for the avoidance of doubt, the LIBO 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 ICE Benchmark Administration Interest Settlement Rates (or the successor thereto if the ICE Benchmark Administration is no longer making a LIBO Rate available) for deposits in Dollars (as set forth by any service selected by the Administrative Agent that has been nominated by the ICE Benchmark Administration (or the successor thereto if the ICE Benchmark Administration is no longer making a LIBO Rate available) as an authorized vendor for the purpose of displaying such rates). Any change in such rate due to a change in the"
"(iii)depreciation, amortization (including amortization of intangibles, deferred financing fees and actuarial gains and losses related to pensions and other post-employment benefits, but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash expenses (excluding any such non-cash charges or expenses to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense that was paid in a prior period) of the Parent and the Subsidiaries for such period; plus"
"Administrative Agent shall have the meaning assigned to such term in the introductory paragraph of this Agreement, together with its successors and assigns; provided that as used herein and in the other Loan Documents, for purposes of actions to be taken hereunder, notices to be received or payments to be received or made in respect of Canadian Dollar Revolving Loans, the term Administrative Agent shall mean the Canadian Sub-Agent until such time (if any) as otherwise designated (on a prospective basis) by the Administrative Agent."
"Borrowing shall mean a group of Loans of a single Type and currency under a single Facility, and made on a single date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in effect; provided that the term Borrowing shall include each consolidated borrowing of Converted 2017 Term B Loans and New 2017 Term B Loans (in each case, as defined in the Third Amendment) as provided in the Third Amendment."
"Borrowing Multiple shall mean (a)in the case of Eurocurrency Loans, $500,000, (b) in the case of ABR Loans, $250,000 and (c)in the case of Swingline Loans, $100,000. Notwithstanding the foregoing, in the case of a Borrowing denominated in an Alternate Currency, the Borrowing Multiple shall be (x)the Alternate Currency Equivalent of the amounts described in the preceding sentence or (y)such other Borrowing Multiple as may be agreed by the Lux Borrower and the Administrative Agent for the respective Alternate Currency."
"Business Day shall mean 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 an ABR Loan, a Eurocurrency Loan, a Bankers Acceptance Loan or a Canadian Prime Rate Loan, the term Business Day shall also exclude any day on which banks are not open for dealings in the relevant Agreed Currency in the London interbank market or the principal financial center of the country, if any, of such Agreed Currency (and, if the Borrowings or L/C Disbursements which are the subject of a borrowing, drawing, payment, reimbursement or rate selection are denominated in euro, the term Business Day shall also exclude any day on which the TARGET payment system is not open for the settlement of payments in euro)."
"Cadence Material Adverse Effect shall mean (with capitalized terms other than Cadence Material Adverse Effect used in this definition having the meanings assigned thereto in the Merger Agreement unless otherwise specified in this definition) any effect, state of facts, condition, circumstance, change, event, development or occurrence that has a material adverse effect on the business, condition (financial or otherwise), assets or results of operations of the Company; provided that none of the following shall either alone or in combination constitute, or be taken into account in determining whether there has been, a Cadence Material Adverse Effect: (i) changes in general economic, credit, capital or financial markets or political conditions in the United States or Canada, including with respect to interest rates or currency exchange rates, (ii) any outbreak or escalation of hostilities, acts of war (whether or not declared), sabotage or terrorism, (iii)any hurricane, tornado, flood, volcano, earthquake or other natural disaster, (iv) any change after the date hereof in applicable Law or GAAP (or authoritative interpretation or enforcement thereof), (v) general conditions in the pharmaceutical industry, (vi)the failure, in and of itself, of Cadence to meet any internal or published projections, forecasts, estimates or predictions in respect of revenues, earnings or other financial or operating metrics, or changes in the market price or trading volume of Shares or the credit rating of Cadence (it being understood that the underlying facts giving rise or contributing to such failure or change may be taken into account in determining whether there has been a Cadence Material Adverse Effect if not otherwise excluded), (vii) solely for purposes of the condition contained in Section 4.02(m), as set forth in Section4.06 of the Disclosure Letter (or in any other section of the Disclosure Letter if the applicability of such disclosure to the condition contained in Section 4.02(m) is reasonably apparent on the face of such disclosure), (viii) any Legal Proceedings made or brought by any of the current or former stockholders of Cadence (on their own behalf or on behalf of Cadence) arising out of or related to the Merger Agreement (as defined in this Agreement) or any of the transactions contemplated thereby, (ix)the execution and delivery of the Merger Agreement or the consummation of the transactions contemplated thereby, or the public announcement thereof, (x) any action taken by Cadence at the Parents express written request, or (xi)the identity of the Parent, except in the cases of clauses (i), (ii), (iii), (iv) or (v), to the extent that Cadence is disproportionately adversely affected thereby as compared with other participants in the pharmaceutical industry (in which case the incremental disproportionate impact or impacts may be taken into account in determining whether there has been, or is reasonably expected to be, a Cadence Material Adverse Effect)."
"(a)expenditures to the extent made with proceeds of the issuance of Qualified Equity Interests (other than Disqualified Stock) of the Parent or capital contributions to the Parent or funds that would have constituted Net Proceeds under clause (a)of the definition of the term Net Proceeds (but that will not constitute Net Proceeds as a result of the first or second proviso to such clause (a)); provided that (i)this clause (a)shall exclude expenditures made with the proceeds from sales of Equity Interests financed as contemplated by Section 6.04(e)(iii), proceeds of Equity Interests used to make Investments pursuant to Section 6.04(p), proceeds of Equity Interests used to make a Restricted Payment in reliance on clause (x)of the proviso to Section 6.06(b) and (ii) such proceeds are not included in any determination of the Available Amount;"
"(b)expenditures of proceeds of insurance settlements, condemnation awards and other settlements in respect of lost, destroyed, damaged or condemned assets, equipment or other property to the extent such expenditures are made to replace or repair such lost, destroyed, damaged or condemned assets, equipment or other property or otherwise to acquire, maintain, develop, construct, improve, upgrade or repair assets or properties useful in the business of the Parent and the Subsidiaries to the extent such"
"Cash Management Agreement shall mean any agreement to provide to the Parent, a Borrower or any Subsidiary Loan Party cash management services for collections, treasury management services (including controlled disbursement, overdraft, automated clearing house fund transfer services, return items and interstate depository network services), any demand deposit, payroll, trust or operating account relationships, commercial credit cards, merchant card, purchase or debit cards, non-card e-payables services, and other cash management services, including electronic funds transfer services, lockbox services, stop payment services and wire transfer services."
"Change of Control shall mean, at any time after the Closing Date, (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 35% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the Parent; (b) the Parent shall cease to own, directly or indirectly, 100% of the Equity Interests of the Lux Borrower or the Co-Borrower (or, if the Parent is a New Parent, of any person which previously constituted a Parent and continues to exist); (c) occupation of a majority of the seats (other than vacant seats) on the Board of Directors of the Parent by persons who (i)were not members of the Board of Directors of the Parent on the Closing Date and (ii)whose election to the Board of Directors of the Parent or whose nomination for election by the stockholders of the Parent was not approved by a majority of the members of the Board of Directors of the Parent then still in office who were either members of the Board of Directors on the Closing Date or whose election or nomination for election was previously so approved; or (d)a Change of Control (as defined in any indenture or credit agreement in respect of any Material Indebtedness for borrowed money) shall have occurred. For purposes of this definition, any New Parent designated as such pursuant to Section10.08 shall not be considered a person or group for purposes of clause (a) above; provided that (x)at the time such person became a New Parent (i)no person or group beneficially owned, directly or indirectly, more than 35% of the ordinary voting power represented by the issued and outstanding Equity Interests of such New Parent and (ii)the Board of Directors of the New Parent did not violate the requirements of immediately preceding clause (c) (with the first reference therein to Parent to be deemed to refer to New Parent and with references to the Parent in sub- clauses (i)and (ii) of said clause (c)to be deemed to be references to the person which was Parent immediately before the succession of the New Parent as the Parent) and (y)after any person becomes a New Parent in accordance with Section10.08 and the preceding provisions of this sentence, all references above (except in sub-clause (c)(i) above) to the Parent shall be deemed to be references to the New Parent (as the successor Parent)."
"(d)after the Closing Date, subject (where applicable) to the Agreed Guarantee and Security Principles, (x)all outstanding Equity Interests of any person that becomes a Subsidiary Loan Party after the Closing Date and (y)all Equity Interests directly acquired by a Loan Party after the Closing Date, other than Excluded Securities, shall have been pledged pursuant to the Security Documents, together with stock powers or other instruments of transfer with respect thereto (as applicable) endorsed in blank;"
"(b) effects of purchase accounting adjustments (including the effects of such adjustments pushed down to such person and such Subsidiaries) in amounts required or permitted by Applicable Accounting Principles, resulting from the application of purchase accounting in relation to any consummated acquisition or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded;"
"(h) any impairment charge or asset write-off and amortization of intangibles, in each case pursuant to Applicable Accounting Principles, shall be excluded; provided that in no event shall amortization of intangibles so excluded in any period of four consecutive fiscal quarters exceed the greater of $20.0million and 10% of Consolidated Net Income for such period (before giving effect to such exclusion);"
"(j) any (i)non-cash compensation charges, (ii)costs and expenses after the Closing Date related to employment of terminated employees, or (iii)costs or expenses realized in connection with or resulting from stock appreciation or similar rights, stock options or other rights existing on the Closing Date of officers, directors and employees, in each case of such person or any of its subsidiaries, shall be excluded;"
"(a) 100% of the aggregate net proceeds (determined in a manner consistent with the definition of Net Proceeds), including cash and the Fair Market Value of tangible assets other than cash, received by the Parent after the Closing Date from the issue or sale of its Qualified Equity Interests, including Qualified Equity Interests of the Parent issued upon conversion of Indebtedness or Disqualified Stock to the extent the Parent or its Wholly Owned Subsidiaries had received the Net Proceeds of such Indebtedness or Disqualified Stock; plus"
"Defaulting Lender shall mean, subject to Section2.24, any Revolving Facility Lender that (a)has failed to (i)fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder or (ii)pay to the Administrative Agent, any Issuing Bank, the Swingline 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 Swingline Loans) within two Business Days of the date when due, (b)has notified a Borrower, the Swingline Lender, Administrative Agent or any Issuing Bank in writing that it does not intend or expect to comply with its funding obligations hereunder or generally under other agreements in which it commits to extend credit, or has made a public statement to that effect, (c) has failed, within three Business Days after written request by the Administrative Agent or a Borrower, to confirm in writing to the Administrative Agent and such 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 such Borrower) ~~or~~ , (d)has become the subject of a Bail-In Action or (e)has, or has a direct or indirect parent company that has, (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 of America"
"Draft shall mean at any time either a depository bill within the meaning of the Depository Bills and Notes Act (Canada), or a bill of exchange, within the meaning of the Bills of Exchange Act (Canada), drawn by the Lux Borrower on a Revolving Facility Lender and bearing such distinguishing letters and numbers as such Revolving Facility Lender may determine, but which at such time has not been completed or accepted by such Revolving Facility Lender."
"Eurocurrency, when used in reference to any Loan or Borrowing, shall mean that such Loan, or the Loans comprising such Borrowing, bears interest at a rate determined by reference to the Adjusted LIBO Rate, which, for the avoidance of doubt, shall not include any Loan or Borrowing denominated in Canadian Dollars."
"(c) (i) Capital Expenditures by the Parent and the Subsidiaries on a consolidated basis during such Applicable Period that are paid in cash and (ii)the aggregate consideration paid in cash during such Applicable Period in respect of Permitted Business Acquisitions and other Investments (excluding intercompany loans and transfers of funds) permitted hereunder, in each case, to the extent not financed with the proceeds of, without duplication, the incurrence of Indebtedness, the sale or issuance of any Equity Interests, any component of Available Amount (in the case of Cumulative Retained Excess Cash Flow Amount, only to the extent attributable to a time prior to such Applicable Period) or any Net Proceeds not otherwise required to prepay the Loans pursuant to the prepayment provisions of this Agreement or the definition of the term Net Proceeds (less any amounts received in respect thereof as a return of capital);"
"FATCA shall mean Sections 1471 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), or any Treasury regulations promulgated thereunder or official administrative interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code or any fiscal or regulatory legislation, rules or practices adopted"
"Fronting Exposure shall mean, at any time there is a Defaulting Lender, (a)with respect to any Issuing Bank, such Defaulting Lenders Revolving Facility Percentage of Revolving L/C Exposure with respect to Letters of Credit issued by such Issuing Bank other than such Revolving L/C Exposure as to which such Defaulting Lenders participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof and (b) with respect to the Swingline Lender, such Defaulting Lenders Swingline Exposure other than Swingline Loans as to which such Defaulting Lenders participation obligation has been reallocated to other Lenders."
"Guarantee of or by any person (the guarantor) shall mean (a)any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary obligation payable or performable by another person (the primary obligor) in any manner, whether directly or indirectly, and including any obligation of the guarantor, 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 owner of such Indebtedness or other obligation of the payment thereof, (iii)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 (iv)entered into for the purpose of assuring in any other manner the holders of such Indebtedness or other obligation of the payment thereof or to protect such holders against loss in respect thereof (in whole or in part), or (b)any"
"Lien on any assets of the guarantor securing any Indebtedness or other obligation (or any existing right, contingent or otherwise, of the holder of Indebtedness or other obligation to be secured by such a Lien) of any other person, whether or not such Indebtedness or other obligation is assumed by the guarantor (other than Liens on Equity Interests of Unrestricted Subsidiaries securing Indebtedness of such Unrestricted Subsidiaries); provided, however, that the term Guarantee shall not include endorsements of instruments for deposit or collection in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or Disposition of assets permitted by this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the Indebtedness 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 such person in good faith. The amount of the Indebtedness subject to any Guarantee provided by any person for purposes of clause (b)above shall (unless the applicable Indebtedness has been assumed by such person) be deemed to be equal to the lesser of (A)the aggregate unpaid amount of such Indebtedness and (B)the Fair Market Value of the property encumbered thereby."
"Hazardous Materials shall mean all pollutants, contaminants, wastes, chemicals, materials, substances and constituents, including, without limitation, explosive or radioactive substances or petroleum by products or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas or pesticides, fungicides, fertilizers or other agricultural chemicals, of any nature subject to regulation or which can give rise to liability under any Environmental Law."
"(a)the excess (if any) of (i) $450,000,000 over (ii)the sum of (x)the aggregate amount of all Incremental Term Loan Commitments and Incremental Revolving Facility Commitments, in each case established after the Closing Date ~~and~~ (it being acknowledged and agreed that as of the Third Amendment Effective Date (and after giving effect to the transactions contemplated therein) no such Incremental Term Loan Commitments or Incremental Revolving Facility Commitments have been established utilizing this clause (a)) and prior to such time pursuant to Section2.21 utilizing this clause (a)and (y) the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.01(v) at such time; plus"
"Other Taxes shall mean any and all present or future stamp or documentary Taxes or any other excise, transfer, sales, property, intangible, mortgage recording or similar Taxes arising from any payment made hereunder or under any other Loan Document or from the execution, registration, delivery or enforcement of, consummation or administration of, from the receipt or perfection of security interest under, or otherwise with respect to, the Loan Documents other than Luxembourg registration duties (droits denregistrement) payable in case of a registration, submission or filing by the Administrative Agent, any Lender or any Secured Party of any Loan Document with the Administration de lEnregistrement et des Domaines in Luxembourg (or otherwise), except if such registration, submission or filing is required to maintain, establish, enforce or preserve the rights of the Administrative Agent, such Lender or such Secured Party under such Loan Document."
"Overnight Foreign Currency Rate shall mean, for any amount payable in an Alternate Currency, the rate of interest per annum as determined by the Administrative Agent at which overnight or weekend deposits in the relevant currency (or if such amount due remains unpaid for more than three (3)Business Days, then for such other period of time as the Administrative Agent may elect) for delivery in immediately available and freely transferable funds would be offered by the Administrative Agent to major banks in the interbank market upon request of such major banks for the relevant currency as determined above and in an amount comparable to the unpaid principal amount of the related Credit Event, plus any taxes, levies,"
"(d)commercial paper, maturing not more than one year after the date of acquisition, issued by a corporation (other than an Affiliate of the Parent) organized and in existence under the laws of the United States of America or any foreign country recognized by the United States of America with a rating at the time as of which any investment therein is made of P 1 (or higher) according to Moodys, or A 1 (or higher) according to S&P (or such similar equivalent rating or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act));"
"(e)securities with maturities of two years or less from the date of acquisition, issued or fully guaranteed by any State, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least A by S&P or A by Moodys (or such similar equivalent rating or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act));"
"Permitted Receivables Facility Assets shall mean (i)Receivables Assets (whether now existing or arising in the future) of the Parent and its Subsidiaries which are transferred, sold and/or pledged to a Receivables Entity or a bank, other financial institution or a commercial paper conduit or other conduit facility established and maintained by a bank or other financial institution, pursuant to a Qualified Receivables Facility and any related Permitted Receivables Related Assets which are also so transferred, sold and/or pledged to such Receivables Entity, bank, other financial institution or commercial paper conduit or other conduit facility, and all proceeds thereof and (ii)loans to the Parent and its Subsidiaries secured by Receivables Assets (whether now existing or arising in the future) and any Permitted Receivables Related Assets of the Parent and its Subsidiaries which are made pursuant to a Qualified Receivables Facility."
"Loan Obligations, such Permitted Refinancing Indebtedness shall be subordinated in right of payment to such Loan Obligations on terms in the aggregate not materially less favorable to the Lenders as those contained in the documentation governing the Indebtedness being Refinanced (as determined by the Lux Borrower in good faith), (d) no Permitted Refinancing Indebtedness shall have any borrower which is different than the borrower of the respective Indebtedness being so Refinanced or have guarantors that are not (or would not have been required to become) guarantors with respect to the Indebtedness being so Refinanced (except that a Loan Party may be added as an additional guarantor), (e) if the Indebtedness being Refinanced is secured (and permitted to be secured), such Permitted Refinancing Indebtedness may be secured by Liens on the same (or any subset of the) assets as secured (or would have been required to secure) the Indebtedness being Refinanced, on terms in the aggregate that are no less favorable to the Secured Parties than, the Indebtedness being refinanced or on terms otherwise permitted by Section6.02 (as determined by the Lux Borrower in good faith) and (f)if the Indebtedness being Refinanced was subject to a Permitted First Lien Intercreditor Agreement or a Permitted Junior Intercreditor Agreement, and if the respective Permitted Refinancing Indebtedness is to be secured by the Collateral, the Permitted Refinancing Indebtedness shall likewise be subject to a Permitted First Lien Intercreditor Agreement or a Permitted Junior Intercreditor Agreement, as applicable."
"Plan shall mean any employee pension benefit plan (other than a Multiemployer Plan) that is (i)subject to the provisions of Title IV of ERISA or Section412 of the Code or Section302 of ERISA, (ii)sponsored or maintained (at the time of determination or at any time within the five years prior thereto) by the Parent, a Borrower, any Subsidiary or any ERISA Affiliate, and (iii)in respect of which the Parent, a Borrower, any Subsidiary or any ERISA Affiliate 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."
"Qualified Receivables Facility shall mean a receivables facility or facilities created under the Permitted Receivables Facility Documents and which is designated as a Qualified Receivables Facility (as provided below), providing for the transfer, sale and/or pledge by a Borrower and/or one or more other Receivables Sellers of Permitted Receivables Facility Assets (thereby providing financing to such Borrower and/or the Receivables Sellers) to (i) a Receivables Entity (either directly or through another Receivables Seller), which in turn shall transfer, sell and/or pledge interests in the respective Permitted Receivables Facility Assets to third-party lenders or investors pursuant to the Permitted Receivables Facility Documents in return for the cash used by such Receivables Entity to acquire the Permitted Receivables Facility Assets from such Borrower and/or the respective Receivables Sellers or (ii)a bank or other financial institution, which in turn shall finance the acquisition of the Permitted Receivables Facility Assets through a commercial paper conduit or other conduit facility, or directly to a commercial paper conduit or other conduit facility established and maintained by a bank or other financial institution that will finance the acquisition of the Permitted Receivables Facility Assets through the commercial paper conduit or other conduit facility, in each case, either directly or through another Receivables Seller, so long as, in the case of each of clause (i)and clause (ii), no portion of the Indebtedness or any other obligations (contingent or otherwise) under such receivables facility or facilities (x)is guaranteed by the Parent or any Subsidiary (excluding guarantees of obligations pursuant to Standard Securitization Undertakings), (y) is recourse to or"
"Questcor Transactions shall mean, collectively, the transactions to occur pursuant to the Questcor Merger Agreement and the Incremental Assumption Agreement No.1, including (a)the consummation of the Questcor Merger; (b)the execution, delivery and performance of the Incremental Assumption Agreement No.1 and any related Loan Documents, the creation of Liens pursuant to any Security Documents to be entered into, modified or supplemented in connection with the Incremental Assumption Agreement No.1, and the initial borrowings of the Incremental Term B-1 Loans; (c)entrance into any other financing arrangements in connection with the consummation of the Questcor Merger; and (d)the payment of the Questcor Transaction Expenses."
"Reportable Event shall mean any reportable event as defined in Section 4043(c) of ERISA or the regulations issued thereunder, other than those events as to which the 30-day notice period referred to in Section 4043(c) of ERISA has been waived, with respect to a Plan (other than a Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m)or (o) of Section414 of the Code)."
"Revolving Facility Lender shall mean a Lender (including an Incremental Revolving Facility Lender, and a Lender providing Extended Revolving Facility Commitments or Replacement Revolving Facility Commitments) with a Revolving Facility Commitment or with outstanding Revolving Facility Loans. For the avoidance of doubt, as of the ~~2015 Revolving Facility~~ Third Amendment Effective Date, the ~~2015~~ 2017 Revolving Facility Lenders shall constitute the Revolving Facility Lenders hereunder."
"Revolving Facility Maturity Date shall mean, as the context may require, (a)with respect to the 2017 Revolving Facility ~~in effect on the Closing Date, March 19, 2019,(b) with respect to the Revolving Facility~~Commitments established pursuant to the ~~Second~~ Third Amendment, ~~March~~ ~~ 19, 2019~~February 28, 2022 and (c)with respect to any other Classes of Revolving Facility Commitments, the maturity dates specified therefor in the applicable Extension Amendment or Refinancing Amendment."
"Revolving L/C Exposure of any Classshall mean at any time the sum of (a)the aggregate undrawn amount of all Letters of Credit applicable to such Classoutstanding at such time (calculated, in the case of Alternate Currency Letters of Credit, based on the Dollar Equivalent thereof) and (b)the aggregate principal amount of all L/C Disbursements applicable to such Classthat have not yet been reimbursed at such time (calculated, in the case of Alternate Currency Letters of Credit, based on the Dollar Equivalent thereof). The Revolving L/C Exposure of any Classof any Revolving Facility Lender at any time shall mean its applicable Revolving Facility Percentage of the aggregate Revolving L/C Exposure applicable to such Classat such time. For all purposes of this Agreement, if on any date of determination a 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 International Standard Practices, International Chamber of Commerce No.590, such Letter of Credit shall be deemed to be outstanding in the amount so remaining available to be drawn. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, that with respect to any Letter of Credit that, by its terms or the terms of any document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time."
"Secured Net Leverage Ratio shall mean, as of any date of determination, the ratio of (a)Consolidated Secured Net Debt as of such date to (b)Adjusted Consolidated EBITDA for the most recently ended Test Period for which financial statements of the Parent have been delivered (or were required to be delivered) as required by this Agreement, all determined on a consolidated basis in accordance with Applicable Accounting Principles; provided that Adjusted Consolidated EBITDA shall be determined for the relevant Test Period on a Pro Forma Basis."
"Subsidiary shall mean, unless the context otherwise requires, a subsidiary of the Parent. Notwithstanding the foregoing (and except for purposes of the definition of Unrestricted Subsidiary contained herein) an Unrestricted Subsidiary shall be deemed not to be a Subsidiary of the Parent or any of its Subsidiaries for purposes of this Agreement."
"Subsidiary Loan Party shall mean (a)each Borrower (other than with respect to its own primary Loan Document Obligations or Secured Cash Management Agreements and any Secured Hedge Agreement to which it is a party), (b) each direct or indirect Wholly Owned Subsidiary of the Parent (other than the Borrowers) (whether owned on the Closing Date or formed or acquired thereafter) that owns directly or indirectly any Equity Interest in any Wholly Owned Domestic Subsidiary of the Parent ( ~~other than~~ which Wholly Owned Domestic Subsidiary of the Parent is not (i)Mallinckrodt Nuclear LLC or (ii)any other Subsidiary if and for so long as such Subsidiary qualifies as an Excluded Subsidiary), (c) each direct or indirect Wholly Owned Domestic Subsidiary of the Parent (other than the Borrowers) (whether owned on the Closing Date or formed or acquired thereafter) (other than (i)Mallinckrodt Nuclear LLC and (ii) any other Subsidiary if and for so long as such Subsidiary qualifies as an Excluded Subsidiary) and (d)any other Wholly Owned Subsidiary of the Parent that may be designated by the Lux Borrower (by way of delivering to the Collateral Agent the Subsidiary Guarantee Agreement (or a supplement to the Subsidiary Guarantee Agreement, as reasonably requested by the Administrative Agent) and any applicable Security Documents, in each case, duly executed by such Subsidiary) in its sole discretion (including, without limitation, in connection with transactions permitted by Section6.05(n)) from time to time to be a guarantor in respect of the Obligations, whereupon such Subsidiary shall be obligated to comply with the other requirements of Section 5.10(d) as if it were newly acquired. Notwithstanding the foregoing, the Cadence IP Licensee shall be excluded as a Subsidiary Loan Party and Guarantor as provided in Section5.13 (and then unless and until it becomes a Guarantor in accordance with the last sentence of Section 5.13(b)). Notwithstanding anything contained in this Agreement to the contrary, a transfer of Collateral from any Loan Party organized in a Qualified Jurisdiction to a Subsidiary Loan Party that is not organized in a Qualified Jurisdiction shall, for purposes of Sections 6.04 and 6.05, be deemed to be an Investment in a Subsidiary that is not a Loan Party and shall be justified as same pursuant to such Sections."
"Termination Date shall mean the date on which (a)all Commitments shall have been terminated, (b)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 in cash (other than in respect of contingent indemnification and expense reimbursement claims not then due), (c) all Letters of Credit (other than those that have been Cash Collateralized with the Minimum L/C Collateral Amount in accordance with Section 2.05(k)) have been cancelled or have expired and all amounts drawn or paid thereunder have been reimbursed in full in cash and (d)to the extent not repaid in full pursuant to preceding clause (b), all Bankers Acceptance Loans have been cash collateralized in an amount equal to the full amount payable on the last day of the Interest Period applicable thereto."
"Weighted Average Life to Maturity shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a)the sum of the products obtained by multiplying (i)the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii)the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b)the then outstanding principal amount of such Indebtedness."
"Section1.04 Exchange Rates; Currency Equivalents. (a)The Administrative Agent shall determine the Spot Rate as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of Alternate Currency Letters of Credit and Alternate Currency Revolving Loans. Such Spot Rate shall become effective as of such Revaluation Date and shall be the Spot Rate employed in converting any amounts between the Dollars and each Alternate Currency until the next Revaluation Date to occur. Except for purposes of financial statements delivered by Loan Parties hereunder or calculating financial ratios hereunder or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as determined by the Administrative Agent in accordance with this Agreement. No Default or Event of Default shall arise as a result of any limitation or threshold set forth in Dollars in Article VI or clause (f)or (j) of Section7.01 being exceeded solely as a result of changes in currency exchange rates from those rates applicable on the first day of the fiscal quarter in which such determination occurs or in respect of which such determination is being made."
"(b) Wherever in this Agreement in connection with a Borrowing, conversion, continuation or prepayment of a Eurocurrency Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Borrowing, Eurocurrency Loan or Letter of Credit is denominated in an Alternate Currency, such amount shall be the Alternate Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Alternate Currency, with 0.5 of a unit being rounded upward), as determined by the Administrative Agent or the Issuing Bank, as applicable."
"Section1.05 Change of Currency. (a)Each obligation of a 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 date hereof shall be redenominated into Euro at the time of such adoption (in accordance with the EMU Legislation). 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."
"Section1.08 Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., an Initial Revolving Loan) or by Type (e.g., a Eurocurrency Loan) or by Classand Type (e.g., a Eurocurrency Initial Revolving Loan). Borrowings also may be classified and referred to by Class (e.g., an Initial Revolving Borrowing) or by Type (e.g., a Eurocurrency Borrowing) or by Classand Type (e.g., ~~a~~ an  Initial Eurocurrency Revolving Borrowing)."
"If no election as to the currency of any Revolving Facility Borrowing is made, then the requested Borrowing shall be made in Dollars. If no election as to the Type of Borrowing is specified, then (x) in the case of a Borrowing denominated in Dollars, the requested Borrowing shall be an ABR Borrowing and (y)in the case of a Borrowing denominated in Canadian Dollars, the requested Borrowing shall be a Canadian Prime Rate Borrowing. If no Interest Period is specified with respect to any requested Eurocurrency Borrowing or a Borrowing of Bankers Acceptance Loans, then the ~~Lux~~ applicable Borrower shall be deemed to have selected an Interest Period of one months duration. Promptly following receipt of a Borrowing Request in accordance with this Section2.03, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lenders Loan to be made as part of the requested Borrowing."
"(d) The Lux Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Facility Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Facility Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Borrowers, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i)such Revolving Facility Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii)references herein to"
"(b) Notice of Issuance, Amendment, Renewal, Extension: Certain Conditions. To request the issuance of a Letter of Credit (or the amendment, renewal (other than an automatic extension in accordance with paragraph (c)of this Section) or extension of an outstanding Letter of Credit), the Lux Borrower or any Additional Borrower shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved by the applicable Issuing Bank) to the applicable Issuing Bank and the Administrative Agent (at least three Business Days in advance of the requested date of issuance, amendment or extension or such shorter period as the Administrative Agent and the Issuing Bank in their sole discretion may agree) a notice in the form of Exhibit D-3 requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended or extended, and specifying the date of issuance, amendment or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c)of this Section), the amount and currency (which shall be an Agreed Currency) of such Letter of Credit, the name and address of the beneficiary thereof, whether such Letter of Credit constitutes a Standby Letter of Credit or a Trade Letter of Credit and such other information as shall be necessary to issue, amend or extend such Letter of Credit. If requested by the applicable Issuing Bank, the Lux Borrower also shall submit a letter of credit application on such Issuing Banks standard form and related documents in connection with any request for a Letter of Credit and in connection with any request for a Letter of Credit to be amended, renewed, modified or extended. A Letter of Credit"
"shall be issued, amended or extended only if (and upon issuance, amendment or extension of each Letter of Credit each Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment or extension, (x)the Dollar Equivalent of the Revolving L/C Exposure shall not exceed $ ~~150~~ ~~,000,000~~ 50,000,000 , (y) the Dollar Equivalent of the Revolving Facility Credit Exposure shall not exceed the applicable Revolving Facility Commitments and (z) the Dollar Equivalent of the Revolving L/C Exposure applicable to all Letters of Credit issued by any given Issuing Bank shall not exceed such Issuing Banks Applicable L/C Sublimit."
"unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or Event of Default or reduction or termination of the Commitments or the fact that, as a result of changes in currency exchange rates, such Revolving Facility Lenders Revolving Facility Credit Exposure at any time might exceed its Revolving Facility Commitment at such time (in which case Section 2.11(f) would apply), and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Upon the reallocation of Revolving L/C Exposure to the ~~2015~~ 2017 Revolving Facility Commitments pursuant to Section2.05(n), it is hereby agreed that, with respect to all outstanding Letters of Credit and unreimbursed L/C Disbursements relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.05(d) to reflect the new Revolving Facility Percentages of each Revolving Facility Lender."
"(e) Reimbursement. If the applicable Issuing Bank shall make any L/C Disbursement in respect of a Letter of Credit, the Borrowers shall (and shall be jointly and severally obligated to) reimburse such L/C Disbursement by paying to the Administrative Agent an amount in Dollars (or if the Issuing Bank shall so elect in its sole discretion by notice to the Lux Borrower, in such Alternate Currency which was paid by the Issuing Bank pursuant to such L/C Disbursement) equal to such L/C Disbursement (or, in the case of an Alternate Currency Letter of Credit where the election described in the immediately preceding parenthetical has not been made by the respective Issuing Bank, the Dollar Equivalent thereof) not later than 2:00 p.m., Local Time, on the day on which such L/C Disbursement is made (or the next succeeding Business Day, if such notice is received after 12:00 noon, Local Time), together with accrued interest thereon from the date of such L/C Disbursement at the rate applicable to ABR Revolving Loans (or, in the case of amounts to be reimbursed in an Alternate Currency as provided above, (x) in the case of amounts owing in Canadian Dollars, at the rate applicable to Canadian Prime Rate Loans and (y)in the case of amounts owing in Alternate Currencies other than Canadian Dollar, at the Overnight Foreign Currency Rate for such Alternate Currency plus the then effective Applicable Margin with respect to ABR Revolving Loans) of the applicable Class; provided, that the applicable Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section2.03 or 2.04 that such payment be financed with an ABR Revolving Facility Borrowing or a Swingline Borrowing of the applicable Class (or, in the case of amounts that the respective Issuing Bank has required be repaid in the respective Alternate Currency in which the Alternate Currency Letter of Credit was denominated, (x)in the case of Canadian Dollar Revolving Loans, Canadian Prime Rate Loans or (y)in the case of any other Alternate Currency, Eurocurrency Borrowings with the shortest then available Interest Period), as applicable, in an amount equal to the Dollar Equivalent thereof (or, in the case of amounts owing in the respective Alternate Currency, the amount so owing in such Alternate Currency) and, to the extent so financed, the Borrowers obligation to make such payment shall be discharged and replaced by the resulting Borrowing (and with interest owing thereon from the date of the respective L/C Disbursement). If the Borrowers fail to reimburse any L/C Disbursement when due, then the Administrative Agent shall promptly notify the applicable Issuing Bank and each other applicable Revolving Facility Lender of the applicable L/C Disbursement, the payment then due from the Borrowers in respect thereof (the Unreimbursed Amount) and, in the case of a Revolving Facility Lender, such Lenders Revolving Facility Percentage thereof. Promptly following receipt of such notice, each Revolving Facility Lender with a Revolving Facility Commitment of the applicable Classshall pay to the Administrative"
"(l) Additional Issuing Banks. From time to time, the Lux Borrower may by notice to the Administrative Agent designate any Lender (in addition to the initial Issuing Bank) each of which agrees (in its sole discretion) to act in such capacity and is reasonably satisfactory to the Administrative Agent as an Issuing Bank. Each such additional Issuing Bank shall execute a counterpart of this Agreement upon the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and shall thereafter be an Issuing Bank hereunder for all purposes."
"(c) Not later than ~~5~~ four (4)Business Days after the date on which ~~the annual~~ ~~financial statements are, or are~~ any ECF Notice is, or is required to be, delivered ~~under~~ pursuant to Section ~~5.04~~ 2.10( ~~a~~ d ) with respect to each Excess Cash Flow Period, the Borrowers shall calculate Excess Cash Flow for such Excess Cash Flow Period and, if and to the extent the amount of such Excess Cash Flow exceeds $0, the Borrowers shall apply an amount equal to (i) the Required Percentage of such Excess Cash Flow minus (ii)to the extent not financed using the proceeds of funded Indebtedness (i.e., indebtedness with a maturity of one year or more at the time of incurrence thereof), the amount of any voluntary payments of Term Loans and amounts used to repurchase outstanding principal of Term Loans during such Excess Cash Flow Period (plus, without duplication of any amounts previously deducted under this clause (ii), the amount of any such voluntary payments and amounts so used to repurchase principal of Term Loans after the end of such Excess Cash Flow Period but before the date of prepayment under this clause (c)) pursuant to Sections 2.11(a) and Section2.25 (it being understood that the amount of any such payments pursuant to Section2.25 shall be calculated to equal the amount of cash used to repay principal and not the principal amount deemed prepaid therewith). Such calculation will be set forth in a certificate signed by a Financial Officer of the Lux Borrower delivered to the Administrative Agent setting forth the amount, if any, of Excess Cash Flow for such fiscal year, the amount of any required prepayment in respect thereof and the calculation thereof in reasonable detail (which may be the applicable ECF Notice)."
"jurisdiction described in preceding clause (x)or (y), as applicable)(i) is prohibited, restricted or delayed by applicable local law from repatriating the respective Net Proceeds to the Lux Borrower, the portion of such Net Proceeds so affected will not be required to be applied to repay Term Loans at the times provided in Section 2.11(b) but may be retained by the applicable Subsidiary so long, but only so long, as the applicable local law will not permit repatriation to the Lux Borrower, and once such repatriation of any of such affected Net Proceeds is permitted under the applicable local law, such repatriation will be effected and such repatriated Net Proceeds will be promptly applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to Section 2.11(b) to the extent provided therein or (ii)cannot repatriate such funds to the Lux Borrower without (in the good faith determination of the Lux Borrower) the repatriation of such Net Proceeds (or a portion thereof) that would otherwise be required to be applied pursuant to Section 2.11(b) resulting in material adverse tax consequences, the Net Proceeds (or portion thereof) so affected may be retained by the applicable Subsidiary (the Parent and the Borrowers hereby agreeing to cause the applicable Subsidiary to promptly use commercially reasonable efforts to take all actions within the reasonable control of the Borrowers that are reasonably required to eliminate such tax effects) until such time as such material adverse costs would not apply to the repatriation thereof, at which time the mandatory prepayments otherwise required by Section 2.11(b) with respect to such Net Proceeds shall be made."
"Section2.12 Fees. (a)The Borrowers jointly and severally agree to pay to the Administrative Agent for the account of each Lender, on the last Business Day of March, June, September and December in each year and on the date on which the Revolving Facility Commitments of all the Lenders shall be terminated as provided herein, a commitment fee (a Commitment Fee) in Dollars on the daily amount of the applicable Available Unused Commitment of such Lender during the preceding quarter (or other period commencing with the Closing Date or ending with the date on which the last of the Commitments of such Lender shall be terminated) at a rate equal to the Applicable Commitment Fee. All Commitment Fees shall be computed on the basis of the actual number of days elapsed (including the first day but excluding"
"the last) in a year of 360 days. For the purpose of calculating any Lenders Commitment Fee, the outstanding Swingline Loans during the period for which such Lenders Commitment Fee is calculated shall be deemed to be zero. The Commitment Fee due to each Lender shall commence to accrue on the Closing Date and shall cease to accrue on the date on which the last of the Commitments of such Lender shall be terminated as provided herein; provided that any such fees accruing after the date on which such Revolving Facility Commitments terminate shall be payable on demand."
"(f) When entering into this Agreement, the parties have assumed that the interest payments under this Agreement are not and will not become subject to any tax deduction on account of Swiss Withholding Tax. Notwithstanding the foregoing, if a tax deduction is required by Swiss law in respect of any payment by a Borrower and if Section2.17 is unenforceable for any reason in respect of such tax deduction, the applicable interest rate in relation to that interest payment shall be the interest rate which would have applied to that interest payment as provided for in this Section2.13 divided by one minus the rate at which the relevant deduction or withholding of Swiss Withholding Tax is required to be made (where the rate at which the relevant deduction or withholding of Swiss Withholding Tax is required to be made is for this purpose expressed as a fraction of one rather than as a percentage), and that Borrower shall be obliged to pay the relevant interest at the adjusted rate in accordance with this Section 2.13(f) and shall make the deduction or withholding of Swiss Withholding Tax on the recalculated interest and all references to a rate of interest in this Agreement shall be construed accordingly. In addition, the relevant Borrower shall as soon as possible after a tax deduction on the account of Swiss Withholding Tax ensure that any person which is entitled to a full or partial refund of said tax deduction is in a position to apply for such refund under Swiss domestic tax law and/or any applicable tax treaty."
"Section2.16 Break Funding Payments. In the event of (a)the payment of any principal of any Eurocurrency Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default or as a result of any prepayment pursuant to Section2.10 or 2.11), (b) the conversion of any Eurocurrency Loan other than on the last day of the Interest Period applicable thereto, (c)the failure to borrow, convert, continue or prepay any Eurocurrency Loan or Bankers Acceptance Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.10(c) and is revoked in accordance therewith) or (d)the assignment of any Eurocurrency Loan or Bankers"
"Section2.17 Taxes. (a)Any and all payments made by or on behalf of a Loan Party under this Agreement or any other Loan Document shall be made free and clear of, and without deduction or withholding for or on account of, any Taxes; provided, that if a Loan Party, the Administrative Agent or any other applicable withholding agent shall be required by applicable Requirement of Law to deduct or withhold any Taxes from such payments, then (i) the applicable withholding agent shall make such deductions or withholdings as are reasonably determined by the applicable withholding agent to be required by any applicable Requirement of Law, (ii)the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority within the time allowed and in accordance with applicable Requirement of Law, and (iii)to the extent withholding or deduction is required to be made on account of Indemnified Taxes or Other Taxes, the sum payable by the Loan Party shall be increased as necessary so that after all required deductions and withholdings have been made (including deductions or withholdings applicable to additional sums payable under this Section2.17) the Administrative Agent or any Lender, as applicable, receives an amount equal to the sum it would have received had no such deductions or withholdings been made. Whenever any Indemnified Taxes or Other Taxes are payable by a Loan Party, as promptly as possible thereafter, such Loan Party shall send to the Administrative Agent for its own account or for the account of a Lender, as the case may be, a copy of an official receipt (or other evidence acceptable to the Administrative Agent or such Lender, acting reasonably) received by the Loan Party showing payment thereof. Without duplication, after any payment of Taxes by any Loan Party or the Administrative Agent to a Governmental Authority as provided in this Section2.17, the ~~Borrower~~ Borrowers shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the ~~Borrower~~ Borrowers, as the case may be, a copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by applicable Requirements of Law to report such payment or other evidence of such payment reasonably satisfactory to the ~~Borrower~~ Borrowers or the Administrative Agent, as the case may be."
"(e)Each Lender and Administrative Agent that is a United States ~~Person~~ person, as defined in section 7701(a)(30) of the Code ~~(other than persons that are~~ ~~corporations or otherwise exempt from United States backup withholding Tax)~~ , shall deliver, at the time(s) and in the manner(s) prescribed by applicable law or reasonably requested by ~~the Co-Borrower~~any Borrower, to the ~~Co-Borrower~~ Borrower and the Administrative Agent (as applicable) ~~,~~ a properly completed and duly executed United States Internal Revenue Form W-9 or any successor form, certifying that such person is exempt from United States backup withholding Tax ~~on payments made hereunder.~~. Each Lender and Administrative Agent that is not a United States person, as defined in section 7701(a)(30) of the Code, shall, if it is entitled to an exemption from or reduction in the rate of U.S. federal withholding Tax under the Code or any treaty to which the United States is a party with respect to payments under this Agreement, deliver, on or prior to the date on which such person becomes a Lender and at the time(s) and manner prescribed by applicable law, to the Borrower and the Administrative Agent (as"
"(f)If any Lender or the Administrative Agent, as applicable, determines, in its sole discretion, that it has received a refund of an Indemnified Tax or Other Tax for which a payment has been made by a Loan Party pursuant to this Agreement or any other Loan Document, which refund in the good faith judgment of such Lender or the Administrative Agent, as the case may be, is attributable to such payment made by such Loan Party, then the Lender or the Administrative Agent, as the case may be, shall reimburse the Loan Party for such amount (net of all reasonable out-of-pocket expenses of such Lender or the Administrative Agent, as the case may be, and without interest other than any interest received thereon from the relevant Governmental Authority with respect to such refund) as the Lender or Administrative Agent, as the case may be, determines in its sole discretion to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position (taking into account expenses or any Taxes imposed on the refund) than it would have been in if the Indemnified Tax or Other Tax giving rise to such refund had not been imposed in the first instance; provided that the Loan Party, upon the request of the Lender or the Administrative Agent 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 Lender or the Administrative Agent in the event the Lender or the Administrative Agent is required to repay such refund to such Governmental Authority. In such event, such Lender or the Administrative Agent, as the case may be, shall, at the ~~Borrower~~ ~~~~ ~~s~~ Borrowers request, provide the ~~Borrower~~ Borrowers with a copy of any notice of assessment or other evidence of the requirement to repay such refund received from the relevant Governmental Authority (provided, that such Lender or the Administrative Agent may delete any information therein that it deems confidential). A Lender or the Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. No Lender nor the Administrative Agent shall be obliged to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Loan Party in connection with this clause (f) or any other provision of this Section2.17."
"(d)Unless the Administrative Agent shall have received notice from the Lux Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the relevant Lenders or the applicable Issuing Bank hereunder that the Borrowers will not make such payment, the Administrative Agent may assume that the Lux Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders or the applicable Issuing Bank, as applicable, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of relevant Lenders or the applicable Issuing Bank, as applicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank 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 Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including without limitation the Overnight Foreign Currency Rate in the case of Loans denominated in an Alternate Currency)."
"Consenting Lender by requiring such Non-Consenting Lender to (and any such Non-Consenting Lender agrees that it shall, upon the applicable Borrowers request) assign its Loans and its Commitments hereunder to one or more assignees reasonably acceptable to (i)the Administrative Agent (unless such assignee is a Lender, an Affiliate of a Lender or an Approved Fund) and (ii)if in respect of any Revolving Facility Commitment or Revolving Facility Loan, the Swingline Lender and the Issuing Bank; provided, that: (i)all Loan Obligations of the Borrowers owing to such Non-Consenting Lender being replaced shall be paid in full in same day funds to such Non-Consenting Lender concurrently with such assignment, (ii)the replacement Lender shall purchase the foregoing by paying to such Non-Consenting Lender a price equal to the principal amount thereof plus accrued and unpaid interest thereon and the replacement Lender or, at the option of the Borrowers, the Borrowers shall pay any amount required by Section 2.12(d) or Section 2.12(f), if applicable, and (iii)the replacement Lender shall grant its consent with respect to the applicable proposed amendment, waiver or consent. No action by or consent of the Non-Consenting Lender shall be necessary in connection with such assignment, which shall be immediately and automatically effective upon payment of such purchase price. In connection with any such assignment the Borrowers, Administrative Agent, such Non-Consenting Lender and the replacement Lender shall otherwise comply with Section9.04; provided, that if such Non-Consenting Lender does not comply with Section9.04 within one Business Day after the applicable Borrowers request, compliance with Section9.04 (but only on the part of the Non-Consenting Lender) shall not be required to effect such assignment."
"(ii)the Other Incremental Term Loans incurred pursuant to clause (a) of this Section2.21 shall rank equally and ratably in right of security with the ~~Initial~~ 2017 Term B Loans or, at the option of the Lux Borrower, shall rank junior in right of security with the ~~Initial~~ 2017 Term B Loans (provided, that if such Other Incremental Term Loans rank junior in right of security with the ~~Initial~~ 2017 Term B Loans, such Other Incremental Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (v)below),"
"(v)with respect to any Other Incremental Term Loan, the All-in Yield shall be as agreed by the respective Incremental Term Lenders and the Borrowers, except that the All-in Yield in respect of any such Other Incremental Term Loan may exceed the All-in Yield in respect of the ~~Initial~~ 2017 Term B Loans ~~or the Incremental Term B-1~~ ~~Loans~~ by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the Term Yield Differential) then the Applicable Margin (or the LIBOR floor as provided in the following proviso) applicable to such ~~Initial~~ 2017 Term B Loans ~~or such~~ ~~Incremental Term B-1 Loans, as the case may be,~~ shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher LIBOR floor being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of three months duration at such time, and, with respect to such excess, the LIBOR floor applicable to the outstanding ~~Initial~~ 2017 Term B Loans ~~or the Incremental Term B-1 Loans, as the~~ ~~case may be,~~ shall be increased to an amount not to exceed the LIBOR floor applicable to such Other Incremental Term Loans prior to any increase in the Applicable Margin applicable to such ~~Initial~~ 2017 Term B Loans ~~or such Incremental Term B-1 Loans then ~~~~outstanding~~ ,"
"(b)The Borrowers may approach any Lender or any other person that would be a permitted Assignee pursuant to Section9.04 to provide all or a portion of the Refinancing Term Loans; provided, that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans may elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated an additional Classof Term Loans for all purposes of this Agreement; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Classof Term Loans made to the Borrowers."
"(c)The Administrative Agent and the Lenders hereby consent to the Purchase Offers and the other transactions effected pursuant to and in accordance with the terms of this Section2.25; provided that, notwithstanding anything to the contrary contained herein, no Lender shall have an obligation to participate in any such Purchase Offer. For the avoidance of doubt, it is understood and agreed that the provisions of Sections 2.16, 2.18 and 9.04 will not apply to the purchases of Term Loans pursuant to Purchase Offers made pursuant to and in accordance with the provisions of this Section2.25. The Auction Manager acting in its capacity as such hereunder shall be entitled to the benefits of the provisions of Article VIII and Section 9.05 to the same extent as if each reference therein to the Agents were a reference to the Auction Manager, and the Administrative Agent shall cooperate with the Auction Manager as reasonably requested by the Auction Manager in order to enable it to perform its responsibilities and duties in connection with each Purchase Offer."
"(b)None of the Parent, the Subsidiaries and their respective properties or assets is in violation of (nor will the continued operation of their material properties and assets as currently conducted violate) any law, rule or regulation (including any zoning, building, ordinance, code or approval or any building permit, but excluding any Environmental Laws, which are the subject of Section3.16) or any restriction of record or indenture, agreement or instrument affecting any Real Property, or is in default with respect to any judgment, writ,"
"(b)Except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, the Parent, each Borrower and each of the Subsidiaries has timely paid or caused to be timely paid all Taxes shown to be due and payable by it on the returns referred to in clause (a)and all other Taxes or assessments (or made adequate provision (in accordance with Applicable Accounting Principles) for the payment of all Taxes due), except Taxes or assessments that are being contested in good faith by appropriate proceedings in accordance with Section5.03 and for which the Parent, any Borrower or any of the Subsidiaries (as the case may be) has set aside on its books adequate reserves in accordance with Applicable Accounting Principles; and"
"Section3.14 No Material Misstatements. (a)All written information (other than the Projections, forward looking information and information of a general economic or industry specific nature) (the Information) concerning the Parent, the Borrowers, the Subsidiaries, the Transactions and any other transactions contemplated hereby included in the Information Memorandum or otherwise prepared by or on behalf of the foregoing or their representatives and made available to any Lenders or the Administrative Agent in connection with the Transactions or the other transactions contemplated hereby (to the extent such Information relates to Cadence on or prior to the Closing Date, to the Parents knowledge), when taken as a whole, was true and correct in all material respects, as of the date such Information was furnished to the Lenders (and as of the Closing Date, with respect to Information provided prior thereto) and did not, taken as a whole, contain any untrue statement of a material fact as of any such date or omit to state a material fact necessary in order to make the statements contained therein, taken as a whole, not materially misleading in light of the circumstances under which such statements were made (giving effect to all supplements and updates provided thereto)."
"(b)The Parent and each of its Subsidiaries is in compliance, in all material respects, with the Trading with the Enemy Act and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V) and any other enabling legislation or executive order relating thereto."
"Section3.24Foreign Corrupt Practices Act. No part of the proceeds of the Loans or any Letter of Credit shall be used directly or, to the knowledge of the Parent and the Borrowers, indirectly, by the Parent and its Subsidiaries in violation of the United States Foreign Corrupt Practices Act of 1977, as amended (the FCPA). The Parent and each of its Subsidiaries is in compliance, in all material respects, with the FCPA."
"Section3.25Luxembourg Regulatory Matters. The Lux Borrower does not carry out any activity in the financial sector on a professional basis (as referred to in the Luxembourg law dated 5April 1993 on the financial sector, as amended from time to time) or any activity requiring the granting of a business license under the Luxembourg law dated 2September 2011 governing the access to the professions of skilled craftsman, tradesman,"
"Section3.26Existing Indebtedness. As of the Closing Date, (a)no direct or contingent obligor under the Intercompany Note Agreement, nor Cadence, is a Restricted Subsidiary under (and as defined in) the Existing Senior Notes Indenture or the Ludlow Indenture and (b)the only owner of Principal Properties under (and as defined in) the Existing Senior Notes Indenture or the Ludlow Indenture) is Mallinckrodt LLC."
"(f)The Administrative Agent shall have received, in respect of Swiss Holdco and Swiss Finco, a managers certificate dated as of the Closing Date and signed by one or several authorized manager(s) of Swiss Holdco and Swiss Finco, respectively, certifying the following items: (i)a true and complete copy of the excerpt from the commercial register and the articles of association, each certified by the competent commercial register authority as of a recent date, (ii)a true and complete copy of resolutions of its managers and quotaholder duly adopted by its managers and quotaholder authorizing the execution, delivery and performance of the Loan Documents to which they are a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, (iii)specimen signatures of the authorized signatories appointed by the manager resolutions to execute the Loan Documents to which they are a party"
"(h)The Administrative Agent shall have received (i)(A) audited consolidated balance sheets and related statements of income and cash flows of the Parent for the most recent three fiscal years ended at least 90 days prior to the Closing Date (it being acknowledged and agreed that the audited financial statements delivered by Parent to the Arrangers for periods ending on or prior to September27, 2013 satisfy the requirements of this clause (A)with respect to the Parent for those periods) and (B)unaudited consolidated balance sheets and related statements of income and cash flows of the Parent for each fiscal quarter ended after the close of its most recent fiscal year and at least 45 days prior to the Closing Date and (ii)(A) audited consolidated balance sheets and related statements of income and cash flows of Cadence for Cadences fiscal years 2013, 2012 and 2011, (B) if the Acceptance Time (as defined in the"
"Merger Agreement) has not occurred by May10, 2014, Cadences unaudited consolidated balance sheets and related statements of income and cash flows of Cadence for Cadences first fiscal quarter of fiscal year 2014 and (C)if the Acceptance Time (as defined in the Merger Agreement) has not occurred by August9, 2014, Cadences unaudited consolidated balance sheets and related statements of income and cash flows of Cadence for Cadences second fiscal quarter of fiscal year 2014."
"(n)The Intercompany Note Agreement shall have been amended to (i)permit the provision of Guarantees with respect to this Agreement (as well as any permitted refinancing indebtedness with respect thereto and any other indebtedness permitted to be incurred under this Agreement and secured by Other First Liens), and the granting of a security interest in all assets to secure the Obligations and any permitted refinancing thereof and any other debt secured by Other First Liens permitted under this Agreement, in each case by the Company or the Restricted Subsidiaries (each as defined therein) and (ii)ensure (in the reasonable judgment of the Lux Borrower) compliance with Section7.2.3 of the Intercompany Note Agreement (as amended as contemplated hereby) after giving effect to the Transactions."
"For purposes of determining compliance with the conditions specified in this Section4.02, each Lender 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 Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and, in the case of a Borrowing, such Lender shall not have made available to the Administrative Agent such Lenders ratable portion of the initial Borrowing."
"Office, if the perfection of the Collateral Agents security interest in such Collateral may not be accomplished prior to the Closing Date after the use of commercially reasonable efforts by the Parent and each Borrower to do so and without undue burden and expense, then the perfection of the security interest in such Collateral shall not constitute a condition precedent to the initial"
"Section5.01 Existence; Business and Properties. (a)Do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence, except (i)in the case of a Subsidiary (other than ~~either~~ any Borrower or a Material Subsidiary), where the failure to do so would not reasonably be expected to have a Material Adverse Effect, (ii)as otherwise permitted under Section6.05, and (iii)for the liquidation or dissolution of Subsidiaries (other than ~~either~~ any Borrower) if the assets of such Subsidiaries to the extent they exceed estimated liabilities are acquired by the Parent or a Wholly Owned Subsidiary of the Parent in such liquidation or dissolution; provided that (x)Subsidiary Loan Parties may not be liquidated into Subsidiaries that are not Loan Parties, (y)Domestic Subsidiaries may not be liquidated into Foreign Subsidiaries (except in each case as permitted under Section6.05(n)), and (z)the Cadence IP Licensee may not be liquidated unless, upon such liquidation, its assets are distributed to a successor Cadence IP Licensee which meets the requirements of Section5.13."
"(e)within 90 days after the beginning of each fiscal year that commences after the Closing Date, a consolidated annual budget for such fiscal year consisting of a projected consolidated balance sheet of the Parent and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected cash flow and projected income (collectively, the Budget), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Parent to the effect that the Budget is based on assumptions believed by the Parent to be reasonable as of the date of delivery thereof;"
"(g)promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Parent, the Borrowers or any of the Subsidiaries, or compliance with the terms of any Loan Document as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender)."
"Section5.09Compliance with Environmental Laws. Comply, and make reasonable efforts to cause all lessees and other persons occupying its properties to comply, with all applicable Environmental Laws; and obtain and renew all required Environmental Permits, except, in each case with respect to this Section5.09, to the extent the failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect."
"Section5.10Further Assurances; Additional Security. (a)Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements and other documents), that the Collateral Agent may reasonably request (including, without limitation, those required by applicable law), to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents."
"(c)If (i)any additional direct or indirect Subsidiary of the Parent is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and such Subsidiary qualifies as a Subsidiary Loan Party or (ii)any person qualifies (but did not previously qualify) as a Subsidiary Loan Party, within 15 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Agent may agree in its sole discretion), notify the Collateral Agent thereof and, within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject to the final paragraph of this Section5.10."
"(e)Indebtedness of the Parent or any Borrower to the Parent or any Subsidiary and of any Subsidiary to the Parent, any Borrower or any other Subsidiary; provided, that (i)Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to the Loan Parties incurred pursuant to this Section 6.01(e) shall be subject to Section 6.04(b) and (ii)Indebtedness owed by any Loan Party to any Subsidiary that is not a Loan Party incurred pursuant to this Section 6.01(e) shall be subordinated in right of payment to the Loan Obligations"
"(p)(i) Permitted Debt (not secured by Other First Liens on the Collateral) so long as immediately after giving effect to the incurrence of such Permitted Debt and the use of proceeds thereof, (A)the Fixed Charge Coverage Ratio on a Pro Forma Basis is not less than 2.00 to 1.00 and (B)no Default or Event of Default shall have occurred and be continuing or shall result therefrom, and (ii)any Permitted Refinancing Indebtedness in respect thereof;"
"Indebtedness (or any portion thereof) described in Sections 6.01(a) through (bb) but may be permitted in part under any relevant combination thereof (and subject to compliance, where relevant, with Section6.02) and (B)in the event that an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of permitted Indebtedness (or any portion thereof) described in Sections 6.01(a) through (bb), the Lux Borrower may, in its sole discretion, classify or reclassify, or later divide, classify or reclassify (as if incurred at such later time), such item of Indebtedness (or any portion thereof) in any manner that complies with this Section6.01 and following Section6.02 and will be entitled to only include the amount and type of such item of Indebtedness (or any portion thereof) in one of the above clauses (or any portion thereof) and such item of Indebtedness (or any portion thereof) shall be treated as having been 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 Indebtedness that may be incurred pursuant to any other clause; provided, that (w)all Indebtedness outstanding under this Agreement shall at all times be deemed to have been incurred pursuant to clause (b)of this Section6.01, (x) all Indebtedness outstanding on the Closing Date under the Existing Senior Notes Indenture or the Ludlow Indenture, as applicable, shall at all times be deemed to have been incurred pursuant to clause (bb) of this Section6.01, (y) all Indebtedness described in Schedule 6.01 (and any Permitted Refinancing Indebtedness incurred in respect thereof) shall be deemed outstanding under Section 6.01(a) and (z)all Indebtedness owing to the Parent or any of its Subsidiaries must be justified as incurred (and outstanding) pursuant to one or more of Sections 6.01(a), (e), (m) and (w). In addition, with respect to any Indebtedness that was permitted to be incurred hereunder on the date of such incurrence, any Increased Amount of such Indebtedness shall also be permitted hereunder after the date of such incurrence."
"(c)any Lien on any property or asset of the Parent or any Subsidiary securing Indebtedness or Permitted Refinancing Indebtedness permitted by Section 6.01(h); provided, that (i) such Lien is not created in contemplation of or in connection with such acquisition or such person becoming a Subsidiary, as the case may be, and (ii)such Lien does not apply to any other property or assets of the Parent or any of the Subsidiaries not securing such Indebtedness at the date of the acquisition of such property or asset and accessions and additions thereto and proceeds and products thereof (other than after-acquired property of any entity so acquired (but not of the Parent or any other Loan Party, including any Loan Party into which such acquired entity is merged) required to be subjected to such Lien pursuant to the terms of such Indebtedness (and refinancings thereof));"
"(e)Liens imposed by law, such as landlords, carriers, warehousemens, mechanics, materialmens, repairmens, suppliers, construction or other like Liens, securing obligations that are not overdue by more than 30 days or that are being contested in good faith by appropriate proceedings and in respect of which, if applicable, the Parent or any Subsidiary shall have set aside on its books reserves in accordance with Applicable Accounting Principles;"
"(m)Liens that are contractual rights of set-off (i)relating to the establishment of depository relations with banks and other financial institutions not given in connection with the issuance of Indebtedness, (ii)relating to pooled deposits, sweep accounts, reserve accounts or similar accounts of the Parent or any Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Parent or any Subsidiary, or (iii)relating to purchase orders and other agreements entered into with customers, suppliers or service providers of the Parent, any Borrower or any Subsidiary in the ordinary course of business;"
"Section6.04Investments, Loans and Advances. (i)Purchase or acquire (including pursuant to any merger with a person that is not a Wholly Owned Subsidiary immediately prior to such merger) any Equity Interests, evidences of Indebtedness or other securities of any other person, (ii)make any loans or advances to or Guarantees of the Indebtedness of any other person, or (iii)purchase or otherwise acquire, in one transaction or a series of related transactions, (x)all or substantially all of the property and assets or business of another person or (y)assets constituting a business unit, line of business or division of such person (each of the foregoing, an Investment), except:"
"(h)Investments (not in Subsidiaries, which are provided in clause (b)above) existing on, or contractually committed as of, the Closing Date and set forth on Part C of Schedule 6.04 and any extensions, renewals, replacements or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h)is not increased at any time above the amount of such Investment existing or committed on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date or as otherwise permitted by this Section6.04);"
"(j)other Investments by the Parent or any Subsidiary in an aggregate outstanding 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 sum of (X)the greater of $600,000,000 and 15.0% of Consolidated Total Assets when made, plus (Y)so long as no Default or Event of Default shall have occurred and be continuing, any portion of the Available Amount on the date of such election that the Lux Borrower elects to apply to this Section 6.04(j)(Y) in a written notice of a Responsible Officer thereof, which notice shall set forth calculations in reasonable detail the amount of Available Amount immediately prior to such election and the amount thereof elected to be so applied, and plus (Z)an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investment (excluding any returns in excess of the amount originally invested) pursuant to clause (X); provided, that if any Investment pursuant to this Section 6.04(j) is made in any person that was not a Subsidiary on the date on which such Investment was made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Lux Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the provisions thereof) and not in reliance on this Section 6.04(j);"
"(m)Investments of a Subsidiary acquired after the Closing Date or of a person merged into the Parent or merged into or consolidated with a Subsidiary after the Closing Date, in each case, (i)to the extent such acquisition, merger or consolidation is permitted under this Section6.04, (ii) in the case of any acquisition, merger or consolidation, in accordance with Section6.05 and (iii)to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;"
"(n)acquisitions by the Parent, any Borrower or any Subsidiary of obligations of one or more officers or other employees of the Parent, ~~the~~ any Borrower or ~~its~~ any of the Subsidiaries in connection with such officers or employees acquisition of Equity Interests of the Parent, so long as no cash is actually advanced by ~~the~~ any Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;"
"(t)Investments by the Parent and the Subsidiaries, if the Parent or any Subsidiary would otherwise be permitted to make a Restricted Payment under Section 6.06(g) in such amount (provided that the amount of any such Investment shall also be deemed to be a Restricted Payment under Section 6.06(g) for all purposes of this Agreement);"
"(y)Investments in joint ventures; provided that the aggregate outstanding amount (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) of Investments made pursuant to this Section 6.04(y) shall not exceed the sum of (A)the greater of $150,000,000 and 4.0% of Consolidated Total Assets when made, plus (B) an aggregate amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investment (excluding any returns in excess of the amount originally invested); provided, that if any Investment pursuant to this Section 6.04(y) is made in any person that was not a Subsidiary on the date on which such Investment was made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Lux Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the provisions thereof) and not in reliance on this Section 6.04(y);"
"Any Investment in any person other than the Parent, a Borrower or a Subsidiary Loan Party that is otherwise permitted by this Section6.04 may be made through intermediate Investments in Subsidiaries that are not Loan Parties and such intermediate Investments shall be disregarded for purposes of determining the outstanding amount of Investments pursuant to any clause set forth above. The amount of any Investment made other than in the form of cash or cash equivalents shall be the Fair Market Value thereof valued at the time of the making thereof, and without giving effect to any subsequent write-downs or write-offs thereof."
"Section6.05Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into, amalgamate with or consolidate with any other person, or permit any other person to merge into, amalgamate with or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all or substantially all of the assets of any other person or division or line of business of a person, except that this Section6.05 shall not prohibit:"
"(b)if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i)the merger, amalgamation or consolidation of any Subsidiary (other than any Borrower or the Cadence IP Licensee) with or into a Borrower in a transaction in which such Borrower is the survivor, (ii)the merger, amalgamation or consolidation of any Subsidiary (other than any Borrower or the Cadence IP Licensee) with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party organized in a Qualified Jurisdiction and, in the case of each of clauses (i)and (ii), no person other than a Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section6.04), (iii) the merger, amalgamation or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv)the liquidation or"
(j)Dispositions of inventory in the ordinary course of business or Dispositions or abandonment of Intellectual Property of the Parent and its Subsidiaries determined in good faith by the management of the Lux Borrower to be no longer economically practicable to maintain or useful or necessary in the operation of the business of the Parent or any of the Subsidiaries;
"Section6.06Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Parents Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, Restricted Payments); provided, however, that:"
(a)Restricted Payments may be made to the Parent or any Subsidiary (provided that Restricted Payments made by a non-Wholly Owned Subsidiary to the Parent or any Subsidiary that is a direct or indirect parent of such Subsidiary must be made on a pro rata basis (or more favorable basis from the perspective of the Parent or such Subsidiary) based on its ownership interests in such non-Wholly Owned Subsidiary);
"(h)additional Restricted Payments, so long as, at the time any such Restricted Payment is made and immediately after giving effect thereto, (x)no Default or Event of Default shall have occurred and is continuing and (y)the Total Net Leverage Ratio on a Pro Forma Basis is not greater than 3.50 to 1.00."
"Section6.08Business of the Parent and the Subsidiaries; Etc.. (a) Notwithstanding any other provisions hereof, engage at any time to any material respect in any business or business activity substantially different from any business or business activity conducted by any of them on the Closing Date or any Similar Business, and in the case of a Receivables Entity, Qualified Receivables Facilities and related activities."
"(f)any restrictions imposed by any agreement relating to Indebtedness incurred pursuant to Section6.01 or Permitted Refinancing Indebtedness in respect thereof, to the extent such restrictions are not materially more restrictive, taken as a whole, than the restrictions contained in this Agreement or are market terms at the time of issuance (in each case as determined in good faith by the Lux Borrower);"
"(k)customary restrictions and conditions contained in the document relating to any Lien, so long as (1)such Lien is a Permitted Lien and such restrictions or conditions relate only to the specific asset subject to such Lien, and (2)such restrictions and conditions are not created for the purpose of avoiding the restrictions imposed by this Section6.09;"
"(f)(i) any event or condition occurs that (A)results in any Material Indebtedness (other than Material Indebtedness extended by one or more Lenders or affiliates (as defined in Regulation U) thereof, if such Material Indebtedness is secured directly or indirectly by Margin Stock) becoming due prior to its scheduled maturity or (B)enables or permits (with all applicable grace periods having expired) the holder or holders of any Material Indebtedness (other than Material Indebtedness extended by one or more Lenders or affiliates (as defined in Regulation U) thereof, if such Material Indebtedness is secured directly or indirectly by Margin Stock) or any trustee or agent on its or their behalf to cause any such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity, in each case without such Material Indebtedness having been discharged, or any such event of or condition having been cured promptly; provided, that any breach of the Financial Covenant giving rise to an event described in clause (B)above shall not, by itself, constitute an Event of Default under 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; or (ii)the Parent or any of the Subsidiaries shall fail to pay the principal of any Material Indebtedness (other than Material Indebtedness extended by one or more Lenders or affiliates (as defined in Regulation U) thereof, if such Material"
"Indebtedness is secured directly or indirectly by Margin Stock) at the stated final maturity thereof; provided, that this clause (f)shall not apply to any secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness if (x)such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness and (y)repayments are made as required by the terms of the respective Indebtedness;"
"(h)an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i)relief in respect of the Parent or any of the Material Subsidiaries, or of a substantial part of the property or assets of the Parent or any Material Subsidiary, under the Bankruptcy Code, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii)the appointment of a receiver, trustee, custodian, sequestrator, conservator, examiner, liquidator or similar official for the Parent or any of the Material Subsidiaries or for a substantial part of the property or assets of the Parent or any of the Material Subsidiaries or (iii)the winding-up, liquidation, reorganization, dissolution, compromise, arrangement or other relief of the Parent or any Material Subsidiary (except in a transaction permitted hereunder); and such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;"
"(l)(i) any Loan Document shall for any reason be asserted in writing by the Parent, any Borrower or any Subsidiary Loan Party not to be a legal, valid and binding obligation of any party thereto, (ii)any security interest purported to be created by any Security Document and to extend to assets that constitute a material portion of the Collateral shall cease to be, or shall be asserted in writing by the Parent or any other Loan Party not to be, a valid and perfected security interest (perfected as or having the priority required by this Agreement or the relevant Security Document and subject to such limitations and restrictions as are set forth herein and therein) in the securities, assets or properties covered thereby, except to the extent that any such loss of perfection or priority results from the limitations of foreign laws, rules and regulations as they apply to pledges of Equity Interests in Foreign Subsidiaries or the application thereof, or from failure of the Collateral Agent to maintain possession of certificates actually delivered to it representing securities pledged under the U.S. Collateral Agreement or to file Uniform Commercial Code continuation statements or take actions described in on Schedule 3.04 (or their equivalent in any applicable jurisdiction) (so long as such failure does not result from the breach or non- compliance with the Loan Documents by any Loan Party), or (iii)the Guarantee of the Parent, or a material portion of the Guarantees pursuant to the Loan Documents by the Subsidiary Loan Parties guaranteeing the Obligations, shall cease to be in full force and effect (other than in accordance with the terms thereof), or shall be asserted in writing by the Parent or any Subsidiary Loan Party not to be in effect or not to be legal, valid and binding obligations (other than in accordance with the terms thereof); provided, that no Event of Default shall occur under this Section 7.01(l) if the Loan Parties cooperate with the Collateral Agent to replace or perfect such security interest and Lien, such security interest and Lien is promptly replaced or perfected (as needed) and the rights, powers and privileges of the Secured Parties are not materially adversely affected by such replacement;"
"Section8.12Right to Realize on Collateral and Enforce Guarantees. In case of the pendency of any proceeding under any Debtor Relief Laws or other judicial proceeding relative to any Loan Party, (i)the Administrative Agent (irrespective of whether the principal of any 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 Parent or any Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise (A)to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of any or all of the 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 Issuing Banks and the Administrative Agent and any Subagents allowed in such judicial proceeding, and (B)to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same, and (ii)any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and Issuing Bank to make such payments to the Administrative Agent and, if the Administrative Agent shall consent to the making of such payments directly to the Lenders and the Issuing Banks, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under the Loan Documents. Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or Issuing Bank or to authorize the Administrative Agent to vote in respect of the claim of any Lender or Issuing Bank in any such proceeding."
"Section9.02Survival of Agreement.All covenants, agreements, representations and warranties made by the Loan Parties herein, in the other Loan Documents and in the certificates or other instruments prepared or 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 making by the Lenders of the Loans and the execution and delivery of the Loan Documents and the issuance of the Letters of Credit,"
"(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 Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal and interest amounts of the Loans and Revolving L/C Exposure owing to, each Lender pursuant to the terms hereof from time to time (the Register). The entries in the Register shall be"
"2.17(e) 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 clause (b)of this Section9.04. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section9.06 as though it were a Lender; provided, that such Participant shall be subject to Section 2.18(c) as though it were a Lender."
"(i)In the case of any assignment, transfer or novation by a Lender to a new Lender, or any participation by such Lender in favor of a Participant, of all or any part of such Lenders rights and obligations under this Agreement or any of the other Loan Documents, such Lender, the Lux Loan Parties and the new Lender or Participant (as applicable) hereby agree that, for the purposes of Article 1278 and/or Article 1281 of the Luxembourg Civil Code (to the extent applicable), any assignment, amendment, transfer and/or novation of any kind permitted under, and made in accordance with the provisions of, this Agreement or any agreement referred to herein to which the Lux Borrower is a party (including any Security Document), any security created or guarantee given under or in connection with this Agreement or any other Loan"
"(d)To the fullest extent permitted by applicable law, neither the Parent nor any Borrower shall assert, and each 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 (including the internet) in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. --- "
"(v)amend or modify the provisions of this Section9.08 or the definition of the terms Required Lenders, Majority Lenders or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date);"
"(d)Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, the Parent and each Borrower (i)to permit additional extensions of credit to be outstanding hereunder from time to time and the accrued interest and fees and other obligations in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees and other obligations in respect thereof and (ii)to include appropriately the holders of such extensions of credit in any determination of the requisite lenders required hereunder, including Required Lenders and the Required Revolving Facility Lenders, and for purposes of the relevant provisions of Section 2.18(b)."
"New ClassLoans and, together with the Existing ClassLoans, the ClassLoans), each Lender holding ClassLoans will be deemed to hold its Pro Rata Share of each ClassLoan on the Applicable Date (but without changing the amount of any such Lenders Term Loans), and each such Lender shall be deemed to have effectuated such assignments as shall be required to ensure the foregoing. The Pro Rata Share of any Lender on the Applicable Date is the ratio of (1)the sum of such Lenders Existing ClassLoans immediately prior to the Applicable Date plus the amount of New ClassLoans made by such Lender on the Applicable Date over (2)the aggregate principal amount of all ClassLoans on the Applicable Date."
"Section9.10Entire Agreement. This Agreement, the other Loan Documents and the agreements regarding certain Fees referred to herein constitute the entire contract between the parties relative to the subject matter hereof. Any previous agreement among or representations from the parties or their Affiliates with respect to the subject matter hereof is superseded by this Agreement and the other Loan Documents. Notwithstanding the foregoing, the Fee Letter shall survive the execution and delivery of this Agreement and remain in full force and effect. Nothing in this Agreement or in the other Loan Documents, expressed or implied, is intended to confer upon any party other than the parties hereto and thereto (and the Indemnitees) rights, remedies, obligations or liabilities under or by reason of this Agreement or the other Loan Documents."
"Section9.11WAIVER 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, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS (WHETHER BASED ON"
"(d)Notwithstanding anything to the contrary contained herein or any other Loan Document, on the Termination Date, upon request of the Lux Borrower, the Administrative Agent and/or the Collateral Agent, as applicable, shall (without notice to, or vote or consent of, any Secured Party) take such actions as shall be required to release its security interest in all Collateral, and to release all obligations under any Loan Document, whether or not on the date of such release there may be any (i)obligations in respect of any Secured Hedge Agreements or any Secured Cash Management Agreements and (ii)any contingent indemnification obligations or expense reimbursement claims not then due; provided, that the Administrative Agent shall have received a certificate of a Responsible Officer of the Lux Borrower containing such certifications as the Administrative Agent shall reasonably request. Any such release of obligations shall be deemed subject to the provision that such obligations shall be reinstated if after such release any portion of any payment in respect of the obligations guaranteed thereby shall be rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of a Borrower or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, a Borrower or any Guarantor or any substantial part of its property, or otherwise, all as though such payment had not been made. The Borrowers agree, jointly and severally, to pay all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent or the Collateral Agent (and their respective representatives) in connection with taking such actions to release security interests in all Collateral and all obligations under the Loan Documents as contemplated by this Section 9.18(d)."
"(a)each Loan Party irrevocably and unconditionally undertakes to pay to the Collateral Agent as an independent and separate creditor an amount (the Parallel Obligations) equal to: (i)all present and future, actual or contingent amounts owing by such Loan Party to a Secured Party under or in connection with the Loan Documents as and when the same fall due for payment under or in connection with the Loan Documents (including, for the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated as of the date of this Agreement) and (ii)any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the Original Obligations);"
"(iii)the maturity of any of the Obligations shall be accelerated, or any of the Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Loan Documents or other documents relating to the Obligations shall be waived or any other guarantee of any of the Obligations or any security therefor shall be released, impaired or exchanged in whole or in part or otherwise dealt with;"
"Section10.08 New Parent. If, at any time, (a)the Parent becomes a Wholly Owned Subsidiary of an entity (x)that is an entity organized in a Qualified Jurisdiction and (y)at least a majority of the Equity Interests of which are owned by persons who were, immediately prior to its acquisition of the Parent, shareholders of the Parent, and (b)no Default or Event of Default has occurred and is continuing (or would exist upon such New Parent becoming the"
"In determining what liens will be granted (and any limitations on the amount or scope of Guarantees) by Borrowers or Guarantors organized outside of the United States (the Non-U.S. Loan Parties) to secure the Obligations (the holders thereof, the Secured Parties) the following matters will be taken into account. Liens shall not be created or perfected, the Obligations may be limited pursuant to the terms of the relevant Security Documents and Guarantees may be limited in amount or scope, to the extent that it would (if created, perfected or not so limited): ---|--- "
"The parties to this Agreement agree to negotiate the form of each Security Document in good faith in a manner consistent with these Agreed Guarantee and Security Principles. The form of Guaranty with respect to any Non-U.S. Loan Party shall be subject to any limitations as set out in the joinder, supplement or other Guaranty applicable to such Non-U.S. Loan Party as may be required in order to comply with local laws in accordance with these Agreed Guarantee and Security Principles. ---|--- "
"Covenants/Representations and Warranties ---|--- Any representations, warranties or covenant which are required to be included in any Security Document shall reflect (to the extent to which the subject matter of such representation, warranty and covenant is the same as the corresponding representation, warranty and undertaking in this Agreement) the commercial deal set out in this Agreement (save to the extent that the Administrative Agents local counsel advise it necessary to include any further provisions (or deviate from those contained in this Agreement) in order to protect or preserve the liens granted to the Administrative Agent on behalf of each Secured Party). Accordingly, the Security Documents shall not include, repeat or extend clauses set out in this Agreement including the representations or undertakings in respect of insurance, maintenance of assets, information, indemnities or the payment of costs, in each case, unless applicable local counsel advise it necessary in order to ensure the validity of any Security Document or the perfection of any lien granted thereunder."
"Subject to (A)and (B) above, where obligatory or customary under the relevant local law all registrations and filings necessary in relation to the Security Documents and/or the liens evidenced or created thereby are to be undertaken within applicable time limits, by the appropriate local counsel (based on local law and custom), unless otherwise agreed. ---|--- "
"4.Each Draft presented by ~~the Lux~~ a Borrower shall (i)be in a minimum Face Amount of CAD$l,000,000 and in an integral multiple of CAD$100,000, (ii) be dated the date of the making of such Bankers Acceptance Loan, and (iii)mature and be payable by the ~~Lux Borrower~~ Borrowers (in common with all other Drafts presented in connection with such Bankers Acceptance Loan) on a Business Day which occurs approximately 1, 2, 3, or, subject to availability, 6 months (or such longer period as the Administrative Agent may agree) at the "
"8.Bankers Acceptances purchased by a Revolving Facility Lender may be held by it for its own account until the contract maturity date or sold by it at any time prior to that date in any relevant Canadian market in such persons sole discretion. Each Borrower hereby renounces, and shall not claim or request or require any Revolving Facility Lender to claim, any days of grace for the payment of any Bankers Acceptance or other B/A Instrument. "
"9.To enable the Revolving Facility Lenders to create Bankers Acceptances or complete Drafts in the manner specified in this Schedule 2.13(g) and the Credit Agreement, the ~~Lux~~ applicable Borrower shall supply each Revolving Facility Lender with such number of Drafts as it may reasonably request, duly endorsed and executed on behalf of the ~~Lux~~ applicable Borrower. Each Revolving Facility Lender is hereby authorized to issue such Bankers Acceptances or Drafts endorsed in blank in such Face Amounts as may be determined by such Revolving Facility Lender, provided that the aggregate amount thereof is equal to the aggregate amount of Bankers Acceptances or Drafts required to be accepted or purchased by such Revolving Facility Lender. None of the Revolving Facility Lenders and their respective directors, officers, employees or representatives (collectively, Revolving Facility Lender Persons) shall be responsible or liable for any such Revolving Facility Lenders failure to accept and/or purchase a B/A Instrument if the cause of such failure is, in whole or in part, due to the failure of the ~~Lux~~ applicable Borrower to provide duly executed and endorsed B/A Instruments to such Revolving Facility Lender on a timely basis nor shall any such Revolving Facility Lender Person be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except loss or improper use arising by reason of the gross negligence or willful misconduct or fraud of such Revolving Facility Lender Person (as determined by a court of competent jurisdiction in a final non-appealable judgment), nor shall any such Revolving Facility Lender Person be liable for any other action taken or omitted to be taken by any of them under Section9 or 10 of this Schedule 2.13(g), except for such Revolving Facility Lender Persons own gross negligence, willful misconduct or fraud (as determined by a court of competent jurisdiction in a final non-appealable judgment). Each Revolving Facility Lender will exercise such care in the custody and safekeeping of Drafts as it would exercise in the custody and safekeeping of similar property owned by it and will, upon request by the Lux Borrower, promptly advise the Lux Borrower of the number and designations, if any, of uncompleted Drafts held by it for the ~~Lux Borrower~~ Borrowers. The signature of any officer of the ~~Lux~~ applicable Borrower on a Draft may be mechanically reproduced and B/A Instruments bearing facsimile signature shall be binding upon the ~~Lux~~ applicable Borrower as if they had been manually signed. Even if the individuals whose manual or facsimile signature appears on any B/A Instrument no longer hold office at the date of signature, at the date of its acceptance by the Revolving Facility Lender or at any time after such date, any B/A Instrument so signed shall be valid and binding upon the ~~Lux~~ applicable Borrower. "
"Bilateral FCI: a Warranty Guarantee, a Performance Guarantee, an Advance Payment Guarantee, a Tender Guarantee, a General Purpose Guarantee, a Counter- Guarantee or a Trade LC, in each case issued by a Bilateral FCI Issuing Lender pursuant to the terms hereof or an Existing FCI designated as a Bilateral FCI on Schedule 1.1 D."
"Foreign Subsidiary Borrower: (a) with respect to the Global Revolving Facility, any Foreign Subsidiary of the Parent Borrower designated as a Foreign Subsidiary Borrower by the Parent Borrower pursuant to Section 2.23(a) that has not ceased to be a Foreign Subsidiary Borrower pursuant to such Section, (b) with respect to the Foreign Trade Facility, any Foreign Subsidiary of the Parent Borrower designated as a Foreign Subsidiary Borrower by the Parent Borrower pursuant to Section 2.23(b) that has not ceased to be a Foreign Subsidiary Borrower pursuant to such Section, and (c) with respect to the Bilateral Foreign Trade Facility, any Foreign Subsidiary of the Parent Borrower designated as a Foreign Subsidiary Borrower by the Parent Borrower pursuant to Section 2.23(b) that has not ceased to be a Foreign Subsidiary Borrower pursuant to such Section. Schedule 2.23 sets forth a list of the Foreign Subsidiary Borrowers under the Global Revolving Facility, the Foreign Trade Facility and/or the Bilateral Foreign Trade Facility as of the Effective Date."
"Foreign Subsidiary Opinion: with respect to any Foreign Subsidiary Borrower, a legal opinion of counsel to such Foreign Subsidiary Borrower addressed to the Administrative Agent (and, with respect to any Foreign Subsidiary Borrower under the Foreign Trade Facility or the Bilateral Foreign Trade Facility, the Foreign Trade Facility Agent) and the Lenders in form and substance reasonably satisfactory to the Administrative Agent (and, with respect to any Foreign Subsidiary Borrower under the Foreign Trade Facility or the Bilateral Foreign Trade Facility, the Foreign Trade Facility Agent)."
"(a) The Credit Agreement and the obligations of the parties thereunder and under the other Loan Documents, are hereby ratified and confirmed and shall remain in full force and effect according to their terms. The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or any Agent under any of the Loan Documents, or, except as expressly provided herein, constitute a waiver or amendment of any provision of any of the Loan Documents. This Amendment shall constitute a Loan Document."
"(ii) This Amendment has been duly executed and delivered by such Loan Party and constitutes such Loan Partys legal, valid and binding obligations, enforceable against such Loan Party 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."
"Execution Version 1 AMENDMENT NO. 1, dated as of March 22, 2017 (this Amendment), to the Credit Agreement, dated as of June 9, 2016, by and among NEXEO SOLUTIONS, LLC, a Del- aware limited liability company (as successor to Neon Finance Company LLC) (the Borrow- er), NEXEO SOLUTIONS HOLDINGS, LLC, a Delaware limited liability company (as suc- cessor to Neon Holding Company LLC) (Holdings), NEXEO SOLUTIONS SUB HOLDING CORP., a Delaware corporation (Sub Holdco), BANK OF AMERICA, N.A., as administrative agent (in such capacity, including any successor thereto, the Administrative Agent) and as col- lateral agent, and each lender from time to time party thereto (collectively, the Lenders and, individually, a Lender) (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the Credit Agreement). Capitalized terms used and not otherwise de- fined herein shall have the meanings assigned to them in the Credit Agreement. WHEREAS, the Borrower, Holdings and Sub Holdco desire to amend the Credit Agreement and the other Loan Documents on the terms set forth herein; WHEREAS, Section 2.13 of the Credit Agreement provides that the Borrower may establish Other Loans for the purpose of refinancing the Initial Term Loans; WHEREAS, (i) each Amendment No. 1 Consenting Lender (as defined in the Amended Credit Agreement (as defined below)) that holds any Initial Term Loans has agreed, unless otherwise specifically indicated on its counterpart to this Amendment, on the terms and conditions set forth herein, to have up to all of its outstanding Initial Term Loans converted on the Amendment No. 1 Effective Date (as defined below) into a like principal amount of Term B Loans (as defined in the Amended Credit Agreement) (as further defined in the Amended Credit Agreement, the Converted Initial Term Loans), (ii) the Additional Term B Lender (as defined in the Amended Credit Agreement) has agreed to provide an Additional Term B Commitment (as defined in the Amended Credit Agreement) in a principal amount equal to the excess of $651,725,000 over the principal amount of Converted Initial Term Loans and (iii) the proceeds of any Term B Loan funded by the Additional Term B Lender pursuant to the Additional Term B Commitment shall be applied to repay Initial Term Loans that are not Converted Initial Term Loans on the Amendment No. 1 Effective Date; NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowl- edged, the parties hereto, intending to be legally bound hereby, agree as follows: Section 1. Amendments to Credit Agreement. The Credit Agreement is, effective as of the Amendment No. 1 Effective Date, 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: dou- ble-underlined text) as set forth in the pages of the Credit Agreement attached as Exhibit A here- to (the Credit Agreement, as amended pursuant to this Amendment and as set forth in Exhibit A, the Amended Credit Agreement). Each Amendment No. 1 Consenting Lender party hereto waives, solely in respect of the prepayment of Initial Term Loans and the making of (or conver- sion into) Converted Initial Term Loans, as contemplated hereby, compliance with the require- ments set forth in Section 2.03(a) of the Credit Agreement that the Borrower give prior notice of a voluntary prepayment of the Initial Term Loans. Exhibit 10.1"
"5 penses required for the recording of the Mortgages and issuance of the Title En- dorsements. Section 5. Counterparts. Section 10.11 of the Credit Agreement is incorpo- rated herein mutatis mutandis. Section 6. Applicable Law. THIS AMENDMENT SHALL BE GOV- ERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. Section 7. Headings. The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof. Section 8. Effect of Amendment. Except as expressly set forth herein (in- cluding in the Amended Credit Agreement), this Amendment (i) shall not by implication or oth- erwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the other Secured Parties under the Credit Agreement or any other Loan Document, and (ii) shall not alter, modify, amend or in any way affect any of the terms, conditions, obliga- tions, covenants or agreements contained in the Credit Agreement or any other provision of the Credit Agreement or any other Loan Document. The parties hereto acknowledge and agree that the amendment of the Credit Agreement pursuant to this Amendment and all other Loan Docu- ments amended and/or executed and delivered in connection herewith shall not constitute a nova- tion of the Credit Agreement and the other Loan Documents as in effect prior to the Amendment No. 1 Effective Date. In each case, as amended by this Amendment (including the Amended Credit Agreement), each and every term, condition, obligation, covenant and agreement con- tained in the Credit Agreement or any other Loan Document (i) is hereby ratified and re-affirmed in all respects and (ii) shall continue in full force and effect. Each Loan Party reaffirms its obli- gations under the Loan Documents (as amended by this Amendment (including the Amended Credit Agreement)) to which it is party and the validity of the Liens granted by it pursuant to, and subject to the limitations and exceptions set forth in, the Collateral Documents. In each case, as amended by this Amendment (including the Amended Credit Agreement), each Collateral Document, and the guaranty of the Obligations, the grants of Liens on the Collateral to secure the Obligations, and the covenants and agreements contained therein, (i) is hereby acknowledged and reaffirmed and (ii) shall continue in full force and effect. Notwithstanding the terms of this Amendment and the effectiveness of the Amended Credit Agreement, each Collateral Document and all of the Collateral described therein do and shall continue to secure the payment of all Ob- ligations of the Loan Parties under the Loan Documents, in each case, as amended by this Amendment (including the Amended Credit Agreement). From and after the effective date of this Amendment, all references to the Credit Agreement in any Loan Document shall, unless ex- pressly provided otherwise, refer to the Amended Credit Agreement. [Signature pages follow.] Exhibit 10.1"
"SECTION 10.03. No Waiver; Cumulative Remedies 130131 SECTION 10.04. Attorney Costs and Expenses 130131 SECTION 10.05. Indemnification by the Borrower 130132 SECTION 10.06. Marshaling; Payments Set Aside 131133 SECTION 10.07. Successors and Assigns. 132133 SECTION 10.08. Confidentiality 136138 SECTION 10.09. Setoff 137138 SECTION 10.10. Interest Rate Limitation 137139 SECTION 10.11. Counterparts; Integration; Effectiveness 138139 SECTION 10.12. Electronic Execution of Assignments and Certain Other Documents 138139 SECTION 10.13. Survival of Representations and Warranties 138139 SECTION 10.14. Severability 138140 SECTION 10.15. GOVERNING LAW. 138140 SECTION 10.16. WAIVER OF RIGHT TO TRIAL BY JURY 139140 SECTION 10.17. Binding Effect 139140 SECTION 10.18. Lender Action 139141 SECTION 10.19. Use of Name, Logo, Etc. 139141 SECTION 10.20. PATRIOT Act 140141 SECTION 10.21. Service of Process 140141 SECTION 10.22. No Advisory or Fiduciary Responsibility 140141 SECTION 10.23. Acknowledgement and Consent to Bail-In of EEA Financial Institutions 140142 SECTION 10.24. Flood Insurance Matters 142 \- iv- Exhibit 10.1"
"Available Amount means, at any time, the excess of (i) the sum (without duplication) of: (a) the greater of (i) $25,000,000 and (ii) 12.5% of EBITDA of Holdings and its Restricted Subsidiaries for the most recently ended Test Period; plus (b) 50.0% of the Consolidated Net Income (not to be less than zero) of Holdings for the period (taken as one accounting period) beginning on the first day of the fiscal quarter in which the Closing Date occurs to the end of Holdings most recently ended fiscal quarter for which internal financial statements are available at such time; plus (c) 100.0% of the aggregate net cash proceeds and the fair market value of marketable securities or other property received by Holdings since immediately after the Closing Date and Not Otherwise Applied from the issue or sale of: (i) (A) Equity Interests of Holdings, including Treasury Capital Stock, but excluding cash proceeds and the fair market value of marketable securities or other property received from the sale of: (x) Equity Interests to any future, present or former employees, directors, officers, managers, distributors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of Holdings, any direct or indirect parent company of Holdings or any of Holdings Subsidiaries after the Closing Date to the extent such amounts have been applied to Restricted Payments made in accordance with Section 7.06(4); (y) Designated Preferred Stock; and (B) to the extent such net cash proceeds are actually contributed to Holdings, Equity Interests of any direct or indirect parent company of Holdings (excluding contributions of the proceeds from the sale of Designated Preferred Stock of such company or contributions to the extent such amounts have been applied to Restricted Payments made in accordance with Section 7.06(4)); or (ii) debt securities of Holdings that have been converted into or exchanged for such Equity Interests of Holdings; provided that this clause (c) shall not include the proceeds from (W) Refunding Capital Stock, (X) Equity Interests or convertible debt securities of Holdings sold to a Restricted Subsidiary, (Y) Disqualified Stock or debt securities that have been converted into Disqualified Stock or (Z) Excluded Contributions; plus (d) 100.0% of the aggregate amount of cash and the fair market value of marketable securities or other property contributed to the capital of Holdings following the Closing Date and Not Otherwise Applied (other than by a Restricted Subsidiary); plus (e) 100.0% of the aggregate amount received in cash and the fair market value of marketable securities or other property received by means of: (i) the sale or other disposition (other than to Holdings or a Restricted Subsidiary) of Restricted Investments made by Holdings or the Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from Holdings or the Restricted Subsidiaries (other than by Holdings or a Restricted Subsidiary) and repayments of loans or advances which constitute Restricted Investments made by Holdings or the Restricted Subsidiaries, in each case after the Closing Date; or \- 5- Exhibit 10.1"
"Borrower Parties means the collective reference to Holdings and its Subsidiaries, including the Borrower, and Borrower Party means any one of them. Borrower Solicitation of Discount Range Prepayment Offers means the solicitation by the Borrower of offers for, and the corresponding acceptance by a Lender of, a voluntary prepayment of Loans at a specified range of discounts to par pursuant to Section 2.03(a)(iv)(C). Borrower Solicitation of Discounted Prepayment Offers means the solicitation by the Borrower of offers for, and the subsequent acceptance, if any, by a Lender of, a voluntary prepayment of Loans at a discount to par pursuant to Section 2.03(a)(iv)(D). Borrowing means a borrowing consisting of Loans of the same Class and Type made, converted or continued on the same date and, in the case of Eurodollar Rate Loans, having the same Interest Period. Borrowing Base means (a) 75% of the book value of accounts receivable, plus (b) 65% of the book value of inventory, in each case, of Holdings and its Restricted Subsidiaries as reflected in the balance sheet of Holdings and its Restricted Subsidiaries as of the last day of the most recently ended Test Period. Business Day means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the jurisdiction where the Administrative Agents Office is located, and if such day relates to any interest rate settings as to a Eurodollar Rate Loan, any fundings, disbursements, settlements and payments in respect of any such Eurodollar Rate Loan, or any other dealings to be carried out pursuant to this Agreement in respect of any such Eurodollar Rate Loan, means any such day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank eurodollar market. Capital Expenditures means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Capitalized Lease Obligations) by Holdings and the Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as capital expenditures on the consolidated statement of cash flows of Holdings and the Restricted Subsidiaries. Capitalized Lease Obligation means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP. Capitalized Software Expenditures shall mean, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by Holdings and the Restricted Subsidiaries during such period in respect of licensed or purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of Holdings and the Restricted Subsidiaries. Capital Stock means: (1) in the case of a corporation, corporate stock; (2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and (4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock. \- 7- Exhibit 10.1"
"Guarantor pursuant to the ABL Facility, any Junior Financing or any Permitted Additional Pari Debt (or, in each case, any Indebtedness that constitutes Refinancing Indebtedness thereof) shall be a Guarantor hereunder; (c) the Obligations and the Guaranty shall have been secured by a first-priority security interest (subject to non-consensual Liens permitted by Section 7.01) in (i) all the Equity Interests of the Borrower, (ii) all Equity Interests of each direct, wholly owned Material Domestic Subsidiary (other than a Material Domestic Subsidiary described in the following clause (iii)(A)) that is directly owned by the Borrower or any Subsidiary Guarantor and (iii) (A) 65% of the issued and outstanding Equity Interests that are Voting Stock and 100% of the issued and outstanding Equity Interest that are not Voting Stock of each wholly owned Material Domestic Subsidiary that is directly owned by the Borrower or by any Subsidiary Guarantor and that is a Domestic Foreign Holding Company and (B) 65% of the issued and outstanding Equity Interests that are Voting Stock and 100% of the issued and outstanding Equity Interest that are not Voting Stock of each wholly owned Material Foreign Subsidiary that is directly owned by the Borrower or by any Subsidiary Guarantor; (d) except to the extent otherwise provided hereunder, including subject to Liens permitted by Section 7.01, or under any Collateral Document, the Obligations and the Guaranty shall have been secured by a perfected first-priority security interest (to the extent such security interest may be perfected by delivering certificated securities or promissory notes, filing financing statements under the Uniform Commercial Code or making any necessary filings with the United States Patent and Trademark Office or United States Copyright Office) in substantially all tangible and intangible personal property of the Borrower and each Guarantor (including accounts (other than any Securitization Assets), inventory, equipment, investment property, contract rights, applications and registrations of intellectual property filed in the United States, other general intangibles, and proceeds of the foregoing), in each case, with the priority required by the Collateral Documents, in each case subject to exceptions and limitations otherwise set forth in this Agreement and the Collateral Documents; provided that any such security interests in ABL First Lien Collateral shall be subject to the terms of the ABL Intercreditor Agreement, provided further that any such security interests in Collateral shall be subject to the terms of the First Lien Intercreditor Agreement, if any, and the Junior Lien Intercreditor Agreement, if any, to the extent applicable; (e) the Collateral Agent shall have received (i) counterparts of a Mortgage with respect to each Mortgaged Property required to be delivered pursuant to Sections 6.11 and 6.13(b), as applicable, duly executed and delivered by the record owner of such property, and (ii) each of the other documents required to be delivered pursuant to Section 6.11 and 6.13, as applicable. The foregoing definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, surveys, abstracts or appraisals with respect to, particular assets if and for so long as, in the reasonable judgment of the Collateral Agent and the Borrower, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance, surveys abstracts or appraisals in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom. The Collateral Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance and surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrower, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents. Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary: (A) the Collateral and Guarantee Requirement shall not apply to any Excluded Property; (B) no deposit account control agreement, securities account control agreement shall be required with respect to any deposit account or securities account except to the extent required under the ABL Facility; provided, \- 11- Exhibit 10.1"
"however, that this requirement shall be deemed satisfied for so long as the ABL Administrative Agent is acting as agent for the benefit of the Collateral Agent pursuant to the ABL Intercreditor Agreement with respect to any deposit account control agreement or securities account control agreement to which the ABL Administrative Agent is a party; provided, further, however, that in no event shall the Borrower or any Guarantor be required to execute or deliver (or maintain in effect) any deposit account control agreement or securities account control agreement if there is no ABL Facility then in effect or such control agreement is not otherwise required to be delivered to the ABL Administrative Agent under the terms of the ABL Facility; (C) no actions in any jurisdiction other than the U.S. or that are necessary to comply with the Laws of any jurisdiction other than the U.S. shall be required in order to create any security interests in assets located, titled, registered or filed outside of the U.S. or to perfect such security interests (it being understood that there shall be no security agreements, pledge agreements, or share charge (or mortgage) agreements governed under the Laws of any jurisdiction other than the U.S.); and (D) no stock certificates of Immaterial Subsidiaries shall be required to be delivered to the Collateral Agent. Collateral Documents means, collectively, the Security Agreement, the Intellectual Property Security Agreements, the Mortgages, collateral assignments, security agreements, pledge agreements or other similar agreements delivered to the Agents and the Lenders pursuant to Sections 4.01, 6.11 or 6.13, the Guaranty, the Security Agreement, the ABL Intercreditor Agreement, the First Lien Intercreditor Agreement (if any), the Junior Lien Intercreditor Agreement (if any) and each of the other agreements, instruments or documents that creates or purports to create a Lien or Guarantee in favor of the Collateral Agent for the benefit of the Secured Parties. Commitment means, as to each Lender, its obligation to make a Loan to the Borrower hereunder, expressed as an amount representing the maximum principal amount of the Loan to be made by such Lender under this Agreement, as such commitment may be reduced or increased from time to time pursuant to (a) assignments by or to such Lender pursuant to an Assignment and Assumption, (b) an Incremental Amendment or (c) a Refinancing Amendment. Committed Loan Notice means a notice of (a) a Borrowing with respect to a given Class of Loans, (b) a conversion of Loans of a given Class from one Type to the other, or (c) a continuation of Eurodollar Rate Loans of a given Class, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A or such other form as may be 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. Company has the meaning specified in the introductory paragraph to this Agreement. Company Material Adverse Effect means a Company Material Adverse Effect as defined in the Acquisition Agreement. Compliance Certificate means a certificate substantially in the form of Exhibit C, which certificate shall in any event be a certificate of either the chief financial officer or the treasurer of the Borrower (a) certifying as to whether a Default has occurred and is continuing and, if applicable, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (b) setting forth reasonably detailed calculations, in the case of financial statements delivered under Section 6.01(a), beginning with the financial statements for the fiscal year of the Borrower ending September 30, 2017, of Excess Cash Flow for such fiscal year, (c) commencing with the certificate delivered pursuant to Section 6.02(a) for the fiscal quarter ending September 30, 2016, setting forth a calculation of the First Lien Senior Secured Net Leverage Ratio, the Secured Net Leverage Ratio and the Consolidated Net Leverage Ratio as of the end of the most recent four fiscal quarter period for which such financial statements are being delivered and (d) in the case of financial statements delivered under Section 6.01(a), setting forth a reasonably detailed calculation of the Net Cash Proceeds received during the applicable period by or on behalf of, Holdings or any of its Restricted Subsidiaries in respect of any Disposition subject to prepayment pursuant to Section \- 12- Exhibit 10.1"
"2.03(b)(ii)(A) and the portion of such Net Cash Proceeds that has been invested or are intended to be reinvested in accordance with Section 2.03(b)(ii)(B). Consolidated Current Assets means, as at any date of determination, the total assets of Holdings and the Restricted Subsidiaries on a consolidated basis that may properly be classified as current assets in conformity with GAAP, excluding cash and Cash Equivalents, amounts related to current or deferred taxes based on income or profits, assets held for sale, loans (permitted) to third parties, pension assets, deferred bank fees, derivative financial instruments and any assets in respect of Hedging Obligations, and excluding the effects of adjustments pursuant to GAAP resulting from the application of recapitalization accounting or purchase accounting, as the case may be, in relation to the Transaction or any consummated acquisition. Consolidated Current Liabilities means, as at any date of determination, the total liabilities of Holdings and the Restricted Subsidiaries on a consolidated basis that may properly be classified as current liabilities in conformity with GAAP, excluding (A) the current portion of any Funded Debt, (B) the current portion of interest, (C) accruals for current or deferred taxes based on income or profits, (D) accruals of any costs or expenses related to restructuring reserves or business optimization costs, (E) revolving loans, swingline loans and letter of credit obligations under the ABL Facility or any other revolving credit facility, (F) the current portion of any Capitalized Lease Obligation, (G) deferred revenue arising from cash receipts that are earmarked for specific projects, (H) liabilities in respect of unpaid earn-outs, (I) the current portion of any other long-term liabilities, (J) the current portion of deferred acquisition costs and (k) any liabilities in respect of Hedging Obligations, and, furthermore, excluding the effects of adjustments pursuant to GAAP resulting from the application of recapitalization accounting or purchase accounting, as the case may be, in relation to the Transaction or any consummated acquisition. Consolidated Depreciation and Amortization Expense means, with respect to any Person for any period, the total amount of depreciation and amortization expense of such Person, including, without duplication, the amortization of deferred financing fees and costs, debt issuance costs, commissions, fees and expenses, capitalized expenditures, customer acquisition costs and incentive payments, conversion costs, contract acquisition costs, amortization of favorable and unfavorable lease assets or liabilities and Capitalized Software Expenditures of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP. Consolidated Interest Expense means, with respect to any Person for any period, without duplication, the sum of: (1) consolidated interest expense in respect of Indebtedness of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) amortization of OID resulting from the issuance of Indebtedness (other than the Initial Term Loans, the Term B Loans and the ABL Facility) at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers, acceptances, (c) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the mark to market valuation of Hedging Obligations or other derivative instruments pursuant to GAAP), (d) the interest component of Capitalized Lease Obligations and (e) net payments, if any, made (less net payments, if any, received), pursuant to interest rate Hedging Obligations with respect to Indebtedness, and excluding (t) any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or, if applicable, purchase accounting in connection with the Transaction or any acquisition, (u) penalties and interest relating to taxes (including, for the avoidance of doubt, accrued interest with respect to payments pursuant to the terms of the Tax Receivable Agreement), (v) any additional interest or liquidated damages with respect to any debt securities for failure to timely comply with registration rights obligations, (w) amortization of OID, deferred financing fees and costs, debt issuance costs, commissions, fees and expenses and discounted liabilities, (x) any expensing of bridge, commitment and other financing fees, (y) commissions, discounts, yield and other fees and charges (including any interest expense) related to any Qualified Securitization Facility and (z) any accretion of accrued interest on discounted liabilities); plus \- 13- Exhibit 10.1"
"(h) the amount of extraordinary, exceptional, nonrecurring or unusual losses (including all fees and expenses relating thereto) or expenses, Transaction Expenses, integration costs, transition costs, pre-opening, opening, consolidation and closing costs for facilities, costs incurred in connection with any strategic initiatives, costs or accruals or reserves incurred in connection with acquisitions after the Closing Date, other business optimization expenses (including costs and expenses relating to business optimization programs and new systems design and implementation costs), restructuring costs and curtailments or modifications to pension and postretirement employee benefit plans; plus (i) the amount of run-rate cost savings and synergies projected by the Borrower in good faith to result from actions either taken or expected to be taken within 18 months after the end of such period (which cost savings and synergies shall be calculated on a Pro Forma Basis as though such cost savings and synergies had been realized on the first day of such period), net of the amount of actual benefits realized from such actions (it is understood and agreed that run-rate means the full recurring benefit that is associated with any action taken or expected to be taken) (which adjustments may be incremental to (but not duplicative of) pro forma cost savings adjustments made pursuant to the definition of Pro Forma Adjustment); provided that (A) such cost savings and synergies are reasonably identifiable and reasonably attributable to the actions specified and reasonably anticipated to result from such actions and (B) amounts added pursuant to this clause (i) and the definition of Pro Forma Adjustment (solely in respect of Pro Forma Adjustments for run rate cost savings and synergies as a result of any Specified Transaction) shall not exceed 25% of EBITDA for such period (calculated prior to giving effect to any adjustment pursuant to this clause (i) and the definition of Pro Forma Adjustment (solely in respect of Pro Forma Adjustments for run rate cost savings and synergies as a result of any Specified Transaction)); plus (j) the amount of loss on sale of receivables, Securitization Assets and related assets to any Securitization Subsidiary in connection with a Qualified Securitization Facility; plus (k) any costs or expenses incurred by Holdings, the Borrower or a Restricted Subsidiary 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 cost or expenses are funded with cash proceeds contributed to the capital of Holdings or net cash proceeds of an issuance of Equity Interest of Holdings (other than Disqualified Stock); plus (l) cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing EBITDA or Consolidated Net Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of EBITDA pursuant to clause (2) below for any previous period and not added back; plus (m) any net loss from disposed or discontinued operations (excluding held-for-sale discontinued operations until actually disposed of); (2) decreased (without duplication) by the following, in each case to the extent included in determining Consolidated Net Income for such period: (a) non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced EBITDA in any prior period; plus (b) any non-cash gains with respect to cash actually received in a prior period unless such cash did not increase EBITDA in such prior period; plus \- 21- Exhibit 10.1"
"Uniform Commercial Code and other applicable Laws, (iv) any lease, license or other agreement, or any property subject to a purchase money security interest, Capitalized Lease Obligation or similar arrangement, in each case to the extent permitted under the Loan Documents, to the extent that a pledge thereof or a security interest therein would violate or invalidate such lease, license or agreement, purchase money, Capitalized Lease or similar arrangement, or create a right of termination in favor of any other party thereto (other than a Borrower or a Guarantor) after giving effect to the applicable anti-assignment clauses of the Uniform Commercial Code and applicable Laws, other than the proceeds and receivables thereof the assignment of which is expressly deemed effective under applicable Laws notwithstanding such prohibition, (v) assets for which a pledge thereof or a security interest therein would result in a material adverse tax consequence as reasonably determined by the Borrower (in consultation with (but without the consent of) the Administrative Agent), (vi) assets for which the Administrative Agent and the Borrower have determined in their reasonable judgment and agreed in writing that the cost of creating or perfecting such pledges or security interests therein would be excessive in view of the benefits to be obtained by the Lenders therefrom, (vii) any intent-to-use trademark application in the United States prior to the filing of a Statement of Use or Amendment to Allege Use with respect thereto, to the extent, if any, that, and solely during the period, if any, in which, the grant, attachment, or enforcement of a security interest therein would impair the validity or enforceability of such intent-to-use trademark application under applicable federal law and (viii) Excluded Equity. Excluded Subsidiary means (a) each Subsidiary listed on Schedule 1.01D hereto, (b) any Subsidiary that is not a wholly owned Subsidiary of the Borrower or a Guarantor, (c) any Domestic Subsidiary of a Foreign Subsidiary that is a CFC, (d) any Domestic Foreign Holding Company, (e) any Restricted Subsidiary acquired pursuant to a Permitted Acquisition that, at the time of such Permitted Acquisition (or other Investment not prohibited hereunder), has assumed secured Indebtedness not incurred in contemplation of such Permitted Acquisition (or other Investment not prohibited hereunder) and each Restricted Subsidiary thereof that guarantees such Indebtedness to the extent such secured Indebtedness prohibits such Subsidiary from becoming a Guarantor, (f) [reserved], (g) any Subsidiary that is prohibited by applicable Law or by any contractual obligation existing on the Closing Date or at the time such Restricted Subsidiary is acquired (and not entered into in contemplation of such acquisition), as applicable, from guaranteeing the Obligations or which would require governmental (including regulatory) consent, approval, license or authorization to provide a Guarantee unless such consent, approval, license or authorization has been received, (h) captive insurance companies, (i) any special purpose entity, (j) any special purpose securitization vehicle (or similar entity), including any Securitization Subsidiary, (k) any Subsidiary that is a not-for-profit organization, (l) any other Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent (confirmed in writing by notice to the Borrower), the cost or other consequences (including any adverse tax consequences) of providing the Guaranty shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (m) each Immaterial Subsidiary and (n) each Unrestricted Subsidiary. Excluded Taxes means, with respect to each Agent and each Lender, (i) any tax on such Agents or Lenders net income or profits (or franchise tax in lieu of such tax on net income or profits) imposed by a jurisdiction as a result of such Agent or Lender being organized or having its principal office or applicable Lending Office located in such jurisdiction or as a result of any other present or former connection between such Agent or Lender and the jurisdiction (including as a result of such Agent or Lender carrying on a trade or business, having a permanent establishment or being a resident for tax purposes in such jurisdiction, other than a connection arising solely from such Agent or Lender having executed, delivered, enforced, 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 Documents), (ii) any branch profits tax under Section 884(a) of the Code, or any similar tax, imposed by any other jurisdiction described in (i), (iii) other than any Foreign Lender becoming a party hereto pursuant to a Borrowers request under Section 3.07, any U.S. federal withholding tax that is imposed on amounts payable to a Foreign Lender pursuant to a Law in effect at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) (or where the Foreign Lender is a partnership for U.S. federal income tax purposes, pursuant to a law in effect on the later of the date on which such Foreign Lender becomes a party hereto or the date on which the affected partner becomes a partner of such Foreign Lender), except, in the case of a Foreign Lender that designates a new Lending Office or is an assignee, to the extent that such Foreign Lender (or its assignor, if any) was entitled, immediately prior to the time of designation of a new Lending Office (or assignment), to receive additional amounts from a Loan Party with respect to such U.S. federal withholding tax pursuant to Section 3.01, (iv) any withholding tax attributable to a Lenders failure to comply with Section 3.01(c), (v) any U.S. \- 28- Exhibit 10.1"
"(2) to the extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise, on the obligations of the type referred to in clause (1) of a third Person (whether or not such items would appear upon the balance sheet of the such obligor or guarantor), other than by endorsement of negotiable instruments for collection in the ordinary course of business; and (3) to the extent not otherwise included, the obligations of the type referred to in clause (1) of a third Person secured by a Lien on any asset owned by such first Person, whether or not such Indebtedness is assumed by such first Person; provided that notwithstanding the foregoing, Indebtedness shall be deemed not to include (a) Contingent Obligations incurred in the ordinary course of business, (b) obligations under or in respect of Qualified Securitization Facilities or (c) any obligations under the Tax Receivable Agreement. Indemnified Liabilities has the meaning specified in Section 10.05. Indemnitees has the meaning specified in Section 10.05. Information has the meaning specified in Section 10.08. Initial Term Commitment means, as to each Lender as of the Closing Date, its obligation to make an Initial Term Loan to the Borrower hereunder on the Closing Date, expressed as an amount representing the maximum principal amount of the Initial Term Loan to be made by such Lender under this Agreement, as such commitment may be (a) reduced from time to time pursuant to Section 2.04 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Lender pursuant to an Assignment and Assumption, (ii) an Incremental Amendment or (iii) a Refinancing Amendment as of the Closing Date. The initial amount of each Lenders Initial Term Commitment as of the Closing Date is set forth on Schedule 2.01 under the caption Initial Term Commitment or, otherwise, in the Assignment and Assumption, Incremental Amendment or Refinancing Amendment pursuant to which such Lender shall have assumed its Initial Term Commitment, as the case may be. The initial aggregate amount of the Initial Term Commitments ison the Closing Date was $655,000,000. Initial Term Lender means, at any time, any Lender that hashad an Initial Term Commitment or an Initial Term Loan at such time. Initial Term Loan means a Loan made pursuant to Section 2.01(a)all Loans outstanding under this Agreement immediately prior to the Amendment No. 1 Effective Date. Intellectual Property Security Agreements has the meaning specified in the Security Agreement. Intercreditor Agreements means the ABL Intercreditor Agreement, the First Lien Intercreditor Agreement, if any, and the Junior Lien Intercreditor Agreement, if any. Interest Payment Date means, (a) as to any Loan of any Class other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the applicable Maturity Date of the Loans of such Class; provided that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan of any Class, the last Business Day of each January, April, July and October and the applicable Maturity Date of the Loans of such Class; provided that the Amendment No. 1 Effective Date shall be an Interest Payment Date for all Initial Term Loans (including Converted Initial Term Loans). 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 on the date one, two, three or six months thereafter (or, with respect to the initial Interest Periods for the Term B Loans, the periods set forth in Section 2.01(a)), or to the extent consented to by each applicable Lender, twelve months (or such period of less than one month as may be consented to by each applicable Lender), as selected by the Borrower in its Committed Loan Notice; provided that: \- 33- Exhibit 10.1"
"filed, recorded or otherwise perfected under applicable Law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed to constitute a Lien. Limited Condition Acquisition means any acquisition, including by way of merger, by the Borrower or one or more of its Restricted Subsidiaries permitted pursuant to this Agreement whose consummation is not conditioned upon the availability of, or on obtaining, third party financing. Loan means an Initial Term Loan, Term B Loan, Incremental Loan, Other Loan, Extended Loan or Replacement Loan. Loan Documents means, collectively, (a) this Agreement, (b) the Notes, (c) any Refinancing Amendment, Incremental Amendment or Extension Offer, (d) the Guaranty and (e) the Collateral Documents. Loan Parties means, collectively, (a) Holdings, (b) Sub Holdco, (c) the Borrower and (d) each other Guarantor. Management Fee Agreement means the management services agreement between certain of the management companies associated with the Investors or their advisors, if applicable, and the Borrower. Management Stockholders means the members of management (and their Controlled Investment Affiliates and Immediate Family Members) of Holdings (or its direct parent) who are holders of Equity Interests of any direct or indirect parent companies of Holdings on the Closing Date or will become holders of such Equity Interests in connection with the Acquisition. Margin Stock has the meaning set forth in Regulation U of the Board of Governors of the United States Federal Reserve System, or any successor thereto. Material Adverse Effect means any event, circumstance or condition that has had a materially adverse effect on (a) the business, operations, assets, liabilities (actual or contingent) or financial condition of Holdings and its Subsidiaries, taken as a whole, (b) the ability of the Loan Parties (taken as a whole) to perform their respective payment obligations under any Loan Document to which any of the Loan Parties is a party or (c) the rights and remedies of the Lenders, the Collateral Agent or the Administrative Agent under any Loan Document. Material Domestic Subsidiary means, (i) on the Closing Date and until the first delivery of financial statements for any period ending after the Closing Date pursuant to Section 6.01(a) or 6.01(b), each of the Borrowers Domestic Subsidiaries and (ii) at any date of determination following delivery of any financial statements for any period ending after the Closing Date pursuant to Section 6.01(a) or 6.01(b), each of Holdings Domestic 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 four fiscal quarter period ending on such date were equal to or greater than 2.5% of the consolidated gross revenues of Holdings and the Restricted Subsidiaries for the period of four fiscal quarters ending on such date, in each case determined in accordance with GAAP; provided that if, at any time and from time to time after the Closing Date, Domestic Subsidiaries that are not Guarantors solely because they do not meet the thresholds set forth in clauses (a) or (b) comprise in the aggregate more than 5.0% of Total Assets as of the end of the most recently ended fiscal quarter of Holdings for which financial statements have been delivered pursuant to Section 6.01 or more than 5.0% of the consolidated gross revenues of Holdings and the Restricted Subsidiaries for the period of four consecutive fiscal quarters ending as of the last day of such fiscal quarter, then the Borrower shall, not later than forty-five (45) days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such longer period as the Administrative Agent may agree in its reasonable discretion), (i) designate in writing to the Administrative Agent one or more of such Domestic Subsidiaries as Material Domestic Subsidiaries to the extent required such that the foregoing condition ceases to be true and (ii) comply with the provisions of Section 6.11 applicable to such Subsidiary. \- 36- Exhibit 10.1"
"other transaction under the Loan Documents where such permissibility was or is (or may have been) contingent on receipt of such amount or utilization of such amount for a specified purpose. Note means a promissory note of the Borrower payable to any Lender or its registered assigns, in substantially the form of Exhibit B hereto with appropriate insertions, evidencing the aggregate Indebtedness of the Borrower to a Lender resulting from any Class of Loans made by such Lender. Obligations means all (a) advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Commitment, Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding, (b) obligations of any Loan Party arising under any Secured Hedge Agreement and (c) Cash Management Obligations. Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents (and any of their Subsidiaries to the extent they have obligations under the Loan Documents) include the obligation (including guarantee obligations) to pay principal, interest, reimbursement obligations, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any Loan Party under any Loan Document. OFAC means the Office of Foreign Assets Control of the U.S. Treasury Department. Offered Amount has the meaning specified in Section 2.03(a)(iv)(D)(1). Offered Discount has the meaning specified in Section 2.03(a)(iv)(D)(1). OID means original issue discount. 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; and (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 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. Other Applicable ECF means Excess Cash Flow or a comparable measure as determined in accordance with the documentation governing Other Applicable Indebtedness. Other Applicable Indebtedness has the meaning specified in Section 2.03(b)(ii)(A). Other Junior Secured Debt means Indebtedness that is permitted by clause (13)(b) of the definition of Permitted Indebtedness to the extent such Indebtedness is secured by a Lien on the Collateral. Other Loans means one or more Classes of Loans that result from a Refinancing Amendment. Other Taxes means any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes or any other excise or property Taxes arising from any payment made under any Loan Document or from the execution, delivery, performance, or enforcement of, or otherwise with respect to, any Loan Document, but not including any Excluded Taxes. Other Term Commitments means one or more Classes of Loan commitments hereunder that result from a Refinancing Amendment. \- 39- Exhibit 10.1"
"acquisition or (b) a Permitted Acquisition (or other Investment not prohibited hereunder), in each case other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such disposition, Permitted Acquisition or other Investment not prohibited hereunder; (8) Indebtedness of Holdings to a Restricted Subsidiary; provided that any such Indebtedness owing to a Restricted Subsidiary that is not a Loan Party is expressly subordinated to the Obligations; provided, further, that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such Indebtedness (except to Holdings or another Restricted Subsidiary or any pledge of such Indebtedness constituting a Permitted Lien (but not foreclosure thereon)) shall be deemed, in each case, to be an incurrence of such Indebtedness not permitted by this clause (8); (9) Indebtedness of a Restricted Subsidiary to Holdings or another Restricted Subsidiary; provided that if a Loan Party incurs such Indebtedness to a Restricted Subsidiary that is not a Loan Party, such Indebtedness is expressly subordinated or pari passu in right of payment to the Obligations; provided, further, that any subsequent transfer of any such Indebtedness (except to Holdings or another Restricted Subsidiary or any pledge of such Indebtedness constituting a Permitted Lien (but not foreclosure thereon)) shall be deemed, in each case, to be an incurrence of such Indebtedness not permitted by this clause (9); (10) shares of Preferred Stock of a Restricted Subsidiary issued to Holdings or another Restricted Subsidiary; provided that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such shares of Preferred Stock (except to Holdings or another of the Restricted Subsidiaries) shall be deemed, in each case, to be an issuance of such shares of Preferred Stock not permitted by this clause (10); (11) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes) (i) entered into to hedge or mitigate risks to which the Borrower or any Subsidiary has actual or anticipated exposure (other than those in respect of shares of capital stock or other equity ownership interests of the Borrower or any Subsidiary), (ii) entered into in order to effectively cap, collar or exchange interest 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 Borrower or any Subsidiary and (iii) entered into to hedge commodities, currencies, general economic conditions, raw materials prices, revenue streams or business performance; (12) obligations in respect of self-insurance and obligations in respect of performance, bid, appeal and surety bonds and performance and completion guarantees and similar obligations provided by Holdings or any Restricted Subsidiary or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business; (13) (a) Indebtedness or Disqualified Stock of Holdings and Indebtedness, Disqualified Stock or Preferred Stock of Holdings or any Restricted Subsidiary in an aggregate principal amount or liquidation preference up to 100.0% of the net cash proceeds received by Holdings since immediately after the Closing Date from the issue or sale of Equity Interests of Holdings or cash contributed to the capital of Holdings (in each case, other than proceeds of Disqualified Stock or sales of Equity Interests to Holdings or any of its Subsidiaries) as determined in accordance with clauses (i)(b) and (i)(c) of the definition of Available Amount to the extent such net cash proceeds or cash are Not Otherwise Applied and (b) Indebtedness or Disqualified Stock of Holdings and Indebtedness, Disqualified Stock or Preferred Stock of Holdings or any Restricted Subsidiary not otherwise permitted hereunder in an aggregate principal amount or liquidation preference which, when aggregated with the principal amount and liquidation preference of all other Indebtedness, Disqualified Stock and Preferred Stock then outstanding and incurred pursuant to this clause (13)(b) and any Refinancing Indebtedness in respect of Indebtedness in respect thereof then outstanding does not at any one time outstanding exceed the greater of (i) $115,000,000 and (ii) 55.0% of EBITDA of Holdings and its Restricted Subsidiaries for the most recently ended Test Period; \- 42- Exhibit 10.1"
"Investments and (b) any guarantee by a Restricted Subsidiary of Indebtedness of Holdings or a Restricted Subsidiary; provided that any Restricted Subsidiary that is not a Loan Party may not, by virtue of this clause (18), guarantee Indebtedness that it would not otherwise be permitted to incur under Section 7.01; (19) Indebtedness consisting of Indebtedness issued by Holdings or any Restricted Subsidiary to future, present or former employees, directors, officers, managers and consultants thereof, their respective Controlled Investment Affiliates or Immediate Family Members, in each case to finance the purchase or redemption of Equity Interests of Holdings or any direct or indirect parent company of Holdings to the extent described in Section 7.06(4); (20) customer deposits and advance payments received in the ordinary course of business from customers for goods purchased in the ordinary course of business; (21) Indebtedness in respect of Bank Products provided by banks or other financial institutions to Holdings and the Restricted Subsidiaries in the ordinary course of business; (22) Indebtedness incurred by a Restricted Subsidiary in connection with bankers acceptances, discounted bills of exchange or the discounting or factoring of receivables for credit management purposes, in each case incurred or undertaken in the ordinary course of business on arms length commercial terms on a recourse basis; (23) Indebtedness of Holdings or any Restricted Subsidiary consisting of (a) the financing of insurance premiums or (b) take-or-pay obligations contained in supply arrangements in each case, incurred in the ordinary course of business; (24) the incurrence of Indebtedness of Foreign Subsidiaries of Holdings in an amount not to exceed at any one time outstanding, the greater of (x) 5.0% of the Foreign Subsidiary Total Assets and (y) 75.0% of the book value of the accounts receivable and inventory of such Foreign Subsidiaries as of the last day of the most recently ended Test Period; (25) Indebtedness, Disqualified Stock or Preferred Stock of a Restricted Subsidiary assumed in connection with (but not incurred in contemplation of) a Permitted Acquisition (or other Investment not prohibited hereunder) so long as either (x) the Consolidated Net Leverage Ratio as of the last day of the most recently ended Test Period, after giving Pro Forma Effect to such Permitted Acquisition (or other Investment not prohibited hereunder), does not exceed 4.6 to 1.0 or (y) the aggregate principal amount of such Indebtedness, together with any Refinancing Indebtedness in respect thereof and all other Indebtedness, Disqualified Stock and/or Preferred Stock incurred or issued under this clause (25), does not exceed $52,500,000; provided that 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 this clause (25) and any Permitted Non-Guarantor Ratio Debt, when taken together with the aggregate principal amount of Refinancing Indebtedness in respect thereof (including successive refinancings), shall not exceed $65,000,000; (26) Indebtedness of Holdings or any Restricted Subsidiary undertaken in connection with cash management and related activities with respect to any Subsidiary or joint venture in the ordinary course of business; (27) Indebtedness representing deferred compensation to employees of the Borrower (or any direct or indirect parent of the Borrower) and its Restricted Subsidiaries incurred in the ordinary course of business; and (28) Indebtedness in respect of Permitted Debt Exchange Notes incurred pursuant to a Permitted Debt Exchange in accordance with Section 2.15 and Credit Agreement Refinancing Indebtedness. Permitted Investments means: \- 44- Exhibit 10.1"
"Submitted Discount has the meaning specified in Section 2.03(a)(iv)(C)(1). Subordinated Indebtedness means any Indebtedness (other than Indebtedness among any of the Loan Parties and their respective Restricted Subsidiaries) of any Loan Party that is by its terms subordinated to the Obligations of such Loan Party arising under the Loans or the Guaranty of the Loans. Subsidiary means, with respect to any Person: (1) any corporation, association, or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50.0% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof; and (2) any partnership, joint venture, limited liability company or similar entity of which; (a) more than 50.0% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise, and (b) such Person or any Restricted Subsidiary of such Person is a controlling general partner or otherwise controls such entity. Subsidiary Guarantor means any Guarantor other than Holdings and Sub Holdco. Successor Borrower has the meaning specified in Section 7.04(d). Successor Holdings has the meaning specified in Section 7.04(e). Supplemental Administrative Agent and Supplemental Administrative Agents have the meanings specified in Section 9.12(a). Syndication Agent means Jefferies Finance LLC. Tax means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction or withholding of any nature and whatever called, imposed by any Governmental Authority, including any interest, additions to tax and penalties applicable thereto. Tax Indemnitee has the meaning set forth in Section 3.01(e). Tax Receivable Agreement means that certain Tax Receivable Agreement substantially in the form attached as Exhibit B to the Acquisition Agreement, as in effect on the Closing Date. Term B Facility means the aggregate principal amount of the Term B Loans of all Term B Lenders outstanding at such time. Term B Lender means the Additional Term B Lender and any Lender that holds a Term B Loan at such time. Term B Loan means a loan funded pursuant to the Additional Term B Commitment or converted from a Converted Initial Term Loan pursuant to Amendment No. 1 and this Agreement as amended thereby. \- 60- Exhibit 10.1"
"the books of the Administrative Agent with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower. Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only(c) on the last day of an Interest Period for such Eurodollar Rate Loan. Upon the occurrence and during the continuation of an Event of Default, the Administrative Agent or the Required Lenders may require by notice to the Borrower that no Loans may be converted to or continued as Eurodollar Rate Loans. The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate(d) 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 when Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in the Administrative Agents prime rate used in determining the Base Rate promptly following the public announcement of such change. After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all(e) continuations of Loans as the same Type, there shall not be more than ten (10) Interest Periods in effect unless otherwise agreed between the Borrower and the Administrative Agent; provided that after the establishment of any new Class of Loans pursuant to an Incremental Amendment, a Refinancing Amendment or Extension, the number of Interest Periods otherwise permitted by this Section 2.02(e) shall increase by three (3) Interest Periods for each applicable Class so established. The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not(f) relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing. Unless the Administrative Agent shall have received notice from a Lender prior to the date of any(g) Borrowing that such Lender will not make available to the Administrative Agent such Lenders Pro Rata Share of such Borrowing, the Administrative Agent may assume that such Lender has made such Pro Rata Share available to the Administrative Agent on the date of such Borrowing in accordance with paragraph (b) above, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If the Administrative Agent shall have so made funds available, then, to the extent that such Lender shall not have made such portion available to the Administrative Agent, each of such Lender and the Borrower severally agrees to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Administrative Agent at (i) in the case of the Borrower, the interest rate applicable at the time to the Loans comprising such Borrowing and (ii) in the case of such Lender, the Overnight Rate plus any administrative, processing, or similar fees customarily charged by the Administrative Agent in accordance with the foregoing. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this Section 2.02(g) shall be conclusive in the absence of manifest error. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lenders Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent. Prepayments.SECTION 2.03. Optional.(a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to(i) time voluntarily prepay Loans in whole or in part without premium or penalty; provided that (1) such notice \- 67- Exhibit 10.1"
"less than $10,000,000 and whole increments of $1,000,000 in excess thereof and (IV) each such solicitation by the Borrower shall remain outstanding through the Discount Range Prepayment Response Date. The Auction Agent will promptly provide each Appropriate Lender with a copy of such Discount Range Prepayment Notice and a form of the Discount Range Prepayment Offer to be submitted by a responding Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., New York time, on the third Business Day after the date of delivery of such notice to such Lenders (the Discount Range Prepayment Response Date). Each Lenders Discount Range Prepayment Offer shall be irrevocable and shall specify a discount to par within the Discount Range (the Submitted Discount) at which such Lender is willing to allow prepayment of any or all of its then outstanding Loans of the applicable tranche or tranches and the maximum aggregate principal amount and tranches of such Lenders Loans (the Submitted Amount) such Lender is willing to have prepaid at the Submitted Discount. Any Lender whose Discount Range Prepayment Offer is not received by the Auction Agent by the Discount Range Prepayment Response Date shall be deemed to have declined to accept a Discounted Loan Prepayment of any of its Loans at any discount to their par value within the Discount Range. (2) The Auction Agent shall review all Discount Range Prepayment Offers received on or before the applicable Discount Range Prepayment Response Date and shall determine (in consultation with such Borrower Party and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) the Applicable Discount and Loans to be prepaid at such Applicable Discount in accordance with this subsection (C). The relevant Borrower Party agrees to accept on the Discount Range Prepayment Response Date all Discount Range Prepayment Offers received by Auction Agent by the Discount Range Prepayment Response Date, in the order from the Submitted Discount that is the largest discount to par to the Submitted Discount that is the smallest discount to par, up to and including the Submitted Discount that is the smallest discount to par within the Discount Range (such Submitted Discount that is the smallest discount to par within the Discount Range being referred to as the Applicable Discount) which yields a Discounted Loan Prepayment in an aggregate principal amount equal to the lower of (I) the Discount Range Prepayment Amount and (II) the sum of all Submitted Amounts. Each Lender that has submitted a Discount Range Prepayment Offer to accept prepayment at a discount to par that is larger than or equal to the Applicable Discount shall be deemed to have irrevocably consented to prepayment of Loans equal to its Submitted Amount (subject to any required proration pursuant to the following subsection (3)) at the Applicable Discount (each such Lender, a Participating Lender). (3) If there is at least one Participating Lender, the relevant Borrower Party will prepay the respective outstanding Loans of each Participating Lender in the aggregate principal amount and of the tranches specified in such Lenders Discount Range Prepayment Offer at the Applicable Discount; provided that if the Submitted Amount by all Participating Lenders offered at a discount to par greater than the Applicable Discount exceeds the Discount Range Prepayment Amount, prepayment of the principal amount of the relevant Loans for those Participating Lenders whose Submitted Discount is a discount to par greater than or equal to the Applicable Discount (the Identified Participating Lenders) shall be made pro rata among the Identified Participating Lenders in accordance with the Submitted Amount of each such Identified Participating Lender and the Auction Agent (in consultation with such Borrower Party and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) will calculate such proration (the Discount Range Proration). The Auction Agent shall promptly, and in any case within five (5) Business Days following the Discount Range Prepayment Response Date, notify (I) the relevant Borrower Party of the respective Lenders responses to such solicitation, the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate principal amount of the Discounted Loan Prepayment and the tranches to be prepaid, (II) each Lender of the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate principal amount and tranches of Loans to be prepaid at the Applicable Discount on such date, (III) each Participating Lender of the aggregate principal amount and tranches of such Lender to be prepaid at the Applicable Discount on such date, and (IV) if applicable, each Identified Participating Lender of the Discount Range Proration. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the relevant Borrower Party and Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Borrower Party shall be due and payable by such Borrower Party on the Discounted Prepayment Effective Date in accordance with subsection (F) below (subject to subsection (J) below). \- 70- Exhibit 10.1"
"In the event that (i) the Borrower or the Administrative Agent has requested that the Lenders consent to a departure or waiver of any provisions of the Loan Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of each Lender, all affected Lenders or all the Lenders or all affected Lenders with respect to a certain Class or Classes of the Loans and (iii) the Required Lenders or Required Facility Lenders, as applicable, have agreed to such consent, waiver or amendment, then any Lender who does not agree to such consent, waiver or amendment shall be deemed a Non-Consenting Lender. 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. Survival. All of the Borrowers obligations under this Article III shall surviveSECTION 3.08. termination of the Aggregate Commitments, repayment of all other Obligations hereunder and resignation of the Administrative Agent. ARTICLE IV Conditions Precedent to Borrowings Conditions to Closing Date. The obligation of each Lender to make a BorrowingSECTION 4.01. hereunder on the Closing Date is subject to satisfaction of the following conditions precedent (or waiver thereof in accordance with Section 10.01): The Administrative Agent (or its counsel) shall have received (i) from each of the Loan Parties a(a) counterpart of this Agreement signed on behalf of such party (if applicable), the Guaranty, the Security Agreement, the ABL Intercreditor Agreement, each Note (to the extent requested at least three (3) Business Days prior to the Closing Date), the Perfection Certificate and each other Loan Document to be executed on the Closing Date, signed on behalf of such party and (ii) a Committed Loan Notice as required by Section 2.02. Subject to the final paragraph of this Section 4.01, the Administrative Agent (or its bailee) shall(b) have received the certificates representing the Equity Interests pledged pursuant to the Security Agreement and the instruments evidencing the debt pledged pursuant to the Secured Agreement, in each case, together with an undated stock or similar power for each such certificate and instrument executed in blank by a duly authorized officer of the pledgor thereof. Subject to the last paragraph of this Section 4.01 and the terms of each applicable Collateral(c) Document, each document (including any Uniform Commercial Code (or similar) financing statement) required by the Collateral Documents 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 itself and the other Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than with respect to Permitted Liens), shall be in proper form for filing, registration or recordation. The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the(d) Closing Date and executed by a Responsible Officer of such Loan Party, 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 the Loan Documents to which it is a party and, in the case of the Borrower, the Borrowings hereunder, and that such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect, (B) identify by name and title and bear the signatures of the Responsible Officer or authorized signatory of such Loan Party authorized to sign the Loan Documents to which it is a party on the Closing Date and (C) certify that attached thereto is a true and complete copy of the certificate or articles of incorporation or organization (or memorandum of association or other equivalent thereof) of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its by-laws or operating, management, partnership or similar agreement (to the extent applicable) and that such documents or agreements have not been amended since the date of the last amendment thereto shown on the certificate of good standing referred to below (except as otherwise \- 91- Exhibit 10.1"
"attached to such certificate and certified therein as being the only amendments thereto as of such date) and (ii) a certificate of good standing (or subsistence) with respect to each Loan Party from the Secretary of State (or similar official) of the state of such Loan Partys organization (to the extent relevant and available in the jurisdiction of organization of such Loan Party). The Administrative Agent shall have received, on behalf of itself and the Lenders on the Closing(e) Date, a customary written opinion of (i) Kirkland & Ellis LLP, special counsel for Holdings, the Borrower and each other Loan Party and (ii) local or other counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.01(e) (other than local counsel opinions relating to the Mortgages which shall be delivered as provided in Section 6.13), in each case (A) dated the Closing Date, (B) addressed to the Administrative Agent and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Loan Documents as the Administrative Agent shall reasonably request. The Administrative Agent shall have received a certificate dated as of the Closing Date in(f) substantially the form of Exhibit K from the Borrowers chief financial officer (or other officer, including treasurer, with equivalent duties) certifying as to the matters set forth therein. All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable(g) out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter, in the case of expenses to the extent invoiced at least three (3) Business Days prior to the Closing Date, shall, upon the initial funding of the Initial Term Loans, have been paid (which amounts may be offset against the proceeds of the Initial Term Loans). Prior to or substantially simultaneously with initial funding of the Loans hereunder, the Acquisition(h) shall be consummated, in all material respects in accordance with the terms of the Acquisition Agreement, without giving effect to any amendments, consents or waivers by you thereto that are materially adverse to the Lenders or the Arrangers, without the prior consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that (a) any aggregate reduction in the purchase price of, or consideration for, the Acquisition is not materially adverse to the interests of the Lenders or the Arrangers, but shall be applied first to reduce the Equity Contribution, so long as the Equity Contribution is not less than forty percent (40%), and thereafter (i) sixty percent (60%) of any such reduction shall be applied to reduce the Term Facility and (ii) 40% of any such reduction shall be applied to reduce the Equity Contribution, (b) any increase in the purchase price of, or consideration for, the Acquisition is not materially adverse to the interests of the Lenders or the Arrangers so long as such increase is funded by the Equity Contribution and (b) any amendment to the definition of Company Material Adverse Effect (as defined in the Acquisition Agreement) is materially adverse to the interests of the Lenders and the Arrangers). The (i) Specified Acquisition Agreement Representations shall be true and correct as required by(i) the terms of the definition thereof and (ii) the Specified Representations shall be true and correct in all material respects; provided that in the case of any Specified Acquisition Agreement Representation or Specified Representation 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, further, that if any of the Specified Representations are qualified by or subject to a material adverse effect, material adverse change or similar term or qualification, the definition thereof shall be a Company Material Adverse Effect for purposes of any such representations and warranties made or deemed made on, or as of, the Closing Date (or any date prior thereto). The Equity Contribution shall have been made or, substantially simultaneously with the initial(j) funding of the Loans hereunder, shall be made (to the extent not otherwise applied to the Transactions). The Arrangers shall have received (i) the Annual Financial Statements, (ii) the Quarterly Financial(k) Statements and (iii) the Pro Forma Financial Statements. \- 92- Exhibit 10.1"
"within ninety (90) days after the end of each fiscal year (or, in the case of the fiscal year ending(c) September 30, 2016, one hundred and twenty (120) days after September 30, 2016), a reasonably detailed consolidated budget for the following fiscal year as customarily prepared by management of Holdings for its internal use (including a projected consolidated balance sheet of Holdings and its Subsidiaries as of the end of the following fiscal year, the related consolidated statements of projected operations or income and projected cash flow and setting forth the material underlying assumptions applicable thereto) (collectively, the Projections), which Projections shall in each case be accompanied by a certificate of a Responsible Officer of the Borrower stating that such Projections have been prepared in good faith on the basis of the assumptions stated therein, which assumptions were believed to be reasonable at the time of preparation of such Projections, it being understood that actual results may vary from such Projections and that such variations may be material; simultaneously with the delivery of each set of consolidated financial statements referred to in(d) Sections 6.01(a) and 6.01(b) above, the related consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements; and annually, at a time mutually agreed with the Administrative Agent that is promptly after the(e) delivery of the information required pursuant to clause (a) above, use commercially reasonable efforts to participate in a conference call for Lenders to discuss the financial condition and results of operations of Holdings and its Subsidiaries for the most recently-ended period for which financial statements have been delivered; provided that, the Lenders shall be permitted to join, to the extent permitted by applicable Laws and the extent permitted under any applicable documentation governing the SPAC, quarterly calls with public equity holders; provided, further, that if the SPAC is holding a conference call open to the public to discuss the financial condition and results of operations of Holdings and its Subsidiaries for the most recently ended measurement period for which financial statements have been delivered pursuant to Sections 6.01(a) or 6.01(b) above, Holdings will not be required to hold a second, separate call for the Lenders so long as the Lenders are provided access to such initial conference call (which requirement can be satisfied by Holdings by posting the conference call information for its quarterly calls with public equity holders in its filings with the SEC) and the ability to ask questions thereon. Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 6.01 may be satisfied with respect to financial information of Holdings and its Subsidiaries by furnishing (A) the applicable financial statements of any direct or indirect parent of Holdings that holds all of the Equity Interests of Holdings or (B) Holdings or such entitys Form 10-K or 10-Q, as applicable, filed with the SEC; provided that, with respect to each of clauses (A) and (B), (i) to the extent such information relates to a parent of Holdings, such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to Holdings and the Restricted Subsidiaries on a standalone basis, on the other hand and (ii) to the extent such information is in lieu of information required to be provided under Section 6.01(a), such materials are accompanied by a report and opinion of PricewaterhouseCoopers LLP or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any going concern or like qualification or exception (other than (x) with respect to, or resulting from, the regularly scheduled maturity of the Loans hereunder or the ABL Facility occurring within one year from the time such opinion is delivered or (y) a prospective default under any financial covenant with respect to the ABL Facility) or any qualification or exception as to the scope of such audit. Any financial statements required to be delivered pursuant to Sections 6.01(a) or (b) shall not be required to contain all purchase accounting adjustments relating to the Transaction to the extent it is not practicable to include any such adjustments in such financial statements. Certificates; Other Information. Deliver to the Administrative Agent for prompt furtherSECTION 6.02. distribution to each Lender: no later than five (5) days after the delivery of the financial statements referred to in Sections(a) 6.01(a) and (b), a duly completed Compliance Certificate signed by either the chief financial officer or the treasurer of the Borrower; \- 99- Exhibit 10.1"
"Borrower qualified to render such letter, which letter states that (i) such transaction is on terms that are substantially no less favorable to the Borrower or such Restricted Subsidiary, as applicable, than would be obtained in a comparable arms-length transaction with a person that is not an Affiliate or (ii) such transaction is fair to the Borrower or such Restricted Subsidiary, as applicable, from a financial point of view. Burdensome Agreements.SECTION 7.09. Enter into or permit to exist any Contractual Obligation (other than this Agreement or any other Loan Document) that prohibits, restricts, imposes any condition on or limits the ability of (a) any Restricted Subsidiary that is not a Loan Party to make Restricted Payments to (directly or indirectly) or to make or repay loans or advances to any Loan Party or to Guarantee the Obligations of any Loan Party under the Loan Documents or (b) any Loan Party to create, incur, assume or suffer to exist Liens on property of such Person for the benefit of the Lenders with respect to the Facility and the Obligations under the Loan Documents; provided that the foregoing clauses (a) and (b) shall not apply to Contractual Obligations that: (x) exist on the Closing Date and (to the extent not otherwise permitted by this Section(i) 7.09) are listed on Schedule 7.09 and (y) to the extent Contractual Obligations permitted by clause (x) are set forth in an agreement evidencing Indebtedness, are set forth in any agreement evidencing any permitted modification, replacement, renewal, extension or refinancing of such Indebtedness so long as such modification, replacement, renewal, extension or refinancing does not expand the scope of such Contractual Obligation; are binding on a Restricted Subsidiary at the time such Restricted Subsidiary first(ii) becomes a Restricted Subsidiary, so long as such Contractual Obligations were not entered into in contemplation of such Person becoming a Restricted Subsidiary; represent Indebtedness of a Restricted Subsidiary that is not a Loan Party that is permitted(iii) by Section 7.03; are restrictions that arise in connection with (including Indebtedness and other agreements(iv) entered into in connection therewith) (x) any Lien permitted by Section 7.01 and relate to the property subject to such Lien or (y) any Disposition permitted by Section 7.05 applicable pending such Disposition solely to the assets subject to such Disposition; are customary provisions in joint venture agreements and other similar agreements(v) applicable to joint ventures permitted under Section 7.02 and applicable solely to such joint venture entered into in the ordinary course of business; are negative pledges and restrictions on Liens in favor of any holder of Indebtedness(vi) permitted under Section 7.03 but solely to the extent any negative pledge relates to the property financed by or the subject of such Indebtedness (and excluding in any event any Indebtedness constituting any Junior Financing) and the proceeds and products thereof and, in the case of the ABL Facility and Credit Agreement Refinancing Indebtedness, permit the Liens securing the Obligations without restriction (subject to the Intercreditor Agreements); are customary restrictions on leases, subleases, licenses or asset sale agreements otherwise(vii) permitted hereby so long as such restrictions relate to the assets subject thereto; are customary provisions restricting subletting or assignment of any lease governing a(viii) leasehold interest of any Restricted Subsidiary; are customary provisions restricting assignment of any agreement entered into in the(ix) ordinary course of business; -117- Exhibit 10.1"
"consisting of Hedging Obligations, termination events or equivalent events pursuant to the terms of such Hedging Obligations and not as a result of any default thereunder by any Loan Party), the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity; provided that (x) this clause (e)(B) shall not apply to secured Indebtedness that becomes due (or requires an offer to purchase) as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness; provided, further, that such failure is unremedied and is not waived by the holders of such Indebtedness prior to any termination of the Commitments or acceleration of the Loans pursuant to Section 8.02; provided that no such event under the ABL Facility shall constitute an Event of Default under this Section 8.01(e) until the acceleration of the Indebtedness under the ABL Facility and the exercise of any remedies by the ABL Administrative Agent in respect of any Collateral and such declaration or exercise has not been rescinded by the lenders under the ABL Facility on or before such date; or Insolvency Proceedings, Etc. Holdings, Sub Holdco, the Borrower or any Material Subsidiary(f) 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, administrator, administrative receiver or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for sixty (60) calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for sixty (60) calendar days, or an order for relief is entered in any such proceeding; or Judgments. There is entered against any Loan Party or any Restricted Subsidiary a final judgment(g) or order for the payment of money in an aggregate amount 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 has not denied or failed to acknowledge coverage thereof) and such judgment or order shall not have been satisfied, vacated, discharged or stayed or bonded pending an appeal for a period of sixty (60) consecutive days; or ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which(h) has resulted or would reasonably be expected to result in liability of any Loan Party which would reasonably be expected to result in a Material Adverse Effect, (ii) any Loan Party or any of their respective ERISA Affiliates fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its Withdrawal Liability under Section 4201 of ERISA under a Multiemployer Plan and a Material Adverse Effect would reasonably be expected to result, or (iii) with respect to a Foreign Plan a termination, withdrawal or noncompliance with applicable Law or plan terms that would reasonably be expected to result in a Material Adverse Effect; or Invalidity of Loan Documents. Any material provision of any Loan Document, at any time after its(i) execution and delivery and for any reason other than as expressly permitted hereunder or thereunder (including as a result of a transaction permitted under Section 7.04 or 7.05) or the satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party contests in writing the validity or enforceability of any provision of any Loan Document; or any Loan Party denies in writing that it has any or further liability or obligation under any Loan Document (other than as a result of repayment in full of the Obligations and termination of the Aggregate Commitments), or purports in writing to revoke or rescind any Loan Document; or Collateral Documents. (i) Any Collateral Document after delivery thereof pursuant to Section(j) 4.01, 6.11 or 6.13 shall for any reason (other than pursuant to the terms hereof or thereof including as a result of a transaction permitted under Section 7.04 or 7.05) cease to create, or any Lien purported to be created by any Collateral Document shall be asserted in writing by any Loan Party not to be, a valid and perfected lien, with the priority required by the Collateral Documents (or other security purported to be created on the applicable Collateral) on and security interest in any material portion of the Collateral purported to be covered thereby, subject to Liens permitted under Section 7.01, except to the extent that any such loss of perfection or priority results from the failure -120- Exhibit 10.1"
"Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans, the Obligations under Secured Hedge Agreements and Cash Management Obligations, ratably among the Secured Parties in proportion to the respective amounts described in this clause Fourth held by them; Fifth, to the payment of all other Obligations of the Loan Parties that are due and payable to the Administrative Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Obligations owing to the Administrative Agent and the other Secured Parties on such date; and Last, the balance, if any, after all of the Obligations have been paid in full, to the Borrower or as otherwise required by Law. ARTICLE IX Administrative Agent and Other Agents Appointment and Authorization of the Administrative Agent.SECTION 9.01. Each Lender hereby irrevocably appoints Bank of America to act on its behalf as the(a) 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 or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article IX (other than Sections 9.09 and 9.11) are solely for the benefit of the Administrative Agent and the Lenders, and the Borrower shall not have rights as a third party beneficiary of any such provision. The Administrative Agent shall also act as the collateral agent under the Loan Documents, and(b) each of the Lenders (including in its capacities as a Lender and a potential Hedge Bank and/or Cash Management Bank) hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of (and to hold any security interest created by the Collateral Documents for and on behalf of or in trust for) such Lender 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 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 Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral 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 Article IX (including Section 9.07, 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 (including the Intercreditor Agreements), as contemplated by and in accordance with the provisions of this Agreement and the Collateral Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Rights as a Lender. Any Person serving as an Agent (including as AdministrativeSECTION 9.02. 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 an Agent and the term Lender or Lenders shall, unless otherwise expressly indicated or unless the context otherwise requires, include each Person serving as an 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 Borrower or any Subsidiary or other Affiliate thereof as if such Person were not an Agent hereunder and without any duty to account therefor to the Lenders. The Lenders acknowledge that, pursuant to such activities, any Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that no Agent shall be under any obligation to provide such information to them. -122- Exhibit 10.1"
"Exculpatory Provisions. Neither the Administrative Agent nor any other Agent shallSECTION 9.03. have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, an Agent (including the Administrative Agent): shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has(a) occurred and is continuing and without limiting the generality of the foregoing, the use of the term agent herein and in the other Loan Documents with reference to any Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law and instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties; shall not have any duty to take any discretionary action or exercise any discretionary powers,(b) except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that such 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 no Agent shall be required to take any action that, in its opinion or the opinion of its counsel, may expose such Agent to liability or that is contrary to any Loan Document or applicable Law; and shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to(c) 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 any Person serving as an Agent or any of its Affiliates in any capacity. 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 Sections 10.01 and 8.02) or (ii) in the absence of its own gross negligence or willful misconduct as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. 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 or a Lender. No Agent-Related Person shall be responsible for or have any duty to ascertain or inquire into (i) any recital, 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 the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral or (vi) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent, or to inspect the properties, books or records of any Loan Party or any Affiliate thereof. Additionally, no Agent-Related Person shall be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Lenders; further, without limiting the generality of the foregoing, no Agent-Related Person shall (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Lender or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Lender. Reliance by the Administrative Agent. The Administrative Agent shall be entitled toSECTION 9.04. rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, 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 not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender -123- Exhibit 10.1"
"and Sections 10.04 and 10.05 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Agent- Related Persons 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. Administrative Agent May File Proofs of Claim. In case of the pendency of anySECTION 9.10. 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 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 Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise: to file and prove a claim for the whole amount of the principal and interest owing and unpaid in(a) respect of the Loans, 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 and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Sections 2.07 and 10.04) allowed in such judicial proceeding; and to collect and receive any monies or other property payable or deliverable on any such claims and(b) to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agents and their respective agents and counsel, and any other amounts due the Administrative Agent under Sections 2.07 and 10.04. Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. Collateral and Guaranty Matters. Each of the Lenders (including in its capacities as aSECTION 9.11. potential Cash Management Bank and a potential Hedge Bank) irrevocably authorizes the Administrative Agent and the Collateral Agent, and each of the Administrative Agent and the Collateral Agent agrees that it will: release any Lien on any property granted to or held by the Administrative Agent or the Collateral(a) Agent under any Loan Document (i) upon termination of the Aggregate Commitments and payment in full of all Obligations (other than (x) obligations and liabilities under Secured Hedge Agreements as to which arrangements satisfactory to the applicable Hedge Bank shall have been made, (y) Cash Management Obligations as to which arrangements satisfactory to the applicable Cash Management Bank shall have been made and (z) contingent indemnification obligations not yet accrued and payable), (ii) at the time the property subject to such Lien is transferred or to be transferred as part of or in connection with any transfer permitted hereunder or under any other Loan Document to any Person other than Holdings, the Borrower or any of its Domestic Subsidiaries that are Guarantors, (iii) subject to Section 10.01, if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders, or (iv) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (c) below; subordinate any Lien on any property granted to or held by the Administrative Agent or the(b) Collateral Agent under any Loan Document to the holder of any Lien on such property that is a Permitted Lien pursuant to clauses (1) (other than with respect to any self-insurance arrangements), (4) (solely to the extent securing any cash or Cash Equivalents or other property that does not constitute Collateral), (5) (6) (to the extent related to Indebtedness permitted to be incurred pursuant to clause (5) of the definition of Permitted Indebtedness), (9), (11) (solely to the extent securing any segregated cash or Cash Equivalents or other property that does not constitute Collateral), (17) (solely to the extent relating to the foregoing clause (9)), (18), (25) (to the extent related to -126- Exhibit 10.1"
"die, become incapable of acting, resign or be removed, all the rights, powers, privileges and duties of such Supplemental Administrative Agent, to the extent permitted by Law, shall vest in and be exercised by the Administrative Agent until the appointment of a new Supplemental Administrative Agent. Intercreditor Agreements. The Administrative Agent and the Collateral Agent areSECTION 9.13. authorized to enter into the Intercreditor Agreements, and the parties hereto acknowledge that each Intercreditor Agreement is binding upon them. Each Lender (a) hereby consents to the subordination of the Liens on the ABL First Lien Collateral securing the Obligations on the terms set forth in the ABL Intercreditor Agreement and the Lien priority provisions of the other Intercreditor Agreements, (b) hereby agrees that it will be bound by and will take no actions contrary to the provisions of the Intercreditor Agreements and (c) hereby authorizes and instructs the Administrative Agent and Collateral Agent to enter into the Intercreditor Agreements and to subject the Liens on the Collateral securing the Obligations to the provisions thereof. Each Term B Lender, by its execution and delivery of Amendment No. 1 and its making of Term B Loans on the Amendment No. 1 Effective Date (including the conversion of any Converted Initial Term Loans of such Term B Lender into Term B Loans in accordance with Section 2.01(a)), hereby (a) confirms its agreement to the foregoing provisions of this Section 9.13 and (b) pursuant to the ABL Intercreditor Agreement, agrees to be bound by the terms of the ABL Intercreditor Agreement as a Term Loan Secured Party (as defined in the ABL Intercreditor Agreement). Secured Cash Management Agreements and Secured Hedge Agreements. Except asSECTION 9.14. otherwise expressly set forth herein or in any Guaranty or any Collateral Document, no Cash Management Bank or Hedge Bank that obtains the benefits of Section 8.03, any Guaranty or any Collateral by virtue of the provisions hereof or of any 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) 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 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 Cash Management Bank or Hedge Bank, as the case may be. Withholding Tax. To the extent required by any applicable Laws, the AdministrativeSECTION 9.15. Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. Without limiting or expanding the provisions of Section 3.01, each Lender shall indemnify and hold harmless the Administrative Agent against, and shall make payable in respect thereof within 10 days after demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the IRS or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold Tax from amounts paid to or for the account of such Lender for any reason (including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding Tax ineffective). A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this Section 9.15. The agreements in this Section 9.15 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations. ARTICLE X Miscellaneous Amendments, Etc. Except as otherwise set forth in this Agreement, no amendment orSECTION 10.01. waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and -128- Exhibit 10.1"
"non-public information with respect to the Borrower or its securities for purposes of United States Federal or state securities laws. Reliance by the Administrative Agent. The Administrative Agent and the Lenders shall be entitled(f) to rely and act upon any notices (including telephonic Committed Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify the Administrative Agent each Lender and the Agent-Related Persons of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording. No Waiver; Cumulative Remedies. No failure by any Lender or the AdministrativeSECTION 10.03. Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document 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. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by Law. Attorney Costs and Expenses. The Borrower agrees (a) if the Closing Date occurs, toSECTION 10.04. pay or reimburse the Administrative Agent and the Arrangers for all reasonable and documented or invoiced out-of-pocket costs and expenses associated with the syndication of the Loans and the preparation, execution and delivery, administration, amendment, modification, waiver and/or enforcement of this Agreement and the other Loan Documents and any amendment, waiver, consent or other modification of the provisions hereof and thereof (whether or not the transactions contemplated thereby are consummated), and the consummation and administration of the transactions contemplated hereby and thereby, including all Attorney Costs of Cahill Gordon & Reindel LLP and any other counsel retained with the Borrowers consent (such consent not to be unreasonably withheld or delayed)) and, if reasonably necessary, one local and foreign counsel in each relevant jurisdiction material to the interests of the Lenders taken as a whole, and (b) to pay or reimburse the Administrative Agent and the Lenders for all reasonable and documented out-of-pocket costs and expenses incurred in connection with the enforcement of any rights or remedies under this Agreement or the other Loan Documents (including all costs and expenses incurred in connection with any workout or restructuring in respect of the Loans, all such costs and expenses incurred during any legal proceeding, including any proceeding under any Debtor Relief Law, and including all Attorney Costs of one counsel to the Administrative Agent and the Lenders taken as a whole (and, if reasonably necessary, one local counsel in any relevant material jurisdiction and, in the event of any conflict of interest, one additional counsel in each relevant jurisdiction to each group of affected Lenders similarly situated taken as a whole)). The agreements in this Section 10.04 shall survive the termination of the Aggregate Commitments and repayment of all other Obligations. All amounts due under this Section 10.04 shall be paid promptly following receipt by the Borrower of an invoice relating thereto setting forth such expenses in reasonable detail. If any Loan Party fails to pay when due any costs, expenses or other amounts payable by it hereunder or under any Loan Document, such amount may be paid on behalf of such Loan Party by the Administrative Agent in its sole discretion. Indemnification by the Borrower. The Borrower shall indemnify and hold harmless theSECTION 10.05. Agents, each Lender, the Arrangers and their respective Affiliates, and the directors, officers, employees, counsel, agents, advisors and other representatives or successors and assigns of the foregoing (collectively the Indemnitees) from and against any and all losses, liabilities, damages, claims, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (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, of another firm of counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature -132- Exhibit 10.1"
"Successors and Assigns.SECTION 10.07. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties(a) hereto and their respective successors and registered assigns permitted hereby, except that neither Holdings nor the Borrower may, except as permitted by Section 7.04, 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 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, (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section or (iv) to an SPC in accordance with the provisions of subsection (g) of this Section (and any other attempted assignment or transfer by any party hereto (other than to any Disqualified Lender) 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 Agent-Related Persons of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a(b) 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 that any such assignment shall be subject to the following conditions: Minimum Amounts.(i) (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, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and (B) in any case not described in Section 10.07(b)(i)(A) of this Section, the aggregate amount of the Commitment or, 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 $1,000,000 unless each of the Administrative Agent and, unless the Borrowers consent for such assignment is not required, or such consent has been deemed received, in each case, in accordance with Section 10.07(b)(iii)(A), the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met. Proportionate Amounts. Each partial assignment shall be made as an assignment of a(ii) proportionate part of all the assigning Lenders rights and obligations under this Agreement with respect to the Loans or the Commitment assigned. Required Consents. No consent shall be required for any assignment except to the extent(iii) required by subsection (b)(i)(B) of this Section and, in addition: (A) the consent of the Borrower (such consent not to be unreasonably withheld) shall be required unless (1) an Event of Default under Section 8.01(a) or, solely with respect to the Borrower, Section 8.01(f), 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 such consent shall be deemed to have been given if the Borrower has not responded within ten (10) Business Days after notice by the Administrative Agent; and -134- Exhibit 10.1"
"(d)Solvency Certificate. The Administrative Agent shall have received a solvency certificate substantially in the same form as delivered in connection with the Closing Date, which shall be dated as of the First Amendment Effective Date and duly executed and delivered by a Responsible Officer of the Borrower and which demonstrates that the Borrower and its Restricted Subsidiaries, on a consolidated basis, are and, after giving effect to the GLM Transactions and the other transactions contemplated hereby and thereby, will be and will continue to be, Solvent."
"(ii)The GLM Equity Contribution shall have been or, substantially concurrently with the borrowing hereunder shall be, consummated. As used in this Amendment, the GLM Equity Contribution shall mean the contribution to the purchase price for the GLM Acquisition of funds derived from (x) cash and cash equivalents on the balance sheet of Holdings and its Restricted Subsidiaries and (y) the cash the Sponsor has contributed to Holdings. The aggregate amount of the GLM Equity Contribution shall be equal to not less than 30% of the total consideration payable in respect of the GLM Acquisition, including rollover equity in GLM converted into Capital Stock of Holdings or any direct or indirect parent company of Holdings."
"(h)Financial Statements; Pro Forma Financial Statements. The First Amendment Incremental Term Lenders shall have received (i) the audited consolidated balance sheets of George Little Management, LLC for each of the fiscal years ended September 30, 2012 and September 30, 2013 and the related consolidated statements of operations, members equity and cash flows of George Little Management, LLC for each of the fiscal years ended September 30, 2012 and September 30, 2013, and (ii) a pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Borrower as of and for the twelve-month period ending on September 30, 2013, prepared after giving effect to the GLM Transactions as if the GLM Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income), which need not include adjustments for purchase accounting (including adjustments of the type contemplated by Financial Accounting Standards Board Accounting Standards Codification 805, Business Combinations (formerly SFAS 141R))."
"Documents 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 Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than Permitted Priority Liens), shall have been executed and delivered to the Administrative Agent in proper form for filing, registration or recordation."
"Section 5.02Further Assurances. Each of the Borrower, Holdings and the Subsidiary Guarantors hereby agrees to do such further acts and things, and to execute and deliver such additional conveyances, assignments, agreements and instruments, as the Administrative Agent may at any time reasonably request in connection with the administration and enforcement of this Amendment or in order better to assure and confirm unto the Administrative Agent its rights and remedies hereunder."
"Section 6.07Counterparts. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. The delivery of an executed signature page of this Amendment or any document or instrument delivered in connection herewith by facsimile transmission or .pdf shall be as effective as the delivery of a manually executed counterpart of this Amendment or such other document or instrument, as applicable. A set of the copies of this Amendment signed by all the parties shall be lodged with the Borrower and the Administrative Agent."
7.01 | Liens | 114 ---|---|--- 7.02 | Investments | 114 7.03 | Indebtedness; Disqualified Stock | 114 7.04 | Fundamental Changes | 114 7.05 | Dispositions | 115 7.06 | Restricted Payments | 115 7.07 | Prepayments of Indebtedness | 117 7.08 | Change in Nature of Business | 117 7.09 | Transactions with Affiliates | 117 7.10 | Burdensome Agreements | 120 7.11 | Use of Proceeds | 121 7.12 | Amendment of Material Documents | 121 7.13 | Fiscal Year/Quarter | 121 7.14 | Consolidated Fixed Charge Coverage Ratio | 121 ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES
 | Form of ---|---  |  |   | A | Committed Loan Notice  | B | Swing Line Loan Notice  | C-1 | Revolving Note  | C-2 | Swing Line Note  | D | Assignment and Assumption  | E | Borrowing Base Certificate  | F | Solvency Certificate  | G | U.S. Tax Compliance Certificate  | H | Intercreditor Agreement  | I | Facility Guaranty  | J | Security Agreement 
"Acquisition means, with respect to any Person (a) a purchase of a Controlling interest in the Equity Interests of any other Person, (b) a purchase or other acquisition of all or substantially all of the assets or properties of another Person or of any business unit of another Person or (c)any merger or consolidation of such Person with any other Person or other transaction or series of transactions resulting in the acquisition of all or substantially all of the assets, or a Controlling interest in the Equity Interests, of any Person, in each case, for which the aggregate consideration payable in connection with such acquisition or group of transactions which are part of a common plan equals or exceeds $10,000,000 (excluding any consideration paid with Equity Interests)."
"Appraised Value means with respect to Eligible Inventory and Eligible Frac Iron, the appraised orderly liquidation value, net of costs and expenses to be incurred in connection with any such liquidation, which value is expressed as a percentage of Cost of such Eligible Inventory and Eligible Frac Iron as set forth in the Loan Parties books and records, which value shall be determined from time to time by the most recent appraisal undertaken by an independent appraiser engaged by the Administrative Agent."
"Cash Collateral Account means a deposit or securities account established by one or more of the Loan Parties with Bank of America in the name of the Collateral Agent (or as the Collateral Agent shall otherwise direct) and under the sole and exclusive dominion and control of the Collateral Agent, in which deposits are required to be made in accordance with Section 2.03(g) or 8.02(b)."
"(b)the sale, lease, transfer, conveyance or other disposition (other than by way of merger, consolidation or other business combination transaction), in one or a series of related transactions, of all or substantially all of the assets of the Parent and its Restricted Subsidiaries taken as a whole to a Person, other than a Restricted Subsidiary or any Permitted Holder; or"
"Commercial Letter of Credit means any letter of credit or similar instrument (including, without limitation, Bankers Acceptances) issued for the purpose of providing the primary payment mechanism in connection with the purchase of any materials, goods or services by a Loan Party in the ordinary course of business of such Loan Party."
"Consolidated Interest Charges means, for any Measurement Period, the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, including, without limitation, all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers acceptance financing and net costs under Swap Contracts or agreements governing hedging obligations, but excluding any non-cash or deferred interest or Swap Contract or hedging obligation costs and (b) the portion of rent expense with respect to such period under Capital Lease Obligations that is treated as interest in accordance with GAAP, in each case of or by the Keane Group for the most recently completed Measurement Period, all as determined on a Consolidated basis in accordance with GAAP."
"Covenant Trigger Event means any of the following events: (a) the occurrence and continuance of any Event of Default, (b) if no Loan or Letter of Credit (other than any Letter of Credit that has been Cash Collateralized) is outstanding, Liquidity is less than the greater of (i) 15% of the Loan Cap and (ii) $17,500,000 at any time or (c) if any Loan or Letter of Credit (other than any Letter of Credit that has been Cash Collateralized) is outstanding, Excess Availability is less than the greater of (i) 15% of the Loan Cap and (ii) $17,500,000 at any time. For purposes of this Agreement, the occurrence of a Covenant Trigger Event shall be deemed continuing (i) so long as such Event of Default is continuing and has not been cured or waived, (ii) if the Covenant Trigger Event arises as a result of clause (b) of the immediately preceding sentence, until the date Liquidity shall have been at least equal to the greater of (x) 15% of the Loan Cap and (y) $17,500,000 for thirty (30) consecutive days and/or (iii) if the Covenant Trigger Event arises as a result of clause (c) of the immediately preceding sentence, until the date Excess Availability shall have been at least equal to the greater of (x) 15% of the Loan Cap and (y) $17,500,000 for thirty (30) consecutive days, in which case a Covenant Trigger Event shall no longer be deemed to be continuing for purposes of this Agreement. The termination of a Covenant Trigger Event as provided herein shall in no way limit, waive or delay the occurrence of a subsequent Covenant Trigger Event in the event that the conditions set forth in this definition again arise."
"DDA means each checking, savings or other demand deposit account maintained by any of the Loan Parties. All funds in each DDA shall be conclusively presumed to be Collateral and proceeds of Collateral and the Agents and the Lenders shall have no duty to inquire as to the source of the amounts on deposit in any DDA."
"Debtor Relief Laws means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally."
"Dominion Trigger Event means any of the following events: (a) the occurrence and continuance of any Event of Default, (b) if no Loan or Letter of Credit (other than any Letter of Credit that has been Cash Collateralized) is outstanding, Liquidity is less than the greater of (x) 15.0% of the Loan Cap and (y) $17,500,000, or (c) if any Loan or Letter of Credit (other than any Letter of Credit that has been Cash Collateralized) is outstanding, Excess Availability is less than the greater of (x) 15.0% of the Loan Cap and (y) $17,500,000, in the case of each of clauses (a), (b) and (c), for five (5) consecutive Business Days. For purposes of this Agreement, the occurrence of a Dominion Trigger Event shall be deemed continuing (i) so long as such Event of Default is continuing and has not been cured or waived, (ii) if the Dominion Trigger Event arises as a result of clause (b) of the immediately preceding sentence, until the date Liquidity shall have been at least equal to the greater of (x) 15.0% of the Loan Cap and (y) $17,500,000, and/or (iii) if the Dominion Trigger Event arises as a result of clause (c) of the immediately preceding sentence, until the date Excess Availability shall have been at least equal to the greater of (x) 15.0% of the Loan Cap and (y) $17,500,000, in the case of each of clauses (i), (ii) and (iii), for thirty (30) consecutive days, in which case a Dominion Trigger Event shall no longer be deemed to be continuing for purposes of this Agreement. The termination of a Dominion Trigger Event as provided herein shall in no way limit, waive or delay the occurrence of a subsequent Dominion Trigger Event in the event that the conditions set forth in this definition again arise."
"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."
"(p)when aggregated with other Accounts owing by any such Customer, it exceeds (i) with respect to any such Customer that is rated (or whose parent is rated) at least Baa3 by Moodys or BBB- by Standard and Poors, 35% of the aggregate Eligible Billed Accounts and Eligible Unbilled Accounts, (ii) with respect to Chevron Corporation, Exxon Mobil Corporation or Royal Dutch Shell plc, 45% of the aggregate Eligible Billed Accounts and Eligible Unbilled Accounts or (iii) with respect to any other such Customer, 20% of the aggregate Eligible Billed Accounts and Eligible Unbilled Accounts; provided that, any such Account shall only be excluded to the extent of such excess."
"(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;"
"(q)when aggregated with other Accounts owing by any such Customer, it exceeds (i) with respect to any such Customer that is rated (or whose parent is rated) at least Baa3 by Moodys or BBB- by Standard and Poors, 35% of the aggregate Eligible Billed Accounts and Eligible Unbilled Accounts, (ii) with respect to Chevron Corporation, Exxon Mobil Corporation or Royal Dutch Shell plc, 45% of the aggregate Eligible Billed Accounts and Eligible Unbilled Accounts or (iii) with respect to any other such Customer, 20% of the aggregate Eligible Billed Accounts and Eligible Unbilled Accounts; provided that, any such Account shall only be excluded to the extent of such excess."
"Environmental Laws means any and all applicable Federal, state, local, and foreign statutes, laws, rule of common law, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution, the protection of the environment or the release of any materials into the Environment, including those related to Hazardous Materials, air emissions and waste water discharges."
"Excluded Swap Obligation means, 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 (determined after giving to any keepwell, support or other agreement for the benefit of such Guarantor and any and all guarantees of such Guarantors Swap Obligations by other Loan Parties) at the time such guarantee or grant of a security interest by such Guarantor becomes 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 excluded in accordance with the first sentence of this definition."
"Excluded Taxes means, with respect to the Agents, any Lender, any L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document, (a) taxes imposed on or measured by such recipients net income (however denominated), franchise taxes and branch profits taxes, in each case imposed by a jurisdiction as a result of such recipient being organized or having its principal office located in or, in the case of any Lender, having its applicable Lending Office located in, such jurisdiction or as a result of any other present or former connection between such recipient and such jurisdiction (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, and/or enforced, any Loan Documents, or sold or assigned any interest in any Loan, Letter of Credit or Loan Document), (b) in the case of a Lender (other than any Lender becoming a party hereto pursuant to a request by any Loan Party under Section 10.13), any U.S. federal withholding tax that is imposed on amounts payable to such Lender pursuant to a law in effect at the time such Lender becomes a party hereto (or designates a new Lending Office), except to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the designation of a new Lending Office (or assignment),"
"Existing ABL Credit Agreement means that certain Amended and Restated Revolving Credit and Security Agreement, dated August 8, 2014, by and among KGH Intermediate Holdco I, LLC, KGH Intermediate Holdco II, LLC, Keane Frac, LP, KS Drilling, LLC, Keane Frac ND, LLC, Keane Frac TX, LLC, and PNC Bank, National Association, as Agent (as defined therein) for certain lenders, as amended by that certain (a) First Amendment to Amended and Restated Revolving Credit and Security Agreement, dated as of December 22, 2014, (b) Second Amendment to Amended and Restated Revolving Credit and Security Agreement, dated as of April 7, 2015, and (c) Third Amendment to Amended and Restated Revolving Credit and Security Agreement, dated as of March 16, 2016."
"L/C Issuer means each Lender with an L/C Issuer Sublimit in its capacity as an issuer of Letters of Credit hereunder, or any successor or additional issuer of Letters of Credit hereunder (which successor or additional issuer may only be a Lender or Affiliate of a Lender which has agreed in writing to be an L/C Issuer and which is selected by the Lead Borrower and acceptable to the Administrative Agent in its reasonable discretion, in which case all or any portion of any existing L/C Issuers L/C Issuer Sublimit (as agreed between the Lead Borrower, the Administrative Agent and such new L/C Issuer) may be transferred to such new L/C Issuer). Each L/C Issuer may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the applicable 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."
"Liquidation means the exercise by the Administrative Agent or Collateral Agent of those rights and remedies accorded to such Agents under the Loan Documents and applicable Laws as a creditor of the Loan Parties with respect to the realization on the Collateral, including (after the occurrence and during the continuation of an Event of Default) the conduct by the Loan Parties acting with the consent of the Administrative Agent, of any public, private or going-out-of-business or other similar sale or any other disposition of the Collateral for the purpose of liquidating the Collateral. Derivations of the word Liquidation (such as Liquidate) are used with like meaning in this Agreement."
"Material Adverse Effect means (a) a material adverse change in, or a material adverse effect upon, the operations, business, assets, properties, liabilities, or financial condition of the Loan Parties and their Subsidiaries, taken as a whole; (b) a material impairment of the rights and remedies of the Agent or any Lender under the Loan Documents, or of the ability of the Loan Parties, taken as a whole, to perform their obligations under the Loan Documents; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against the Loan Parties, taken as a whole, of this Agreement or the Security Documents."
"Other Taxes means all present or future stamp or documentary Taxes or any other excise or property Taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery, enforcement, registration of, or otherwise with respect to, this Agreement or any other Loan Document, excluding, however, any such amounts imposed as a result of an assignment (Assignment Taxes), but only to the extent such Assignment Taxes (a) do not relate to an assignment made at the request of a Borrower pursuant to Section 10.13 and (b) are imposed as a result of a present or former connection between the assignor or assignee and the jurisdiction imposing such Tax (other than a connection arising from such assignor or assignee 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 Loan Document)."
"Outstanding Amount means (a) with respect to Committed Loans and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Committed Loans and Swing Line Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the 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 Borrowers of Unreimbursed Amounts."
"Payment Conditions means, at the time of determination with respect to any specified transaction or payment (including a Restricted Payment), that (a) no Event of Default then exists or would arise as a result of entering into such transaction or the making of such payment, and (b) either (i)(A) before and after giving effect to such transaction or payment, Excess Availability equals or exceeds the greater of (x) fifteen percent (15.0%) of the Loan Cap and (y) $17,500,000 (or in the case of a Restricted Payment, the greater of (xx) seventeen and a half percent (17.5%) of the Loan Cap and (yy) $20,000,000) as at such date and on a pro forma basis for the preceding ninety (90) calendar day period, and (B) the pro forma Consolidated Fixed Charge Coverage Ratio calculated for the most recently ended Measurement Period hereof, after giving effect to such transaction or payment equals or exceeds 1.00:1.00 or (ii) after the earlier of twelve (12) months from the Effective Date and such time as the Consolidated Fixed Charge Coverage Ratio at the end of any two consecutive Measurement Periods following the Effective Date has been at least 1.00:1.00, Excess Availability equals or exceeds the greater of (x) 20% of the Loan Cap and (y) $26,250,000 (or, in the case of a Restricted Payment, the greater of (xx) 22.5% of the Loan Cap and (yy) $30,000,000) as at such date and on a pro forma basis for the preceding ninety (90) calendar day period. Prior to undertaking any transaction or payment which is subject to the Payment Conditions, the Loan Parties shall deliver to the Administrative Agent an officers certificate (1) confirming that no Event of Default then exists or would arise as a result of entering into such transaction or the making of such payment and (2) setting forth calculations showing satisfaction of the conditions contained in clause (b) above which shall be reasonably satisfactory to the Administrative Agent."
"Pension Plan means any employee pension benefit plan (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by a Borrower or any ERISA Affiliate or to which a Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years."
"Permitted Discretion means the Administrative Agents good faith credit judgment acting in accordance with the Administrative Agents past practices for asset-based lending in the oilfield services industry and based upon any factor or circumstance which it reasonably believes in good faith: (a) will or is reasonably likely to adversely affect the value of the Collateral, the enforceability or priority of the Collateral Agents Liens thereon in favor of the Credit Parties or the amount which the Collateral Agent and the Credit Parties would likely receive (after giving consideration to delays in payment and costs of enforcement) in the liquidation of such Collateral; (b) that any collateral report or financial information delivered to the Administrative Agent by or on behalf of the Loan Parties is incomplete, inaccurate or misleading in any material respect; (c) will or is reasonably likely to materially increase the likelihood of a bankruptcy, reorganization or other insolvency proceeding involving any Loan Party; or (d) will or is reasonably likely to create a Default or Event of Default. Notwithstanding the foregoing, it shall not be within the Permitted Discretion for the Administrative Agent to establish Reserves which are duplicative of each other whether or not such reserves fall under more than one reserve category."
"(a)Dispositions of (i) inventory or Frac Iron in the ordinary course of business, (ii) goods held for sale in the ordinary course of business and (iii) other assets (including allowing any registrations or any applications for registration of any immaterial Intellectual Property to lapse or become abandoned) (other than ABL Priority Collateral) having Fair Market Value not exceeding $25,000,000 in the aggregate per Fiscal Year, plus any amounts permitted but not used in prior Fiscal Years for any such Disposition; provided that in no event shall the aggregate Fair Market Value of Dispositions made pursuant to this clause (a) exceed $50,000,000 in any Fiscal Year;"
"(b)Indebtedness among the Parent and its Restricted Subsidiaries; provided that all such Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent; provided, further, that any subsequent issuance or transfer of any Equity Interests or any other event which 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;"
"(c)without duplication of Indebtedness described in clause (f) below, purchase money Indebtedness of any Loan Party incurred after the Effective Date to finance the acquisition, lease, construction or improvement of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and Permitted Refinancings thereof, provided, however, that (i) the aggregate principal amount of Indebtedness permitted by this clause (c) shall not exceed the greater of $50,000,000 and 10% of the Total Assets at the time of incurrence, (ii) such Indebtedness is incurred prior to or within two hundred and seventy days (270) after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), (iii) such Indebtedness does not exceed the cost of acquisition, lease, construction or improvement of such fixed or capital assets, and (iv) such assets shall not be included in the Borrowing Base;"
"(d)obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising under any Swap Contract, provided that 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 fluctuations in commodity prices, interest rates or foreign exchange rates, and not for purposes of speculation or taking a market view;"
"(f)Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted Investment, provided that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Maturity Date, has a final maturity which extends beyond the Maturity Date, and is subordinated to the Obligations on terms reasonably acceptable to the Agents; provided, further, that any such Indebtedness constituting Earn- Out Obligations is paid within 30 days after such amount becomes due;"
"(g)Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder), which Indebtedness is existing at the time such Person becomes a Restricted Subsidiary of a Loan Party (other than Indebtedness incurred solely in contemplation of such Persons becoming a Restricted Subsidiary of a Loan Party) and Permitted Refinancings thereof; provided that the aggregate principal amount of Indebtedness permitted to be incurred pursuant to this clause (g) shall not exceed the sum of (i) $50,000,000 and (ii) if, at the time such Person becomes a Restricted Subsidiary of a Loan Party, Consolidated EBITDA for the four Fiscal Quarter period most recently ended is in excess of Consolidated EBITDA for such period as set forth in the Model dated December 15, 2016 delivered by Keane Group to the Administrative Agent, $50,000,000; provided that, (x) solely with respect to any such Indebtedness incurred pursuant to subclause (ii) above, such Indebtedness shall not require annual amortization payments in excess of 2.5% of the aggregate original principal amount of such Indebtedness, and (y) with respect to any such Indebtedness incurred pursuant to subclauses (i) and (ii) above, such Indebtedness shall mature no earlier than the six-month after the Maturity Date;"
"(w)to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and"
(vi)readily marketable direct obligations issued by any state of the United States of America or any political subdivision thereof having one of the two highest rating categories obtainable from either Moodys or S&P (or reasonably equivalent ratings of another internationally recognized ratings agency) in each case with maturities not exceeding two years from the date of acquisition;
"provided, however, that notwithstanding the foregoing, after the occurrence and during the continuance of a Dominion Trigger Event, (i) no new Investments of the type specified in clause (a) shall be permitted unless either (A) no Loans are then outstanding, or (B) the Investment is a temporary Investment pending expiration of an Interest Period for a LIBOR Rate Loan, the proceeds of which Investment will be applied to the Obligations after the expiration of such Interest Period, and (ii) to the extent not already subject to the perfected security interest of the Collateral Agent under the Security Documents, such Investments are pledged to the Collateral Agent as additional collateral for the Obligations pursuant to such agreements as may be reasonably required by the Collateral Agent."
"Permitted Refinancing means, with respect to any Person, any modification, refinancing, refunding, renewal, replacement or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) plus accrued and unpaid interest thereon of the Indebtedness so modified, refinanced, refunded, renewed, replaced or extended except by an amount equal to unpaid accrued interest and premium (including any customary tender premiums) thereon plus other amounts paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal, replacement or extension and by an amount equal to any existing commitments unutilized thereunder, (b) such modification, refinancing, refunding, renewal, replacement or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended (measured at the time such modification, refinancing, refunding, renewal, replacement or extension occurs), (c) at the time thereof, no Event of Default shall have occurred and be continuing, (d) to the extent such Indebtedness being modified, refinanced, refunded, renewed, replaced or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal, replacement or extension is subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended; provided that a certificate of a Responsible Officer delivered to the Administrative Agent stating that the Lead Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement and (e) such modification, refinancing, refunding, renewal, replacement or extension is incurred by the Person who is the obligor or guarantor of, and shall not have greater guarantees or security than, the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended (except in the case of the Designated Senior Indebtedness)."
"Responsible Officer means the chief executive officer, president, chief financial officer, vice president, treasurer or assistant treasurer, or secretary or assistant secretary of a Loan Party (or any individual performing substantially similar functions regardless of his or her title) or any of the other individuals designated in writing to the Administrative Agent by an existing Responsible Officer of a Loan Party as an authorized signatory of any certificate or other document to be delivered hereunder. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party."
"Solvent and Solvency mean, with respect to any Person on a particular date, that on such date (a) at fair valuation, all of the properties and assets of such Person are greater than the sum of the debts, including contingent liabilities, of such Person, (b) the present fair saleable value of the properties and assets of such Person will be greater than the amount that would be required to pay the probable liability of such Person on its debts and other liabilities, subordinated, contingent or otherwise, as they become absolute and matured, (c) such Person is able to realize upon its properties and assets and pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (d) such Person does not intend to, and does not believe that it will, incur debts beyond such Persons ability to pay as such debts mature, and (e) such Person is not engaged in a business or a transaction, and is not about to engage in a business or transaction, for which such Persons properties and assets would constitute unreasonably small capital after giving due consideration to the prevailing practices in the industry in which such Person is engaged. The amount of all guarantees at any time shall be computed as the amount that, in light of all the facts and circumstances existing at the time, can reasonably be expected to become an actual or matured liability."
"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."
"Total Net Debt shall mean, as of any date of determination, (a) the aggregate principal amount of Indebtedness of the Parent on a Consolidated basis outstanding on such date, in an amount that would be reflected on a balance sheet prepared as of such date on a Consolidated basis in accordance with GAAP, minus (b) the aggregate amount of cash and Cash Equivalents (other than restricted cash and Cash Equivalents), not to exceed $100,000,000, in each case, included on the consolidated balance sheet of the Parent and its Restricted Subsidiaries as of such date; provided, that Indebtedness in respect of Swap Contracts (if any) shall only be included for purposes of clause(a)above to the extent (and only in the amount of any excess by which) the aggregate Swap Termination Value in respect of such Swap Contracts exceeds $5,000,000."
"Unintentional Overadvance means an Overadvance which, to the Administrative Agents knowledge, did not constitute an Overadvance when made but which has become an Overadvance resulting from changed circumstances beyond the control of the Credit Parties, including, without limitation, a reduction in the Appraised Value of property or assets included in the Borrowing Base or misrepresentation by the Loan Parties."
"thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory 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 or supplemented from time to time, and (vi) 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."
"1.04Rounding. Any financial ratios required to be maintained by the Loan Parties 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)."
"(h)The Administrative Agent, the Lenders, the Swing Line Lender and each L/C Issuer shall have no obligation to make any Loan or to provide any Letter of Credit if an Overadvance would result. The Administrative Agent may, in its discretion, make Permitted Overadvances without the consent of the Borrowers, the Lenders,"
"(ii)Promptly after receipt of any Letter of Credit Application, the applicable L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Lead Borrower and, if not, the applicable L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the applicable L/C Issuer has received written notice from any Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, the applicable L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the applicable Borrower or enter into the applicable amendment, as the case may be, in each case in accordance with the applicable L/C Issuers usual and customary business practices. Immediately upon the issuance or amendment of each Letter of Credit, each Lender shall be deemed to (without any further action), and hereby irrevocably and unconditionally agrees to, purchase from the applicable L/C Issuer, without recourse or warranty, a risk participation in such Letter of Credit in an amount equal to the product of such Lenders Applicable Percentage times the Stated Amount of such Letter of Credit. Upon any change in the Commitments under this Agreement, it is hereby agreed that with respect to all L/C Obligations, there shall be an automatic adjustment to the participations hereby created to reflect the new Applicable Percentages of the assigning and assignee Lenders."
"(i)At any time after an L/C Issuer has made a payment under any Letter of Credit and has received from any Lender such Lenders L/C Advance in respect of such payment in accordance with Section 2.03(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 Borrowers or otherwise, including proceeds of cash collateral applied thereto by the Administrative Agent pursuant to Section 2.03(g)), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lenders L/C Advance was outstanding) in the same funds as those received by the Administrative Agent."
"(f)Role of L/C Issuer. Each Lender and the Borrowers agree that, in paying any drawing under a Letter of Credit, no L/C Issuer shall have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of any L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of any L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct as determined in a final non-appealable judgment of a court of competent jurisdiction; (iii) 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 or any error in interpretation of technical terms; or (iv) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The Borrowers hereby assume all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Borrowers pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of any L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of any L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, the Borrowers may have a claim against an L/C Issuer, and such L/C Issuer may be liable to the Borrowers, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrowers which the Borrowers prove were caused by such L/C Issuers willful misconduct or gross negligence or such L/C Issuers willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, each L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary (or such L/C Issuer may 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), and such L/C Issuer shall not 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."
"(a)The Swing Line. Subject to the terms and conditions set forth herein, the Swing Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make loans (each such loan, a Swing Line Loan) to the Borrowers 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 the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Committed Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lenders Commitment; provided, however, that after giving effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed Loan Cap, and (ii) the aggregate Outstanding Amount of the Committed Loans of any Lender at such time, plus such Lenders Applicable Percentage of the Outstanding Amount of all L/C Obligations at such time, plus such Lenders Applicable Percentage of the Outstanding Amount of all Swing Line Loans at such time shall not exceed such Lenders Commitment, and provided, further, that the Borrowers shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan, and providedfurther that the Swing Line Lender shall not be obligated to make any Swing Line Loan at any time when any Lender is at such time a Defaulting Lender hereunder, unless the Swing Line Lender has entered into satisfactory arrangements with the Borrowers or such Lender to eliminate the Swing Line Lenders risk with respect to such Lender. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall bear interest only at a rate based on the Base Rate. Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lenders Applicable Percentage multipliedby the amount of such Swing Line Loan. The Swing Line Lender shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the Swing Line Lender in connection with Swing Line Loans made by it or proposed to be made by it as if the term Administrative Agent as used in Article IX included the Swing Line Lender with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Swing Line Lender."
"(f)Prepayments made pursuant to Section 2.05(c), (d) and (e) above, first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Committed Loans, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, fourth, the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Committed Loans"
"(a)The Borrowers may, upon irrevocable notice from the Lead Borrower to the Administrative Agent, terminate the Commitments of any Class, the Letter of Credit Sublimit or the Swing Line Sublimit or from time to time permanently reduce the Commitments of any Class, the Letter of Credit Sublimit or the Swing Line Sublimit; provided that (i) any such notice shall be received by the Administrative Agent not later than 12:00 p.m. three (3) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $1,000,000 or any whole multiple of $500,000 in excess thereof, (iii) the Borrowers shall not terminate or reduce (A) the Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings would exceed the Aggregate Commitments, (B) the Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder would exceed the Letter of Credit Sublimit, and (C) the Swing Line Sublimit if, after giving effect thereto, and to any concurrent payments hereunder, the Outstanding Amount of Swing Line Loans hereunder would exceed the Swing Line Sublimit."
"(a)Subject to the provisions of Section 2.08(b) below, (i) each LIBOR Rate Loan shall bear interest, on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Adjusted LIBOR Rate for such Interest Period plus the Applicable Margin for such Class of Loans; (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 Margin; and (iii) each Swing Line 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 Margin."
"(b)(i) If any amount payable under any Loan Document is not paid when due (after the expiration of any applicable grace periods), whether at stated maturity, by acceleration or otherwise, 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 Law while such Event of Default is continuing."
"(b)Lender Elections to Increase. Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment 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 increase its Commitment."
"(d)Effective Date and Allocations. If the Aggregate Commitments are increased in accordance with this Section, the Administrative Agent, in consultation with the Lead Borrower, shall determine the effective date (the Increase Effective Date) and the final allocation of such increase. The Administrative Agent shall promptly notify the Lead Borrower and the Lenders and other Eligible Assignees being allocated an Additional Commitment (each, an Additional Commitment Lender) of the final allocation of such increase and the Increase Effective Date and on the Increase Effective Date (i) the Aggregate Commitments under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Additional Commitments, and (ii) Schedule 2.01 shall be deemed modified, without further action, to reflect the revised Commitments and Applicable Percentages of the Lenders."
"(ii)the Applicable Margins for the Loans made pursuant to the Additional Commitments shall be determined by the Lead Borrower and the Additional Commitment Lenders; provided that in the event that the all-in- yield for any Loans made pursuant to Additional Commitments is greater than that applicable to the Loans made pursuant to the initial Commitments, then the Applicable Margins for the Loans made pursuant to the initial Commitments shall be increased to the extent necessary so that the all-in-yield for the Loans made pursuant to the Additional Commitments are equal to the all-in- yield for the Loans made pursuant to the initial Commitments; provided, further, that in determining the all-in-yield, (x) original issue discount or upfront fees payable by the Lead Borrower to the Lenders in the primary syndication of any Class of Commitments shall be excluded and (y) customary arrangement or commitment fees payable to the Arrangers (or their respective Affiliates) or to one or more arrangers (or their respective Affiliates) of the Additional Commitments shall be excluded to the extent they are not shared with all Lenders; and"
"(d)Notwithstanding anything to the contrary contained in this Agreement, (A) on any date on which any Class of Existing Commitments is converted or exchanged to extend the related scheduled Maturity Date(s) in accordance with paragraph (a) above (an Extension Date), in the case of the Existing Commitments of each Extending Lender under any Specified Existing Commitment Class, the aggregate principal amount of such Existing Commitments shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Commitments so converted or exchanged by such Lender on such date (or by any greater amount as may be agreed by the Borrowers and such Lender), and such Extended Commitments shall be established as a separate Class of revolving credit commitments from the Specified Existing Commitment Class and from any other Existing Commitments (together with any other Extended Commitments so established on such date) and (B) if, on any Extension Date, any Existing Loans of any Extending Lender are outstanding under the Specified Existing Commitment Class, such Loans (and any related participations) shall be deemed to be converted or exchanged to Extended Loans (and related participations) of the applicable Class in the same proportion as such Extended Commitments of such Class to Extending Lenders Specified Existing Commitment Class."
"(d)Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes or Other Taxes by any Loan Party to a Governmental Authority, the Lead Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent."
"becomes obsolete or inaccurate in any respect, such Lender shall deliver promptly to the Lead Borrower and the Administrative Agent updated or other appropriate documentation or promptly notify the Lead Borrower and the Administrative Agent in writing of its legal ineligibility to do so. In addition, any Lender, if requested by the Lead Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Law or reasonably requested by the Lead Borrower or the Administrative Agent as will enable the Lead Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements."
"(b)Capital Requirements. If any Lender or L/C Issuer determines that any Change in Law affecting such Lender or L/C Issuer or any Lending Office of such Lender or such Lenders or L/C Issuers holding company, if any, regarding capital or liquidity requirements has had the effect of reducing the rate of return on such Lenders or L/C Issuers capital or on the capital of such Lenders or L/C Issuers holding company, if any, as a consequence of this Agreement, the 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 such L/C Issuer, to a level below that which such Lender or L/C Issuer or such Lenders or L/C Issuers holding company could have achieved but for such Change in Law (taking into consideration such Lenders or L/C Issuers policies and the policies of such Lenders or L/C Issuers holding company with respect to capital adequacy), then from time to time upon the request of such Lender or L/C Issuer and the delivery of the certificate contemplated by Section 3.04(c), the Borrowers will pay to such Lender or L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or L/C Issuer or such Lenders or L/C Issuers holding company, as the case may be, for any such reduction suffered."
"(c)Certificates for Reimbursement. A certificate of a Lender or L/C Issuer specifying the Change in Law and setting forth the amount or amounts necessary to compensate such Lender or L/C Issuer or its holding company, as the case may be, and the method for calculating such amount or amounts as specified in subsection (a) or (b) of this Section and delivered to the Lead Borrower and the Administrative Agent shall be conclusive absent manifest error. The Borrowers shall pay such Lender or L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof."
"(d)Delay in Requests. Failure or delay on the part of any Lender or L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lenders or L/C Issuers right to demand such compensation, provided that the Loan Parties shall not be required to compensate a Lender or L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than six months prior to the date that such Lender or L/C Issuer, as the case may be, notifies the Lead Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lenders or L/C Issuers intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof)."
"For purposes of calculating amounts payable by the Borrowers to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each LIBOR Rate Loan made by it at the LIBOR Rate for such Loan by a matching deposit or other borrowing in the London interbank market for a comparable amount and for a comparable period, whether or not such LIBOR Rate Loan was in fact so funded. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section and setting forth in reasonable detail the manner in which such amount or amounts was determined shall be delivered to the Lead Borrower and shall be conclusive absent manifest error."
"(b)Each Borrower recognizes that credit available to it hereunder is in excess of and on better terms than it otherwise could obtain on and for its own account and that one of the reasons therefor is its joining in the credit facility contemplated herein with all other Borrowers. Consequently, each Borrower hereby assumes and agrees to discharge all Obligations of each of the other Borrowers."
"(iv)copies of each Loan Partys Organization Documents (or a certification that such Organization Documents have not been amended since the date such Organization Documents were previously delivered to the Agents under the Existing Credit Agreements) and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction would not reasonably be expected to have a Material Adverse Effect;"
"(d)(A) All representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except where qualified by materiality, in which case such representations and warranties that are qualified by materiality shall be true and correct in all respects) with the same effect as though such representations and warranties had been made on and as of the date hereof, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and accurate on and as of such earlier date) and (B) no Default or Event of Default shall exist or have occurred and be continuing on and as of the date of the making of such Loan and after giving effect thereto."
"(b)The Unaudited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present in all material respects the financial condition of the Parent and its Subsidiaries, as applicable, as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments."
"(d)The Consolidated forecasted balance sheets and statements of income and cash flows of the Keane Group delivered pursuant to Section 6.01(c) were prepared in good faith on the basis of the assumptions stated therein, which assumptions were reasonable in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Loan Parties good faith estimate of its future financial performance (it being understood that such forecasted financial information is subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties, that no assurance is given that any particular forecasts will be realized, that actual results may differ and that such differences may be material)."
"(c)Schedule 7.02 sets forth a complete and accurate list of all Investments of the type described in clause (b) of the definition of Permitted Investments held by any Loan Party or any Subsidiary of a Loan Party on the Effective Date, showing as of the Effective Date the amount, obligor or issuer and maturity, if any, thereof."
"(d)Schedule 7.03 sets forth a complete and accurate list of all Material Indebtedness of the type described in clause (a) of the definition of Permitted Indebtedness of each Loan Party or any Restricted Subsidiary of a Loan Party on the Effective Date, showing as of the Effective Date the amount, obligor or issuer and maturity thereof."
"(a)Except for any matters that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, no Loan Party or any Restricted Subsidiary thereof or any of their respective facilities or operations (i) is in violation of any Environmental Law or has failed to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) is subject to any Environmental Liability, (iii) is in receipt of any pending notice or claim with respect to any Environmental Liability or (iv) is aware of any basis for any Environmental Liability; and"
"5.12Subsidiaries; Equity Interests. As of the Effective Date: (a) the Loan Parties have no Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.12, which Schedule sets forth, as of the Effective Date, the legal name, jurisdiction of incorporation or formation and outstanding Equity Interests of each such Restricted Subsidiary, (b) all of the outstanding Equity Interests in such Restricted Subsidiaries have been validly issued, are fully paid and non-assessable, and are owned by a Loan Party (or a Restricted Subsidiary of a Loan Party) in the amounts specified on Part (a) of Schedule 5.12 free and clear of all Liens except for Liens in favor of the Collateral Agent under the Loan Documents and Permitted Encumbrances which do not have priority over the Liens of the Collateral Agent. Except as set forth in Schedule 5.12, as of the Effective Date, there are no outstanding rights to purchase any Equity Interests in any Restricted Subsidiary. As of the Effective Date, the Loan Parties have no equity investments in any other Person other than those specifically disclosed in Schedule 7.02. The copies of the Organization Documents of each Loan Party and each amendment thereto provided pursuant to Section 4.01 are true and correct copies of each such document as of the Effective Date, each of which is valid and in full force and effect as of the Effective Date."
"5.16Intellectual Property; Licenses, Etc. Except, in each case, as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, the Loan Parties and their Subsidiaries own, or possess the right to use, all of the Intellectual Property that is reasonably necessary for the operation of their respective businesses as currently conducted. Except, in each case, as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, the operation of their respective businesses by any Loan Party or any Subsidiary does not violate, dilute, or misappropriate and has not, in the past three (3) years infringed, any Intellectual Property rights held by any other Person, and except as disclosed in Schedule 5.16, no claim or litigation regarding any of the foregoing is pending or, to the knowledge of the Lead Borrower, threatened in writing against any Loan Party or Restricted Subsidiary, which, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect."
"5.20Deposit Accounts. Annexed hereto as Schedule 5.20 is a list of all DDAs maintained by the Loan Parties as of the Effective Date, which Schedule includes, with respect to each DDA (i) the name and address of the depository; (ii) the account number(s) maintained with such depository; (iii) a contact person at such depository, and (iv) the identification of each Blocked Account Bank."
"5.25Anti-Money Laundering. No Borrower or Guarantor, none of their Subsidiaries and, to the knowledge of senior management of each Borrower or Guarantor, none of its Affiliates and none of its respective officers, directors, brokers or agents, acting in their capacity on behalf of such Borrower or Guarantor or such Subsidiary or Affiliate (i) has violated or is in violation of any applicable anti-money laundering law or (ii) has engaged or engages in any transaction, investment, undertaking or activity that conceals the identity, source or destination of the proceeds from any category of offenses designated in any applicable law, regulation or other binding measure implementing the Forty Recommendations and Nine Special Recommendations published by the Organization for Economic Cooperation and Developments Financial Action Task Force on Money Laundering."
"5.27Insurance. The properties of the Lead Borrower and its Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of the Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Lead Borrower or the applicable Subsidiary operates."
"(b)as soon as available, but in any event within 50 days (or such earlier date on which the Parent is required (after giving effect to any extensions granted by the SEC) to make any public filing of such information) after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Parent, (x) a Consolidated balance sheet of the Keane Group as at the end of such Fiscal Quarter and the related Consolidated statements of income or operations, Shareholders Equity and cash flows for such Fiscal Quarter and for the portion of the Parents Fiscal Year then ended, setting forth in each case in comparative form the figures for (A) the corresponding Fiscal Quarter of the previous Fiscal Year and (B) the corresponding portion of the previous Fiscal Year, all in reasonable detail, such Consolidated statements to be certified by a Responsible Officer of the Parent as fairly presenting in all material respects the financial condition, results of operations, Shareholders Equity and cash flows of the Keane"
"Notwithstanding the foregoing, the obligations in paragraphs (a), (b) and (c) of this Section 6.01 may be satisfied with respect to financial information of the Keane Group by furnishing (A) the Parents (or any direct or indirect parent thereof, as applicable) Form 10-K or 10-Q, as applicable, filed with the SEC; provided that, (i) such information is accompanied by consolidated information that explains in reasonable detail the differences between the information relating to the Parent (or a parent of the Parent, if such information related to such a parent), on the one hand, and the information relating to the Lead Borrower and its Restricted Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under this Section 6.01, such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with GAAP and consistent with the requirements of Section 6.01."
"(b)(i) On or prior to the fifteenth (15th) day of each Fiscal Month (or, if such day is not a Business Day, on the next succeeding Business Day), a Borrowing Base Certificate showing the Borrowing Base as of the close of business as of the last day of the immediately preceding Fiscal Month, each Borrowing Base Certificate to be certified as complete and correct by a Responsible Officer of the Lead Borrower; provided that at any time that an Accelerated Borrowing Base Delivery Event has occurred and is continuing, such Borrowing Base Certificate shall be delivered on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day), as of the close of business on the immediately preceding Saturday and (ii) within three (3) Business Days after the consummation of the Disposition of any Collateral included in the Borrowing Base having a Fair Market Value in excess of $7,500,000, a Borrowing Base Certificate showing the Borrowing Base after giving effect to the consummation of such Disposition;"
"(f)at any time there are no Loans outstanding and the aggregate amount of L/C Obligations (excluding any L/C Obligations that have been Cash Collateralized) is less than or equal to $2,500,000, on or prior to the fifteenth (15th) day, of each Fiscal Month (or, if such day is not a Business Day, on the next succeeding Business Day), a statement in form reasonably acceptable to the Administrative Agent detailing the aggregate amount of unrestricted cash and Cash Equivalents on hand of the Parent and its Subsidiaries as of the close of business as of the last day of the immediately preceding Fiscal Month, each statement to be certified as complete and correct by a Responsible Officer of the Lead Borrower; provided that at any time upon the Administrative Agents request (in its sole discretion), such statement shall be delivered weekly or more frequently."
"6.08Compliance with Laws. Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a)(i) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves have been set aside and maintained by the Loan Parties in accordance with GAAP and (ii) such contest effectively suspends enforcement of the contested Laws; or (b) the failure to comply therewith would not reasonably be expected to have a Material Adverse Effect."
"(a)Maintain proper books of record and account, in which full, true and correct entries in all material respects in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of the Keane Group; and (ii) maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over the Keane Group."
"(a)Permit representatives and independent contractors of the Administrative Agent and Collateral Agent to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and Registered Public Accounting Firm at such reasonable times during normal business hours upon reasonable advance notice to the Lead Borrower; provided, however, that unless an Event of Default has occurred and is continuing, only one visit in any calendar year shall be permitted and such visit shall be at the Loan Parties expense."
"(d)so long as no Default exists or would result therefrom, a Borrower may merge with any other Person; provided that (i) such Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not a Borrower (any such Person, the Successor Company), (A) the Successor Company shall be an entity organized or existing under the Laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Borrower under this Agreement and the other Loan Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Agent, (C) each Loan Party, unless it is the other party to such merger or consolidation, shall have confirmed that its obligations under the Loan Documents, including the Guarantee, shall continue to apply to the Successor Companys obligations under the Loan Agreements, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Security Documents confirmed that its obligations thereunder shall apply to the Successor Companys obligations under the Loan Documents, (E) such Borrower shall have delivered to the Administrative Agent an officers certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Security Document does not conflict with this Agreement and (F) 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; provided further that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Borrower under this Agreement;"
"(e)so long as no Default exists or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that the continuing or surviving Person shall be a Restricted Subsidiary or a Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 and Section 6.14; and"
"7.07Prepayments of Indebtedness. Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner any Indebtedness (other than the Obligations or Indebtedness between Loan Parties), or make any payment in violation of any subordination terms of any Subordinated Indebtedness, except (a) payments in respect of the Obligations, (b) regularly scheduled or mandatory repayments, repurchases, redemptions or defeasances of Permitted Indebtedness (other than Subordinated Indebtedness), (c) repayments and prepayments of Subordinated Indebtedness in accordance with and subject to the subordination terms thereof, (d) voluntary prepayments, repurchases, redemptions, defeasances or other satisfaction of Permitted Indebtedness as long as the Payment Conditions are satisfied, (e) Permitted Refinancings of any Indebtedness, (f) the conversion of any Indebtedness to Equity Interests (other than Disqualified Stock) of the Parent or any of its Subsidiaries or any other direct or indirect parent of a Borrower or the repayment of Indebtedness with the proceeds of an issuance of Equity Interests (other than Disqualified Stock or Preferred Stock) of the Parent or any other direct or indirect parent of the Lead Borrower, and (g) repayments and prepayments of Indebtedness incurred pursuant to clauses (b), (c), (d), (e), (f), (j), (k), (n), (o), (p), (q), (v) (to the extent made by any Foreign Subsidiary), (s), or (w) of the definition of Permitted Indebtedness."
"(i)on fair and reasonable terms that are not materially less favorable to the Parent and its Restricted Subsidiaries, taken as a whole, as would be obtainable by the Parent or its Restricted Subsidiaries with a Person other than an Affiliate at the time of such transaction (or, if earlier, at the time such transaction is contractually agreed),"
" (v)any agreement (other than with Sponsor) as in effect as of the Effective Date and set forth on Schedule 7.09 or any amendment thereto (so long as any such agreement together with all amendments thereto, taken as a whole, is not more disadvantageous to the Lenders in any material respect than the original agreement as in effect on the Effective Date) or any transaction contemplated thereby;"
"(ix)transactions between the Loan Parties or any of their Restricted Subsidiaries and any Person that is an Affiliate solely due to the fact that a director of such Person is also a director of the Parent or any other direct or indirect parent of a Borrower; provided, however, that such director abstains from voting as a director of such Loan Party or such direct or indirect parent of such Loan Party, as the case may be, on any matter involving such other Person;"
"(iii) any payments required to be made pursuant to an agreement (other than with Sponsor) as in effect as of the Effective Date and listed on Schedule 7.09, or any amendment thereto (so long as any such agreement together with all amendments thereto, taken as a whole, is not more disadvantageous to the Lenders in any material respect than the original agreement as in effect on the Effective Date) or any transaction contemplated thereby;"
"(viii) sales and purchase arrangements, joint purchasing arrangements and other service agreements in the ordinary course of business between, on the one hand, the Parent and its Restricted Subsidiaries and, on the other hand, any Person under common control with the Parent and its Subsidiaries, for the sale and purchase, at cost, of inventory, equipment and supplies, and leases between such Persons and the Parent or any of its Restricted Subsidiaries and are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;"
"(f)Insolvency Proceedings, Etc. Any Loan Party 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; or a proceeding shall be commenced or a petition filed, without the application or consent of such Person, seeking or requesting the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed and the appointment continues undischarged, undismissed or unstayed for 60 calendar days or an order or decree approving or ordering any of the foregoing shall be entered; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or"
"(i)ERISA. (i) An ERISA Event shall occur with respect to a Pension Plan or Multiemployer Plan which has resulted in or would reasonably be expected to result in liability of any Loan Party under Title IV of ERISA to a Pension Plan, Multiemployer Plan or the PBGC which would be reasonably likely to result in a Material Adverse Effect, or (ii) a Loan Party or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan which would be reasonably likely to result in a Material Adverse Effect; or"
"of any Loan Document or seeks to avoid, limit or otherwise adversely affect any Lien purported to be created under any Security Document; or (ii) any Lien purported to be created under any Security Document shall cease to be (other than pursuant to the terms thereof), or shall be asserted by any Loan Party or any other Person not to be, a valid and perfected Lien on any Collateral (other than an immaterial portion of the Collateral not of the type included in the Borrowing Base), with the priority required by the applicable Security Document; or"
"(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 Loan Parties;"
"provided, however, that upon the entry of an order for relief (or similar order) with respect to any Loan Party or any Restricted Subsidiary thereof under any Debtor Relief Laws, the obligation of each Lender to make Loans and any obligation of each L/C Issuer 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 Loan Parties 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."
"Second, to payment of that portion of the Obligations (excluding the Other Liabilities) constituting indemnities, expenses and other amounts (other than principal, interest and fees) payable to the Lenders and each L/C Issuer (including amounts payable under Section 10.04 to the respective Lenders and each L/C Issuer and amounts payable under Article III), ratably among them in proportion to the amounts described in this clause Second payable to them;"
"(a)Notwithstanding anything to the contrary contained in this Article VIII, in the event that the Borrowers fail to comply with the requirements of Section 7.14 with respect to any Measurement Period for which such covenant is required to be tested, until the expiration of the 10th day subsequent to the later of (x) the first day of the applicable Covenant Trigger Event or (y) the date the certificate calculating the Consolidated Fixed Charge Coverage Ratio for such Measurement Period is required to be delivered pursuant to Section 6.01(b) (the Cure Expiration Date), the Parent shall have the right to issue Permitted Cure Securities for cash or otherwise receive cash contributions (collectively, the Cure Right), and upon receipt by the Parent of such cash in return for its Permitted Cure Securities, (the Cure Amount) pursuant to the exercise by the Parent of such Cure Right, the Consolidated Fixed Charge Coverage Ratio under Section 7.14 shall be recalculated giving effect to the following pro forma adjustments:"
"9.04Reliance by Agents. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including, but not limited to, 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. Each 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 not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance 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 an L/C Issuer unless the Administrative Agent shall have received written notice to the contrary from such Lender or an L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. Each Agent may consult with legal counsel (who may be counsel for any Loan Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts."
"9.08No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Bookrunners, Arrangers, Syndication Agents or the Co-Documentation Agents 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, Collateral Agent, a Lender or an L/C Issuer hereunder."
"Upon request by any Agent at any time, the Applicable Lenders will confirm in writing such 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 Facility Guaranty and each other Loan Document pursuant to this Section 9.10. In each case as specified in this Section 9.10, the Agents will, at the Loan Parties expense, 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 Security Documents or to subordinate its interest in such item, or to release such Guarantor from its obligations under the Facility Guaranty and each other applicable Loan Document, in each case in accordance with the terms of the Loan Documents and this Section 9.10."
"(v)if all or any portion of such Defaulting Lenders Applicable Percentage of the L/C Obligations are neither reallocated nor Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable L/C Issuers or any other Lender hereunder, all Letter of Credit Fees payable under Section 2.03(i) with respect to such Defaulting Lenders Applicable Percentage thereof shall be payable to the applicable L/C Issuers until and to the extent that such L/C Obligations are reallocated and/or Cash Collateralized; and"
"(e)So long as a Lender is a Defaulting Lender, each L/C Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lenders then outstanding Applicable Percentage of the L/C Obligations will be one hundred percent (100%) covered by the Commitments of the non-Defaulting Lenders in accordance with Section 9.16(d)(i) and/or cash collateral will be provided by the Borrowers in accordance with Section 2.03(g), and participating interests in any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 9.16(d)(i) (and such Defaulting Lender shall not participate therein)."
"10.01Amendments, 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 signed by the Administrative Agent (at the direction of the Required Lenders) and the Required Lenders (or the Administrative Agent, with the consent of the Required Lenders), and the Lead Borrower or the"
"(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 telecopier 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:"
"(e)Reliance by Agents, L/C Issuer and Lenders. The Agents, each L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of the Loan Parties even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Loan Parties shall indemnify the Agents, each L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Loan Parties. All telephonic notices to and other telephonic communications with the Agents may be recorded by the Agents, and each of the parties hereto hereby consents to such recording."
"of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (C) the enforcement or protection of their rights in connection with this Agreement or the Loan Documents or efforts to preserve, protect, collect, or enforce the Collateral or in connection with any proceeding under any Debtor Relief Laws, or (D) any workout, restructuring or negotiations in respect of any Obligations, and (b) with respect to each L/C Issuer and its Affiliates, all reasonable out-of-pocket expenses incurred in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder; and (c) all reasonable and documented out-of-pocket expenses incurred by the Credit Parties who are not the Agents, an L/C Issuer or any Affiliate of any of them, after the occurrence and during the continuance of an Event of Default, provided that such Credit Parties shall be entitled to reimbursement for no more than one counsel representing all such Credit Parties (absent a conflict of interest in which case the Credit Parties may engage and be reimbursed for additional counsel)."
"jurisdiction or (z) result from a cause of action brought by an Indemnitee against any other Indemnitee (other than (i) claims against an Indemnitee in its capacity or fulfilling its role as an Agent, L/C Issuer, Swing Line Lender or an arranger or a similar role and (ii) claims resulting directly or indirectly from acts or omissions of any Loan Party; provided that, the Loan Parties obligation with respect to fees and expenses of counsel, shall be limited to the reasonable and reasonably documented fees, disbursements and other charges of out-of-pocket fees and legal expenses of one firm of counsel for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction and one firm of special counsel, in each case for all Indemnitees (and, in the case of an actual or perceived conflict of interest where the Indemnitee affected by such conflict informs the Lead Borrower of such conflict and thereafter, retains its own counsel, of another firm of counsel for such affected Indemnitee))."
"(c)Waiver of Consequential Damages, Etc. To the fullest extent permitted by Law, the Loan Parties shall not assert, and hereby waive, 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; provided that the foregoing shall not limit any Loan Partys indemnity obligations to the extent special, indirect, consequential or punitive damages are included in any third party claim in connection with which such Indemnitee is entitled to receive indemnification hereunder. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee 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 other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction."
"10.05Payments Set Aside. To the extent that any payment by or on behalf of the Loan Parties is made to any Credit Party, or any Credit Party 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 such Credit Party 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 the Agents upon demand its Applicable Percentage (without duplication) of any amount so recovered from or repaid by the Agents, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders and each L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement."
"(A)the consent of the Lead Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default pursuant to Sections 8.01(a), (f) or (g) 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 with respect to such Lender;"
"(h)Resignation as L/C Issuer or Swing Line Lender after Assignment or Resignation. Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns all of its Commitment and Loans pursuant to subsection (b) above, or resigns as Agent in accordance with the provisions of Section 9.06, Bank of America may, (i) upon 30 days notice to the Lead Borrower and the Lenders, resign as L/C Issuer and/or (ii) with duplication of any notice required under Section 9.06, upon 30 days notice to the Lead Borrower, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer or Swing Line Lender, the Lead Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no failure by the Lead Borrower to appoint any such successor shall affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case may be. If Bank of America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of an 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 Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) 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 the case may be, and (b) 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 Bank of America and the Lead Borrower to effectively assume the obligations of Bank of America with respect to such Letters of Credit. Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also constitute its resignation as L/C Issuer and Swing Line Lender."
"Each of the Credit Parties acknowledges that (a) the Information may include material non-public information concerning the Loan Parties or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with Law, including Federal and state securities Laws."
"10.08Right of Setoff. If an Event of Default shall have occurred and be continuing or if any Lender shall have been served with a trustee process or similar attachment relating to property of a Loan Party, each Lender, each L/C Issuer and each of their respective 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, in whatever currency) or other property at any time held and other obligations (in whatever currency) at any time owing by such Lender, such 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 now or hereafter existing under this Agreement or any other Loan Document to such Lender or L/C Issuer, regardless of the adequacy of the Collateral, and irrespective of whether or not such Lender or L/C Issuer shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrowers or such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender or L/C Issuer different from the branch or office holding such deposit or obligated on such indebtedness. The rights of each Lender, each 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, each L/C Issuer or their respective Affiliates may have. Each Lender and each L/C Issuer agrees to notify the Lead Borrower 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."
"10.12Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction."
"10.13Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender is a Defaulting Lender or a Non- Consenting Lender, then the Borrowers may, at their 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 10.06), 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:"
"In connection with any such replacement, if any such Lender does not execute and deliver to the Administrative Agent a duly executed Assignment and Assumption reflecting such replacement within two (2) Business Days of the date on which the assignee Lender executes and delivers such Assignment and Assumption to such Lender, then such Lender shall be deemed to have executed and delivered such Assignment and Assumption without any action on the part of such Lender. Such purchase and sale shall be effective on the date of the payment of such amount to such Lender."
LOAN 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 AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY CREDIT PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(e)ACTIONS COMMENCED BY LOAN PARTIES. EACH LOAN PARTY AGREES THAT ANY ACTION COMMENCED BY ANY LOAN PARTY ASSERTING ANY CLAIM OR COUNTERCLAIM ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL BE BROUGHT SOLELY IN A COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AS THE ADMINISTRATIVE AGENT MAY ELECT IN ITS SOLE DISCRETION AND CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS WITH RESPECT TO ANY SUCH ACTION.
"(d)Each Loan Party is obligated to repay the Obligations as joint and several obligors under this Agreement. Upon payment by any Loan Party of any Obligations, all rights of such Loan Party against any other Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all"
"10.21No Strict Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto 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."
"10.24Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Solely to the extent any Lender or L/C Issuer that is an EEA Financial Institution is a party to this Agreement and 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 or L/C Issuer 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:"
"(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 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"
" | BORROWERS: |  ---|---|---  |  |   | KEANE GROUP HOLDINGS, LLC |   |  |  |   |  |  |   | By: | /s/ Gregory Powell |   |  | Name: | Gregory Powell |   |  | Title: | President and Chief Financial Officer |  "
" | KEANE FRAC, LP |  ---|---|---  |  |   |  |   | By: | Keane Frac GP, LLC, its General Partner |   | By: | KGH Intermediate Holdco II, LLC, its Managing Member |   |  |  |   |  |  |   | By: | /s/ Gregory Powell |   |  | Name: | Gregory Powell |   |  | Title: | President and Chief Financial Officer |  "
" | KS DRILLING, LLC |  ---|---|---  |  |   |  |   | By: | KGH Intermediate Holdco II, LLC, its Managing Member |   |  |  |   |  |  |   | By: | /s/ Gregory Powell |   |  | Name: | Gregory Powell |   |  | Title: | President and Chief Financial Officer |  "
"Reference is made to the Credit Agreement dated as of February 17, 2017 (as amended, modified, supplemented or restated hereafter, the Credit Agreement) by and among (i) Keane Group Holdings, LLC, a Delaware limited liability company (the Lead Borrower), (ii) the Borrowers party thereto from time to time (individually, a Borrower and, together with the Lead Borrower, the Borrowers), (iii) Keane Group, Inc., a Delaware corporation, (iv) the guarantors party thereto, (v) Bank of America, N.A., as administrative agent (in such capacity, the Administrative Agent) for its own benefit and the benefit of the other Credit Parties referred to therein, (vi) Bank of America, N.A., as collateral agent (in such capacity, the Collateral Agent) for its own benefit and the benefit of the other Credit Parties, (vii) the L/C Issuers party thereto, and (viii) the lenders from time to time party thereto (individually, a Lender and, collectively, the Lenders). All capitalized terms used herein and not otherwise defined shall have the same meaning herein as in the Credit Agreement."
"5 The Lead Borrower may request a Borrowing of LIBOR Rate Loans with an Interest Period of one, two, three or six months (or with the consent of all applicable Lenders, twelve months thereafter). If no election of Interest Period is specified, then the Lead Borrower will be deemed to have specified an Interest Period of one month."
"This is a Note to which reference is made in the Credit Agreement and is subject to all terms and provisions thereof. The principal of, and interest on, this Note shall be payable at the times, in the manner, and in the amounts as provided in the Credit Agreement and shall be subject to prepayment and acceleration as provided therein. Capitalized terms used herein and not defined herein shall have the meanings assigned to such terms in the Credit Agreement."
" ---  --- Each Borrower makes the following waiver knowingly, voluntarily, and intentionally, and understands that the Agents and the Lender, in the establishment and maintenance of their respective relationship with the Borrowers contemplated by this Note, are each relying thereon. EACH BORROWER, EACH GUARANTOR, ENDORSER AND SURETY, AND THE LENDER, BY ITS ACCEPTANCE HEREOF, 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 NOTE OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH BORROWER AND THE LENDER, BY ITS ACCEPTANCE HEREOF,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. EACH BORROWERACKNOWLEDGES THAT THE LENDER HAS BEEN INDUCED TO ENTER INTO THE CREDIT AGREEMENT AND THIS NOTE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS HEREIN."
"The liabilities of each Borrower, and of any endorser or guarantor of this Swing Line Note, are joint and several, provided, however, the release by any Agent or the Swing Line Lender of any one or more such Persons shall not release any other Person obligated on account of this Swing Line Note. Each reference in this Swing Line Note to any Borrower, any endorser, and any guarantor, is to such Person individually and also to all such Persons jointly. No Person obligated on account of this Swing Line Note may seek contribution from any other Person also obligated unless and until all of the Obligations have been paid in full in cash."
"Each of the Borrowers 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 COUNTY AND ANY FEDERAL COURT SITTING THEREIN, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SWING LINE NOTE OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE BORROWERS 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 APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE BORROWERS 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 SWING LINE NOTE OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR THE SWING LINE LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS SWING LINE NOTE OR ANY OTHER LOAN DOCUMENT AGAINST ANY OF THE BORROWERS OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION."
"I, the undersigned, a senior authorized financial officer of Keane Group Holdings, LLC, a Delaware limited liability company (Company), in that capacity only and not in my individual capacity (and without personal liability), do hereby certify as of the date hereof, and based upon facts and circumstances as they exist as of the date hereof (and disclaiming any responsibility for changes in such fact and circumstances after the date hereof), that:"
"The undersigned has furnished the Lead Borrower and the Administrative Agent with a certificate of its non-U.S. person status on an Internal Revenue Service Form W-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 the Lead Borrower and the Administrative Agent in writing and (2) the undersigned shall furnish the Lead Borrower and the Administrative Agent a properly completed and currently effective certificate in either the calendar year in which payment is to be made by the relevant Borrower or the Administrative Agent to the undersigned, or in either of the two calendar years preceding each such payment."
"Pursuant to the provisions of Section 3.01(e) of the Credit 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) with respect to the extension of credit pursuant to the Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a 10-percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code, (v) none of its direct or indirect partners/members is a controlled foreign corporation related to any Borrower as 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 undersigneds or its direct or indirect partners/members conduct of a U.S. trade or business."
"E.To secure all of its Obligations (as that term is defined in the Loan Agreement) to the Bank, the Company executed and delivered to the Bank a certain Security Agreement dated as of May 14, 2014 (the Security Agreement), pursuant to which the Company granted the Bank a security interest in substantially all of the Companys personal property assets, whether then owned or thereafter acquired, including without limitation accounts, chattel paper, deposit accounts, documents, goods, equipment, general intangibles and inventory, and all proceeds of, products of and supporting obligations of the foregoing."
"G.To further secure all of its Obligations (as that term is defined in the Loan Agreement) to the Bank, the Company executed and delivered to the Bank a certain Mortgage, Security Agreement, Assignment of Rents and Fixture Filing dated as of May 14, 2014 (the West Lafayette Mortgage), pursuant to which the Company granted the Bank a mortgage, security interest and assignment of rents with respect to certain real property located in West Lafayette, Indiana (the West Lafayette Property)."
"H.In consideration of the Bank entering into the Loan Agreement, BAS EVANSVILLE, INC., an Indiana corporation (the Guarantor), agreed, pursuant to a certain Guaranty Agreement dated as of May 14, 2014 (the Guaranty), to unconditionally guarantee the repayment of all obligations owing from the Company to the Bank, including the Companys obligations under the Loan Agreement;"
"I.To secure the Guarantors obligations to the Bank, including its obligations under the Guaranty, the Guarantor executed and delivered to the Bank a certain Mortgage, Security Agreement, Assignment of Rents and Fixture Filing dated as of May 14, 2014 (the Mt. Vernon Mortgage), pursuant to which the Company granted the Bank a mortgage, security interest and assignment of rents with respect to certain real property located in Mt. Vernon, Indiana (the Mt. Vernon Property)."
"7.Replacement Financing. The Company shall take commercially reasonable efforts to obtain funds sufficient to repay the Indebtedness in full upon the expiration of the Forbearance Period. On or before the 30th day of each month, the Company shall provide or cause to be provided to the Bank a report on its efforts and progress in obtaining such funds, which report must be in form an substance satisfactory to the Bank in is sole discretion. The Company shall provide or cause to be provided to the Bank copies of all loan proposals, term sheets or offers within five days of the receipt by the Company or its investment bank."
"13.Swap Agreement. Notwithstanding anything herein to the contrary, the Borrower acknowledges and agrees that the Designated Defaults are and shall continue to constitute Events of Default under the Swap Agreement such that the Bank may immediately, upon the earlier of (a) the end of the Forbearance Period or (b) the occurrence of a Default, designate an Early Termination Date (as defined in the Swap Agreement) and that, upon the occurrence of such Early Termination Date, the Borrower will be obligated to pay the Early Termination Amount (as defined in the Swap Agreement) and all other amounts owing under the Swap Agreement as a result of such Early Termination Date."
"(d)Consents and Approvals. No consent or approval of any party is required in connection with the execution and delivery of this Agreement by the Company, and the execution and delivery of this Agreement does not (a) contravene or result in a breach or default under the Companys articles of incorporation or organization, code of regulations or operating agreement, other governing documents, or any other agreement or instrument to which the Company is a party or by which any of its properties are bound, or (b) violate any law, rule, regulation, order, writ, judgment, injunction, decree, determination, or award applicable to the Company; and"
"28.Indulgence; Modifications. No delay or failure of the Bank to exercise any right, power, or privilege hereunder shall affect such right, power or privilege, nor shall any single or partial exercise thereof preclude any further exercise thereof, nor the exercise of any other right, power or privilege. The rights of the Bank hereunder are cumulative and are not exclusive of any rights or remedies that the Bank would otherwise have except as modified herein. No amendment, modification, supplement, termination, consent, or waiver of or to any provision of this Agreement, or any of the Loan Documents, nor any consent to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by or on behalf of the Bank."
"30.Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same agreement. Subject to Paragraph 17 hereof, this Agreement shall become effective upon the execution of a counterpart hereof by each of the parties hereto."
"amount of the net gain on sale of timberland properties included in the calculation of Consolidated EBITDA under this clause (ii) may not exceed 10% of the Consolidated EBITDA of the Company and its Subsidiaries for the immediately preceding four fiscal quarters (prior to including any gains from the sale of timberland properties), provided, further, that Consolidated EBITDA shall exclude (a) non-recurring transaction costs relating to a Permitted Acquisition such as (x) legal expenses, third party due diligence costs, transaction advisory services, hedging costs and financing fees, if applicable, for the fiscal quarters during which the transactions giving rise to such non-recurring costs are consummated and (y) project management and integration costs in an aggregate amount up to $5,000,000.00 incurred within one year of consummation of the transactions giving rise to such non-recurring costs, for the fiscal quarters during which such costs are incurred; (b) non- recurring third party transaction costs relating to the closing of this Agreement and repayment or early redemption of Indebtedness in connection therewith such as (x) legal expenses, and (y) fees or other charges pursuant to the prepayment or redemption of Indebtedness; (c) to the extent deducted in calculating net income, non-cash charges; and (d) to the extent deducted in calculating net income, extraordinary, unusual or non-recurring charges, costs or expenses in connection with any restructuring (whether or not classified as such under GAAP) or project start up (including, in each case, as a result of or in connection with any Permitted Acquisition) not to exceed in the aggregate (x) for any date of determination ending on or prior to December 31, 2017, 20% of Consolidated EBITDA (prior to giving effect to this clause (d)) for the trailing four quarter period immediately prior to such date of determination, and (y) for any date of determination ending after December 31, 2017, 15% of Consolidated EBITDA (prior to giving effect to this clause (d)) for the trailing four quarter period ending immediately prior to such date of determination, with any such amounts pursuant to this clause (d) being (x) excluded solely for purposes of determining compliance with any financial ratio calculation set forth herein, including for purposes of Sections 7.2.15 and 7.2.16 of this Agreement and (y) included for all purposes related to this Agreement in respect of fees and pricing based on Schedule 1.1(A).The Company shall provide supporting invoices for the exclusions from Consolidated EBITDA described in the preceding clauses (a)(x) and (y) and (b)(x) and (y) upon request by the Administrative Agent."
"THIS THIRD AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (this Amendment) is entered into as of February10, 2017 to be effective as of the Third Amendment Effective Date (as defined below) by SESI, L.L.C., a limited liability company duly formed and existing under the laws of the State of Delaware (the Borrower), Superior Energy Services, Inc., a corporation duly formed and existing under the laws of the State of Delaware (the Parent) each of the undersigned Guarantors (together with the Borrower and Parent, the Loan Parties), each of the undersigned Lenders, JPMORGAN CHASE BANK, N.A., as administrative agent for the Lenders (in such capacity, together with its successors in such capacity, the Administrative Agent) and as an Issuing Lender, BANK OF AMERICA, N.A., as an Issuing Lender, and CITIBANK, N.A., as a new Issuing Lender (the New Issuing Lender)."
"(ii) as of the effective date of such Incremental Increase, no Default or Event of Default shall have occurred and be continuing immediately after giving effect to such increase and the representations and warranties of the Borrower and the Guarantors set forth in this Agreement and in the other Loan Documents shall be true and correct in all material respects on and as of the date of such effective date, except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, on and as of the date of such increase such representations and warranties shall be true and correct in all material respects as of such specified earlier date;"
"(vi) receipt by the Administrative Agent of (A)board resolutions and officers certificates consistent with those delivered on the Closing Date and (B)reaffirmation agreements and/or such amendments to the Collateral Documents, in each case, as may be reasonably requested by the Administrative Agent in order to ensure that such incremental indebtedness is provided with the benefit of the applicable Loan Documents;"
"(viii) on the effective date of such increase, no Eurodollar Advances shall be outstanding or if any Eurodollar Advances are outstanding, then the effective date of such increase shall be the last day of the Interest Period in respect of such Eurodollar Advance unless the Borrower pays compensation required pursuant to Section3.3."
"Minimum Interest Coverage Ratio. The Parent will not permit the ratio, determined on a Pro Forma Basis (the Interest Coverage Ratio), of (a)EBITDA for the four fiscal quarters ending with each fiscal quarter (the determination date) to (b)Interest Expense actually paid in cash during the four fiscal quarters ending with such determination date, to be less than the figure set forth below:"
"4.2. Ratification and Affirmation; Representations and Warranties. Each Loan Party hereby (a)acknowledges the terms of this Amendment; (b)ratifies and affirms its obligations under, and acknowledges, renews and extends its continued liability under, each Loan Document to which it is a party and agrees that each Loan Document to which it is a party remains in full force and effect, except as expressly amended hereby, notwithstanding the amendments contained herein; and (c)represents and warrants to the Lenders that as of the date hereof, after giving effect to the terms of this Amendment: (i)all of the representations and warranties contained in each Loan Document to which it is a party are true and correct in all material respects, except to the extent any such representations and warranties are stated to relate solely to an earlier date, in which case, such representations and warranties shall have been true and correct in all material respects on and as of such earlier date (provided that such materiality qualifier shall not be applicable to any representation or warranty that is already qualified or modified by materiality in the Credit Agreement) and (ii)no Default or Event of Default has occurred and is continuing."
"4.4. Counterparts. This Amendment may be executed by one or more of the parties hereto in any number of separate counterparts, and all of such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of this Amendment by facsimile or electronic transmission in portable document format (.pdf) shall be effective as delivery of a manually executed counterpart hereof."
"(b) Pursuant to Section2.21(b) of the Credit Agreement, on the Effective Date, the New Commitment (and any Loans and L/C Exposure in connection with such New Commitment) shall automatically and without further action by any Person constitute Commitments and Aggregate Exposure of the Increasing Lender which shall be governed on the exact same terms and documentation applicable to the Credit Agreement and the other Loan Documents."
"Section1.04 Representations and Warranties. Prior to and after giving effect to the matters contemplated by this Agreement, the representations and warranties of the Borrower and the Guarantors set forth in the Credit Agreement and in the other Loan Documents are true and correct in all material respects on and as of the date of the Effective date, except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, on and as of the date of such increase such representations and warranties shall be true and correct in all material respects as of such specified earlier date."
"Section1.05 Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic image scan transmission shall be as effective as delivery of a manually executed counterpart of this Agreement."
"| | | | | | ---|---|---|---|---|---|--- |  | |  | SESI, L.L.C. | | |  | |  | By:  |  | |  | Name: |  | |  | Title: | | |  | |  | SUPERIOR ENERGY SERVICES, INC. | | |  | |  | By:  |  | |  | Name: |  |  |  | Title: | | Administrative Agent: |  | |  | JPMORGAN CHASE BANK, N.A. | | |  | |  | By:  |  | |  | Name: |  | |  | Title: | | Increasing Lender: |  | |  | [ ] | | |  | |  | By:  |  | |  | Name: |  | |  | Title: | | Issuing Lender: |  | |  | [ ] | | |  | |  | By:  |  | |  | Name: |  | |  | Title: "
"(a) The execution, delivery and performance by such Borrower of this Agreement and the Notes are within such Borrowers powers, have been duly authorized by all necessary company action, require no action by or in respect of, or filing with, any Governmental Authority (except for consents, authorizations or filings which have been obtained or made, as the case may be, and are in full force and effect) and do not contravene, or constitute a default under, any provision of applicable law or regulation or of the articles of incorporation, by laws, certificate of formation or the limited liability company agreement of such Borrower or of any material agreement, judgment, injunction, order, decree or other instrument binding upon such Borrower or result in the creation or imposition of any Lien on any asset of such Borrower or any of its Material Subsidiaries."
"(g) The Administrative Agent shall have received, at least three Domestic Business Days prior to the Amendment Effective Date, all documentation and other information about the Borrowers that shall have been reasonably requested by the Administrative Agent in writing at least 10 Domestic Business Days prior to the Amendment Effective Date and that the Administrative Agent reasonably determines is required by United States regulatory authorities under applicable know your customer and anti-money laundering rulesand regulations, including without limitation the Patriot Act."
"SECTION8. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature pageto this Agreement by facsimile or other means of electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement."
"SECTION10. WAIVER OF JURY TRIAL. EACH OF THE BORROWERS, THE AGENTS, THE ISSUING LENDERS AND THE LENDERS, TO THE FULLEST EXTENT IT MAYEFFECTIVELY DO SO UNDER APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY."
"Affiliate means, as to any Person (the specified Person) (i)any Person that directly, or indirectly through one or more intermediaries, controls the specified Person (a Controlling Person) or (ii)any Person (other than the specified Person or a Subsidiary of the specified Person) which is controlled by or is under common control with a Controlling Person. As used herein, the term control means possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise."
"Consolidated Capitalization means, with respect to any Borrower, the sum, without duplication, of (i)Consolidated Indebtedness of such Borrower, (ii)consolidated common equityholders equity as would appear on a consolidated balance sheet of such Borrower and its Consolidated Subsidiaries prepared in accordance with generally accepted accounting principles, (iii)the aggregate liquidation preference of preferred or priority equity interests (other than preferred or priority equity interests subject to mandatory redemption or repurchase) of such Borrower and its Consolidated Subsidiaries upon involuntary liquidation, (iv)the aggregate outstanding amount of all Equity Preferred Securities of such Borrower and (v)minority interests as would appear on a consolidated balance sheet of such Borrower and its Consolidated Subsidiaries prepared in accordance with generally accepted accounting principles."
"Consolidated Net Assets means, at any date with respect to any Borrower, (a)total assets of such Borrower and its Subsidiaries (minus applicable reserves) determined on a consolidated basis in accordance with GAAP minus (b)total liabilities of such Borrower and its Subsidiaries, in each case determined on a consolidated basis in accordance with GAAP, all as reflected in the consolidated financial statements of such Borrower most recently delivered to the Administrative Agent and the Lenders pursuant to Section5.01(a)or 5.01(b)."
"Domestic Lending Office means, as to each Lender, its office located at its address set forth in its Administrative Questionnaire (or identified in its Administrative Questionnaire as its Domestic Lending Office) or such other office as such Lender may hereafter designate as its Domestic Lending Office by notice to the Borrowers and the Administrative Agent."
"Duke Energy Ohio First Mortgage Trust Indenture means the first mortgage trust indenture, dated as of August1, 1936, between Duke Energy Ohio and The Bank of New York (successor to Irving Trust Company), as trustee, as amended, modified or supplemented from time to time, and any successor or replacement mortgage trust indenture."
"Euro-Dollar Lending Office means, as to each Lender, its office, branch or affiliate located at its address set forth in its Administrative Questionnaire (or identified in its Administrative Questionnaire as its Euro-Dollar Lending Office) or such other office, branch or affiliate of such Lender as it may hereafter designate as its Euro-Dollar Lending Office by notice to the Borrowers and the Administrative Agent."
"Existing Credit Agreement means the Amended and Restated Credit Agreement dated as of June28, 2007, among the Company, Duke Energy Carolinas, Duke Energy Ohio, Duke Energy Indiana, Duke Energy Kentucky, the banks party thereto, and Wachovia Bank, National Association, as administrative agent, as amended by Amendment No.1 dated as of March10, 2008."
"Federal Funds Rate means, for any day, the rate per annum (rounded upwards, if necessary, to the nearest 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System ~~arranged by Federal funds brokers on such day~~ , as published by the Federal Reserve Bank of New York on the Domestic Business Day next succeeding such day; provided that (i)if such day is not a Domestic Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Domestic Business Day as so published on the next succeeding Domestic Business Day and (ii)if no such rate is so"
"Lien means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset. For the purposes of this Agreement, any Borrower or any of its Subsidiaries shall be deemed to own subject to a Lien any asset which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such asset."
"Mortgage Indenture means in the case of each of Duke Energy Carolinas, Duke Energy Ohio, Duke Energy Indiana, Duke Energy Kentucky, Duke Energy Progress and Duke Energy Florida, the Duke Energy Carolinas Mortgage, the Duke Energy Ohio First Mortgage Trust Indenture, the Duke Energy Indiana First Mortgage Trust Indenture, the Duke Energy Kentucky First Mortgage Trust Indenture, the Duke Energy Progress Mortgage and Deed of Trust or the Duke Energy Florida Indenture, respectively."
"Section1.02. Accounting Terms and Determinations. Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared in accordance with generally accepted accounting principles as in effect from time to time, applied on a basis consistent (except for changes concurred in by the relevant Borrowers independent public accountants) with the most recent audited consolidated financial statements of such Borrower and its Consolidated Subsidiaries delivered to the Lenders; provided, that if the Company notifies the Administrative Agent that it wishes to amend the financial covenant in Section5.10 to eliminate the effect of any change in generally accepted accounting principles on the operation of such covenant (or if the Administrative Agent notifies the Company that the Required Lenders wish to amend Section5.10 for such purpose), then each Borrowers compliance with such covenant shall be determined on the basis of generally accepted accounting principles as in effect immediately before the relevant change in generally accepted accounting principles became effective, until either such notice is withdrawn or such covenant is amended in a manner satisfactory to the Company and the Required Lenders."
"Section2.01. Commitments to Lend. (a)Revolving Credit Loans. During its Revolving Credit Period, each Lender severally agrees, on the terms and conditions set forth in this Agreement, to make loans to each Borrower pursuant to this subsection from time to time; provided that, immediately after each such loan is made, the Utilization Limits are not exceeded. Each Borrowing under this subsection shall be in an aggregate principal amount of $10,000,000 or any larger multiple of $1,000,000 (except that any such Borrowing may be in the aggregate amount available in accordance with Section3.03(b)) and shall be made from the several Lenders ratably in proportion to their respective Commitments in effect on the date of Borrowing; provided that, if the Interest Period selected by the Borrower for a Borrowing would otherwise end after the Commitment Termination Dates of some but not all Lenders, the Borrower may in its Notice of Borrowing elect not to borrow from those Lenders whose Commitment Termination Dates fall prior to the end of such Interest Period. Within the foregoing limits, the Borrowers may borrow under this subsection (a), or to the extent permitted by Section2.11, prepay Loans and reborrow at any time during the Revolving Credit Periods under this subsection (a)."
"(b) Extension of Commitments. (i)The Company may, so long as no Default then exists and the representations and warranties of the Borrowers contained herein are true and correct at the time of notice, upon notice to the Administrative Agent not less than 60 days but no more than 90 days prior to any anniversary of the ~~Second~~ Third Amendment Effective Date, propose to extend the Commitment Termination Dates for an additional one-year period measured from the Commitment Termination Dates then in effect; provided that there shall be no more than two such extensions. The Administrative Agent shall promptly notify the Lenders of receipt of such request. Each Lender shall endeavor to respond to such request, whether affirmatively or negatively (such determination in the sole discretion of such Lender), by notice to the Company and the Administrative Agent within 30 days. Subject to the execution by the Borrowers, the Administrative Agent and such Lenders of a duly completed Extension Agreement in substantially the form of ExhibitE, the Commitment Termination Date applicable to the Commitment of each Lender so affirmatively notifying the Company and the Administrative Agent shall be extended for the period specified above; provided that no Commitment Termination Date of any Lender shall be extended unless Lenders having Commitments in an aggregate amount equal to at least 51% of the Commitments in effect at the time any such extension is requested shall have elected so to extend their Commitments."
"(ii) Any Lender which does not give such notice to the Company and the Administrative Agent shall be deemed to have elected not to extend as requested, and the Commitment of each non-extending Lender shall terminate on its Commitment Termination Date determined without giving effect to such requested extension. The Company may, in accordance with Section8.06, designate another bank or other financial institution (which may be, but need not be, an extending Lender) to replace a non-extending Lender. On the date of termination of any Lenders Commitment as contemplated by this paragraph, the respective participations of the other Lenders in all outstanding Letters of Credit and Swingline Loans shall be redetermined on the basis of their respective Commitments after giving effect to such termination, and the participation therein of the Lender whose Commitment is terminated shall terminate; provided that the Borrowers shall, if and to the extent necessary to permit such redetermination of participations in Letters of Credit and Swingline Loans within the limits of the Commitments which are not terminated, prepay on such date all or a portion of the outstanding Loans or, to the extent that such redetermination cannot be effected within the limits of the Commitments even after all outstanding Loans have been prepaid, then the Borrowers shall Cash Collateralize the Letters of Credit to the extent of the excess, and such redetermination and termination of participations in outstanding Letters of Credit and Swingline Loans shall be conditioned upon their having done so."
"(c) Unless the Administrative Agent shall have received notice from a Lender prior to 1:00 P.M.(Eastern time) on the date of any Borrowing that such Lender will not make available to the Administrative Agent such Lenders share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available to the Administrative Agent on the date of such Borrowing in accordance with subsection (b)of this Section2.03 and the Administrative Agent may, in reliance upon such assumption,"
"make available to the Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have so made such share available to the Administrative Agent, such Lender and, if such Lender shall not have made such payment within two Domestic Business Days of demand therefor, the Borrower agrees to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Administrative Agent, at (i)in the case of the Borrower, a rate per annum equal to the higher of the Federal Funds Rate and the interest rate applicable thereto pursuant to Section2.06 and (ii)in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lenders Loan included in such Borrowing for purposes of this Agreement."
"Section2.04. Registry; Notes. (a)The Administrative Agent shall maintain a register (the Register) on which it will record the Commitment of each Lender, each Loan made by such Lender and each repayment of any Loan made by such Lender. Any such recordation by the Administrative Agent on the Register shall be conclusive, absent manifest error. Failure to make any such recordation, or any error in such recordation, shall not affect the Borrowers obligations hereunder."
"(b) Each Borrower hereby agrees that, promptly upon the request of any Lender at any time, such Borrower shall deliver to such Lender a duly executed Note, in substantially the form of ExhibitA hereto, payable to such Lender or its registered assigns as permitted pursuant to Section9.06 and representing the obligation of such Borrower to pay the unpaid principal amount of the Loans made to such Borrower by such Lender, with interest as provided herein on the unpaid principal amount from time to time outstanding."
"(iii)a Borrowers Sublimit may not be increased to an amount greater than its Maximum Sublimit, (iv)the sum of the Sublimits of the respective Borrowers shall at all times equal the aggregate amount of the Commitments and (v)any such increase in a Borrowers Sublimit shall be accompanied or preceded by evidence reasonably satisfactory to the Administrative Agent as to appropriate corporate authorization therefor."
"(v) any other act or omission to act or delay of any kind by any Lender (including the Issuing Lender), the Administrative Agent or any other Person or any other event or circumstance whatsoever that might, but for the provisions of this subsection (v), constitute a legal or equitable discharge of the Borrowers or the Lenders obligations hereunder ~~.~~ ; or"
"(l) 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 Borrower to, or entered into by the Borrower with, the Issuing Lender relating to any Letter of Credit, the terms and conditions of this Agreement shall control."
"Loans in its entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article3, the Borrower shall reborrow Revolving Credit Loans from the Lenders in proportion to their respective Commitments after giving effect to such increase, until such time as all outstanding Revolving Credit Loans are held by the Lenders in such proportion. In connection with any increase in the aggregate amount of the Commitments pursuant to this Section, (i)the respective Sublimits of the Borrowers shall be increased by an equal aggregate amount as the Company may direct by notice to the Administrative Agent, subject to the limitations set forth in Section2.08(a), and (ii)the amount of the Maximum Sublimit of each Borrower shall increase ratably on a percentage basis by the same percentage as the Commitments are increased."
"(f) Euro-Dollar Protections. The Swingline Lender shall be entitled to the benefits of Sections 8.03 and 8.04 with respect to the Swingline Loans, and solely for this purpose such Swingline Loan shall be deemed to be a Euro- Dollar Loan having an Interest Period from and including the date such Swingline Loan was made to but not including its maturity date."
"(iii) to the extent that the Borrower Cash Collateralizes any portion of such Defaulting Lenders Letter of Credit Liabilities pursuant to clause (ii)above, the Borrower shall not be required to pay any fees pursuant to Section2.07(a)or pursuant to Section2.07(b)for the account of such Defaulting Lender during the period such Defaulting Lenders Letter of Credit Liabilities are so Cash Collateralized;"
"(vi) so long as such Lender is a Defaulting Lender, no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lenders then outstanding Letter of Credit Liabilities will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the Borrower in accordance with Section2.19(b)(ii), and participating interests in any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section2.19(b)(i)(and such Defaulting Lender shall not participate therein); and"
"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 Section2.19(c)shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto; and"
"(c) receipt by the Administrative Agent of (i)an opinion of internal counsel of each Progress Borrower, substantially in the form of ExhibitB hereto and (ii)an opinion of Robinson, Bradshaw& Hinson, P.A., special counsel for the Borrowers, substantially in the form of ExhibitC hereto, and, in each case, covering such additional matters relating to the transactions contemplated hereby as the Required Lenders may reasonably request;"
"provided that the Delayed Additional Commitments shall not become effective unless all of the foregoing conditions are satisfied not later than July8, 2012. The Administrative Agent shall promptly notify the Company and the Lenders of the Second Effective Date, and such notice shall be conclusive and binding on all parties hereto."
"Section4.04. Financial Information. (a)The consolidated balance sheet of such Borrower and its Consolidated Subsidiaries as of December31, ~~2013~~ 2016 and the related consolidated statements of income, cash flows, capitalization and retained earnings for the fiscal year then ended, reported on by Deloitte& Touche, copies of which have been delivered to each of the Lenders by using such Borrowers Syndtrak site or otherwise made available, fairly present in all material respects, in conformity with generally accepted accounting principles, the consolidated financial position of such Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such fiscal year."
"Section4.08. Taxes. Such Borrower and its Material Subsidiaries have filed all United States Federal income tax returns and all other material tax returns which are required to be filed by them and have paid all taxes due pursuant to such returns or pursuant to any assessment received by such Borrower or any such Material Subsidiary except (i)where nonpayment would not have a material adverse effect on the business, financial position or results of operations of such Borrower and its Consolidated Subsidiaries, considered as a whole, or (ii)where the same are contested in good faith by appropriate proceedings. The charges, accruals and reserves on the books of such Borrower and its Material Subsidiaries in respect of taxes or other governmental charges are, in the opinion of such Borrower, adequate."
"(b) as soon as available and in any event within 60 days (75 days in the case of Duke Energy Kentucky) after the end of each of the first three quarters of each fiscal year of such Borrower, a consolidated balance sheet of such Borrower and its Consolidated Subsidiaries as of the end of such quarter and the related consolidated statements of income and cash flows for such quarter and for the portion of such Borrowers fiscal year ended at the end of such quarter, setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of such Borrowers previous fiscal year, all certified (subject to normal year-end adjustments) as to fairness of presentation in all material respects, generally accepted accounting principles and consistency (except as provided by Section1.02) by an Approved Officer of such Borrower;"
"Section5.06. Books and Records. Such Borrower will keep, and will cause each of its Material Subsidiaries to keep, proper books of record and account in which full, true and correct entries shall be made of all financial transactions in relation to its business and activities in accordance with its customary practices; and will permit, and will cause each such Material Subsidiary to permit, representatives of any Lender at such Lenders expense (accompanied by a representative of such Borrower, if such Borrower so desires) to visit any of their respective properties, to examine any of their respective books and records and to discuss their respective affairs, finances and accounts with their respective officers, employees and independent public accountants, all upon such reasonable notice, at such reasonable times and as often as may reasonably be desired."
"(f) any Lien arising out of the refinancing, extension, renewal or refunding of any Indebtedness secured by any Lien permitted by any of the foregoing clauses of this Section; provided that such Indebtedness is not increased (except by accrued interest, prepayment premiums and fees and expenses incurred in connection with such refinancing, extension, renewal or refunding) and is not secured by any additional assets;"
"(m) other Liens including Liens imposed by Environmental Laws arising in the ordinary course of its business which (i)do not secure Indebtedness, (ii)do not secure any obligation in an amount exceeding $100,000,000 at any time at which Investment Grade Status does not exist as to such Borrower and (iii)do not in the aggregate materially detract from the value of its assets or materially impair the use thereof in the operation of its business;"
"(k) any person or group of persons (within the meaning of Section13 or 14 of the Securities Exchange Act of 1934, as amended (the Exchange Act)) other than trustees and participants in employee benefit plans of the Company and its Subsidiaries or the Endowment or Trust, shall have acquired beneficial ownership (within the meaning of Rule13d-3 promulgated by the Securities and Exchange Commission under the Exchange Act) of 50% or more of the outstanding shares of common stock of the Company; during any period of twelve consecutive calendar months, individuals (i)who were members of the board of directors of the Company or equivalent governing body on the first day of such period, ( ~~together with (i) any directors appointed pursuant to the Merger Agreement and (ii)any successors nominated or appointed by then incumbent directors in the ordinary course)~~ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i)above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii)whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i)and (ii)above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body shall cease to constitute a majority of the board of directors of the Company; or in the case of any Borrower other than the Company, such Borrower shall cease to be a Subsidiary of the Company;"
"then, and in every such event, the Administrative Agent shall (i)if requested by Lenders having more than 66-2/3% in aggregate amount of the Commitments, by notice to such Borrower terminate the Commitments as to such Borrower and they shall thereupon terminate, and such Borrower shall no longer be entitled to borrow hereunder, and the"
"U.S. Tax Law Change means with respect to any Lender or Participant the occurrence (x)in the case of each Lender listed on the signature pageshereof, after the date of its execution and delivery of this Agreement and (y)in the case of any other Lender, after the date such Lender shall have become a Lender hereunder, and (z)in the case of each Participant, after the date such Participant became a Participant hereunder,"
"(b) Any and all payments by or any account of any Borrower to or for the account of any Lender or the Administrative Agent hereunder or under any Note shall be made without deduction for any Taxes or Other Taxes, except as required by applicable law; provided that if any Borrower or the Administrative Agent shall be required by law to deduct any Taxes or Other Taxes from any such payments, (i)the sum payable by such Borrower shall be increased as necessary so that after all required deductions are made (including deductions applicable to additional sums payable under this Section8.04) such Lender or the Administrative Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii)such Borrower or the Administrative Agent shall make such deductions, (iii)such Borrower or the Administrative Agent shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law and (iv)if the withholding agent is the Borrower, such Borrower shall furnish to the Administrative Agent, at its address referred to in Section9.01, the original or a certified copy of a receipt evidencing payment thereof."
"(iii) in the case of a Lender claiming the benefits of the exemption for portfolio interest under Section881(c)of the Internal Revenue Code, (x)a certificate reasonably acceptable to the Administrative Agent to the effect that such Lender is not a bank within the meaning of Section881(c)(3)(A)of the Internal Revenue Code, a 10 percent shareholder of any Borrower within the meaning of Section881(c)(3)(B)of the Internal Revenue Code, or a controlled foreign corporation described in Section881(c)(3)(C)of the Internal Revenue Code (a U.S. Tax Compliance Certificate) and (y)executed originals of IRS FormW-8BEN; or"
"(e) Any Lender that is organized under the laws of a jurisdiction within the United States 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 FormW-9 certifying that such Lender is exempt from U.S. ~~Federal~~ federal backup withholding tax."
"(j) If any Lender or the Administrative Agent receives a refund of any Taxes or Other Taxes for which any Borrower has made a payment under Section8.04(b)or (c)and such refund was received from the taxing authority which originally imposed such Taxes or Other Taxes, such Lender or the Administrative Agent agrees to reimburse such Borrower to the extent of such refund; provided that nothing contained in this paragraph (j)shall require any Lender or the Administrative Agent to seek any such refund or make available its tax returns (or any other information relating to its taxes which it deems to be confidential)."
"(a) the Company shall have the right, with the assistance of the Administrative Agent (or, if the Administrative Agent is a Defaulting Lender, the Required Lenders), to designate ~~a substitute bank or banks~~ an Assignee (which may be one or more of the Lenders) mutually satisfactory to the Company and, so long as any such Persons are not Defaulting Lenders, the Administrative Agent, the Swingline Lender and the Issuing Lenders (whose consent shall not be unreasonably withheld or delayed) to purchase for cash, pursuant to an Assignment and Assumption Agreement in substantially the form of ExhibitD hereto, the outstanding Loans of such Lender and assume the Commitment and Letter of Credit Liabilities of such Lender (including any Commitments, Loans and Letter of Credit Liabilities that have been participated), without recourse to or warranty by, or expense to, such Lender, for a purchase price equal to the principal amount of all of such Lenders outstanding Loans and funded Letter of Credit Liabilities plus any accrued but unpaid interest thereon and the accrued but unpaid fees in respect of such Lenders Commitment hereunder and all other amounts payable by the Borrowers to such Lender hereunder plus such amount, if any, as would be payable pursuant to Section2.13 if the outstanding Loans of such Lender were prepaid in their entirety on the date of consummation of such assignment; and"
"respective discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it or as it otherwise determines, provided that such determination or approval 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 given during the normal business hours of the recipient, such notice or communication shall be deemed to have been given at the opening of business on the next Domestic Business Day or Euro-Dollar Business Day, as applicable, 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) To the fullest extent permitted by applicable law, each 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, 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 referred to in paragraph (b)above 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 transactions contemplated hereby or thereby."
"Section9.04. Sharing of Set-offs. Each Lender agrees that if it shall, by exercising any right of set-off or counterclaim or otherwise, receive payment of a proportion of the aggregate amount then due with respect to the Loans and Letter of Credit Liabilities held by it which is greater than the proportion received by any other Lender in respect of the aggregate amount then due with respect to the Loans and Letter of Credit Liabilities held by such other Lender, the Lender receiving such proportionately greater payment shall purchase such participations in the Loans and Letter of Credit Liabilities held by the other Lenders, and such other adjustments shall be made, as may be required so that all such payments with respect to the Loans and Letter of Credit Liabilities held by the Lenders shall be shared by the Lenders pro rata; provided that (i)nothing in this Sectionshall impair the right of any Lender to exercise any right of set-off or counterclaim it may have and to apply the amount subject to such exercise to the payment of indebtedness of a Borrower other than its indebtedness under this Agreement and (ii)this Sectionis not applicable to Swingline Loans."
"(c) Any Lender may at any time assign to one or more banks or other financial institutions (each an Assignee) other than ( ~~x~~ w) a Borrower ( ~~y~~ x) a Subsidiary or Affiliate of a Borrower ~~or~~ , ( ~~z~~ y) a Defaulting Lender or any Person who, upon becoming a Lender hereunder, would constitute a Defaulting Lender, or (z)a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person), all, or a proportionate part (equivalent to an initial Commitment of not less than $10,000,000 (unless the Company and the Administrative Agent shall otherwise agree)) of all, of its rights and obligations under this Agreement and its Note (if any), and such Assignee shall assume such rights and obligations, pursuant to an Assignment and Assumption Agreement in substantially the form of ExhibitD hereto executed by such Assignee and such transferor Lender, with (and only with and subject to) the prior written consent of the Swingline Lender, the Issuing Lenders, the Administrative Agent (which shall not be unreasonably withheld or delayed) and, so long as no Event of Default has occurred and is continuing, the Company (which shall not be unreasonably withheld or delayed); provided that unless such assignment is of the entire right, title and interest of the transferor Lender hereunder, after making any such assignment such transferor Lender shall have a Commitment of at least $10,000,000 (unless the Company and the Administrative Agent shall otherwise agree). Upon execution and delivery of such instrument of assumption and payment by such Assignee to such transferor Lender of an amount equal to the purchase price agreed between such transferor Lender and such Assignee, such Assignee shall be a Lender party to this Agreement and shall have all the rights and obligations of a Lender with a Commitment"
"(e) No Assignee, Participant or other transferee of any Lenders rights (including any Applicable Lending Office other than such Lenders initial Applicable Lending Office) shall be entitled to receive any greater payment under Section8.03 or 8.04 than such Lender would have been entitled to receive with respect to the rights transferred, unless such transfer is made by reason of the provisions of Section8.02, 8.03 or 8.04 requiring such Lender to designate a different Applicable Lending Office under certain circumstances or at a time when the circumstances giving rise to such greater payment did not exist."
"Section9.08. Confidentiality. Each ~~Agent and each~~ Lender Party (i)agrees to keep any information delivered or made available by any Borrower pursuant to this Agreement confidential from anyone other than persons employed or retained by such Lender Party and its Affiliates who are engaged in evaluating, approving, structuring or administering the credit facility contemplated hereby and (ii)further agrees on behalf of itself and, to the extent it has the power to do so, its Affiliates and agents, to keep all other information delivered or made available to it by any Borrower or Affiliate of any Borrower for other purposes which, (x)is marked confidential and is expressly made available subject to the terms of this section, and (y)is not otherwise subject to a confidentiality agreement, confidential from anyone other than persons employed or retained by such Lender Party and its Affiliates and agents who need to receive such information in furtherance of the engagement or matter pursuant to which the information is provided; provided that nothing herein shall prevent any Lender Party or, solely with respect to information disclosed in a manner set forth in clauses (b)through (g)and ( ~~k~~ m) in this Section9.08, any Affiliate of such Lender from disclosing such information, to the extent necessary under the circumstances under which such disclosure is required, (a)to any other Lender"
"(b) The Progress Borrowers, Progress Energy,Inc., through its execution of the Progress Energy,Inc. Consent in the form attached as ExhibitI, and each of the Lenders that is also a Lender party to any of the Existing Progress Credit Agreements (which Lenders constitute the Majority Lenders (as defined in each of the Existing Progress Credit Agreements) agree that the Commitments (as defined in each of the Existing Progress Credit Agreements) under each of the Existing Progress Credit Agreements shall be terminated in their entirety on the Second Effective Date in accordance with the terms thereof. Each of such Lenders waives any requirement of notice of such termination of any Existing Progress Credit Agreement."
"Section9.14. No Fiduciary Duty. Each Borrower agrees that in connection with all aspects of the Loans and Letters of Credit contemplated by this Agreement and any communications in connection therewith, (i)such Borrower and its Subsidiaries, on the one hand, and the Agents, the Lenders and their respective affiliates, on the other hand, will have a business relationship that does not create, by implication or otherwise, any fiduciary duty on the part of the Agents, the Lenders or their respective affiliates, and no such duty will be deemed to have arisen in connection with any such transactions or communications ~~.~~ and (ii)the Administrative Agent, the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of such Borrower and its Affiliates, and neither the Administrative Agent nor any Lender has any obligation to disclose any of such interests to such Borrower or any of its Affiliates."
"Section9.16. Acknowledgement and Consent to Bail-in of EEA Financial Institutions. Notwithstanding anything to the contrary in this Agreement, any Note or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under this Agreement or any Note, 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:"
"All Loans made by the Lender, the respective types and maturities thereof and all repayments of the principal thereof shall be recorded by the Lender, and the Lender, if the Lender so elects in connection with any transfer or enforcement of its Note, may endorse on the schedule attached hereto appropriate notations to evidence the foregoing information with respect to the Loans then outstanding; provided that the failure of the Lender to make any such recordation or endorsement shall not affect the obligations of the Borrower hereunder or under the Credit Agreement."
"The opinions expressed herein are limited to the matters expressly stated herein, and no opinion is to be inferred or may be implied beyond the matters expressly so stated. This opinion is rendered to you in connection with the above-referenced matter and may not be relied upon by you for any other purpose, or relied upon by, or furnished to, any other Person, firm or corporation without my prior written consent, except for Additional Lenders and Assignees. My opinions expressed herein are as of the date hereof, and I undertake no obligation to advise you of any changes of applicable law or any other matters that may come to my attention after the date hereof that may affect my opinions expressed herein."
"The opinions set forth herein are limited to matters governed by the laws of the State of North Carolina and the federal laws of the United States, and no opinion is expressed herein as to the laws of any other jurisdiction. For purposes of our opinions, we have disregarded the choice of law provisions in the Credit Agreement and, instead, have assumed with your permission that the Credit Agreement and the Notes are governed exclusively by the internal, substantive laws and judicial interpretations of the State of North Carolina. We express no opinion concerning any matter respecting or affected by any laws other than laws that a lawyer in North Carolina exercising customary professional diligence would reasonably recognize as being directly applicable to the Borrower, the Loans, or any of them."
"This opinion letter is delivered solely for your benefit in connection with the Credit Agreement and, except for any Additional Lender or any Assignee which becomes a Lender pursuant to Section2.17(b)or Section9.06(c)of the Credit Agreement, may not be used or relied upon by any other Person or for any other purpose without our prior written consent in each instance. Our opinions expressed herein are as of the date hereof, and we undertake no obligation to advise you of any changes of applicable law or any other matters that may come to our attention after the date hereof that may affect our opinions expressed herein."
"WHEREAS, the Assignor proposes to assign to the Assignee all of the rights of the Assignor under the Credit Agreement in respect of a portion of its Commitment thereunder in an amount equal to $ (the Assigned Amount), together with a corresponding portion of its outstanding Loans and Letter of Credit Liabilities, and the Assignee proposes to accept assignment of such rights and assume the corresponding obligations from the Assignor on such terms;*"
"SECTION4. Consent to Assignment. This Agreement is conditioned upon the consent of [Duke Energy Corporation,] [the Swingline Lender,] [the Issuing Lenders] and the Administrative Agent pursuant to Section9.06(c)of the Credit Agreement. The execution of this Agreement by [Duke Energy Corporation,] [the Issuing Lenders] and the Administrative Agent is evidence of this consent. Pursuant to Section9.06(c)each Borrower agrees to execute and deliver a Note, if required by the Assignee, payable to the order of the Assignee to evidence the assignment and assumption provided for herein."
"Effective as of [date], the undersigned hereby agrees to extend its Commitment and Commitment Termination Date under the Credit Agreement dated as of November18, 2011 ~~(as amended by Amendment No. 1, dated as of December[18], 2013~~, among Duke Energy Corporation and the other Borrowers party thereto, the Lenders party thereto, Wells Fargo Bank, National Association, as Administrative Agent, and the other Agents party thereto (as amended, the Credit Agreement) for one year to [date to which its Commitment Termination Date is to be extended] pursuant to Section2.01(b)of the Credit Agreement. Terms defined in the Credit Agreement are used herein as therein defined."
"WE HEREBY ISSUE OUR IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER ,IN FAVOR OF [INSERT BENEFICIARY NAME], BY ORDER AND FOR THE ACCOUNT OF [DUKE ENERGY CORPORATION] [DUKE ENERGY CAROLINAS, LLC] [DUKE ENERGY OHIO,INC.] [DUKE ENERGY INDIANA, ~~INC.~~ LLC] [DUKE ENERGY KENTUCKY,INC.] DUKE ENERGY PROGRESS, ~~INC.~~ LLC] [DUKE ENERGY FLORIDA, LLC] [PIEDMONT NATURAL GAS COMPANY,INC.], [ON BEHALF OF [INSERT NAME OF [DUKE ENERGY CORPORATION] [DUKE ENERGY CAROLINAS, LLC] [DUKE ENERGY OHIO,INC.] [DUKE ENERGY INDIANA, ~~INC.~~ LLC] [DUKE ENERGY KENTUCKY,INC.] ~~[~~ DUKE ENERGY PROGRESS, ~~INC.~~ LLC] [ ~~DUKE~~ DUKE ENERGY FLORIDA, LLC] [PIEDMONT NATURAL GAS COMPANY,INC.]S AFFILIATE OR SUBSIDIARY],] AT SIGHT FOR UP TO U.S. DOLLARS ( UNITED STATES DOLLARS) AGAINST THE FOLLOWING DOCUMENTS:"
"1) A BENEFICIARYS SIGNED CERTIFICATE STATING [[ ~~DUKE ENERGY CORPORATION] [DUKE ENERGY CAROLINAS, LLC] [DUKE ENERGY OHIO, INC.] [DUKE ENERGY INDIANA,INC.] [DUKE ENERGY KENTUCKY,INC.~~DUKE ENERGY CORPORATION] [DUKE ENERGY CAROLINAS, LLC] [DUKE ENERGY OHIO,INC.] [DUKE ENERGY INDIANA, LLC] [DUKE ENERGY KENTUCKY,INC.] DUKE ENERGY PROGRESS, LLC] [DUKE ENERGY FLORIDA, LLC] [PIEDMONT NATURAL GAS COMPANY,INC.]]/[INSERT NAME OF [ ~~DUKE ENERGY CORPORATION] [DUKE ENERGY CAROLINAS, LLC] [DUKE ENERGY OHIO, INC.] [DUKE ENERGY INDIANA,INC.] [DUKE ENERGY KENTUCKY,INC.] [DUKE ENERGY PROGRESS,INC.] [DUKE ENERGY FLORIDA,INC.~~DUKE ENERGY CORPORATION] [DUKE ENERGY CAROLINAS, LLC] [DUKE ENERGY OHIO,INC.] [DUKE ENERGY INDIANA, LLC] [DUKE ENERGY KENTUCKY,INC.] DUKE ENERGY PROGRESS, LLC] [DUKE ENERGY FLORIDA, LLC] [PIEDMONT NATURAL GAS COMPANY,INC.]S AFFILIATE OR SUBSIDIARY]] IS IN DEFAULT UNDER ONE OR MORE AGREEMENTS BETWEEN [[ ~~DUKE ENERGY CORPORATION] [DUKE ENERGY CAROLINAS, LLC] [DUKE ENERGY OHIO, INC.] [DUKE ENERGY INDIANA,INC.] [DUKE ENERGY KENTUCKY,INC.] [DUKE ENERGY PROGRESS,INC.] [DUKE ENERGY FLORIDA,INC.~~DUKE ENERGY CORPORATION] [DUKE ENERGY CAROLINAS, LLC] [DUKE ENERGY OHIO,INC.] [DUKE ENERGY INDIANA, LLC] [DUKE ENERGY KENTUCKY,INC.] DUKE ENERGY PROGRESS, LLC] [DUKE ENERGY FLORIDA, LLC]"
"4. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument."
"WHEREAS, the Borrower intends that the proceeds of the Term Loans incurred pursuant to this Agreement, together with cash on hand, will be used (i) to repay (including through a satisfaction and discharge) all of the outstanding obligations under the 2023 Secured Notes (the 2023 Secured Notes Redemption) and (ii) to pay fees and expenses incurred in connection with this Agreement and related to the 2023 Secured Notes Redemption (including, without limitation, any call and tender premiums)."
"2013 Credit Agreement: that certain Credit Agreement, dated as of October 23, 2013 (as amended, amended and restated, supplemented or otherwise modified from time to time), by and among the Borrower, Citibank, N.A., as administrative agent, MUFG Union Bank, N.A., as successor collateral agent pursuant to the Successor Agent Agreement, and the lenders party thereto."
"2015 December Credit Agreement: that certain Credit Agreement, dated as of December 15, 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."
"be drawn and/or utilized as of such date, plus (c) the book value, as determined by the Borrowers chief financial officer in good faith, of any assets (other than goodwill and other intangible assets and current derivative assets and long term derivative assets) acquired by the Loan Parties since the end of such fiscal quarter that, as of such date, are held by the Loan Parties, minus (d) all current liabilities (other than any such liabilities that (i) would be included in the aggregate amount of First Lien Debt outstanding as of such date of determination pursuant to Section 6.1(b) or (ii) constitute current derivative liabilities) of the Loan Parties reflected on such balance sheet, in each case, calculated on a consolidated basis in accordance with GAAP as in effect on October 21, 2009."
"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."
"Environmental Laws: any and all applicable foreign, Federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, legally binding requirements of any Governmental Authority or other Requirements of Law (including common law) regulating, relating to or imposing liability or standards of conduct concerning protection of the environment or of human health (to the extent related to exposure to Materials of Environmental Concern), as now or may at any time hereafter be in effect."
"Eurocurrency Reserve Requirements: for any day as applied to a Eurodollar Loan, the aggregate (without duplication) of the maximum rates (expressed as a decimal fraction) of reserve requirements in effect on such day (including basic, supplemental, marginal and emergency reserves) under any regulations of the Board of Governors or other Governmental Authority having jurisdiction with respect thereto dealing with reserve requirements prescribed for eurocurrency funding (currently referred to as Eurocurrency Liabilities in Regulation D of the Board of Governors) maintained by a member bank of the Federal Reserve System."
"Eurodollar Base Rate: with respect to each day during each Interest Period pertaining to a Eurodollar 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) on the date that is two Business Days prior to the beginning of the relevant Interest Period for deposits in Dollars for a period equal to such Interest Period; provided that, to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the Eurodollar Base Rate shall be the interest rate per annum (a) determined through the use of straight-line interpolation by reference to two such rates, one of which shall be determined as if the length of the period of such deposits were the period of time for which the rate for such deposits are available is the period next shorter than the length of such Interest Period and the other of which shall be determined as if the period of time for which the rate for such deposits are available is the period next longer than the length of such Interest Period as determined by the Administrative Agent or such rate (b) agreed upon by the Administrative Agent and Borrower."
"(2) to the extent issued or outstanding, (A) the 2022 Secured Notes, the 2024 Secured Notes and the 2026 Secured Notes, (B) Specified Cash Management Obligations and Specified Swap Obligations and (C) any other Indebtedness (including (x) obligations under Eligible Commodity Hedge Agreements not included pursuant to clause (B) of this paragraph, (y) obligations under Eligible Commodity Hedge Financings and (z) permitted refinancings of First Lien Debt, including any Credit Agreement as defined in clause (b) of the definition thereof), that, in the case of this clause (C), are secured equally and ratably with the Credit Facility Obligations by a First Lien that was expressly permitted to be incurred and so secured under each then outstanding Credit Agreement (or if no such Credit Agreement is then in effect, each other applicable Secured Debt Document); provided that the foregoing provisions of preceding clause (C) shall not be construed to permit general basket Indebtedness or Lien baskets to be used to provide equal and ratable security as First Lien Debt in each case unless the respective provisions in each then outstanding Credit Agreement (if any) expressly provide that equal and ratable liens on the Collateral with the Credit Facility Obligations shall be permitted; and provided further that in the case of any Indebtedness or other obligations referred to in this clause (2):"
"Guarantee: a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise)."
"(a) that all Second Lien Obligations will be and are secured equally and ratably by all Second Liens at any time granted by the Borrower or any other Grantor to secure any obligations in respect of such Series of Second Lien Debt, whether or not upon property otherwise constituting collateral for such Series of Second Lien Debt, and that all such Second Liens will be enforceable by the Collateral Agent for the benefit of all holders of Second Lien Obligations equally and ratably;"
"Material Subsidiaries: the collective reference to the following Subsidiaries of the Borrower: the Geysers Entities, Calpine Energy Services Holdings, Inc., Calpine Calgen Holdings, Inc., Calpine CCFC Holdings, Inc., CPN Energy Services GP, Inc., CPN Energy Services LP, Inc., Calpine Riverside Holdings, LLC, New Development Holdings, LLC and its Subsidiaries, the DPME Entities and the Material Project Subsidiaries and all of their respective direct and indirect Subsidiaries (excluding, for the avoidance of doubt, California Peaker Holdings, LLC and its Subsidiaries and South Point Holdings, LLC and its Subsidiaries), and each of the Calpine Power Company, Calpine Operations Management Company, Inc., Calpine Administrative Services Company, Inc. and Calpine Fuels Operation; it being understood that any Subsidiary into which any Material Subsidiary merged or otherwise consolidated or any Subsidiary to which all or substantially all of the assets of any Material Subsidiary are transferred or otherwise disposed shall constitute a Material Subsidiary for all purposes under this Agreement."
"(6) Liens incurred or deposits made 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, government contracts, performance and return-of-money bonds and other similar obligations incurred in the ordinary course of business (exclusive of obligations in respect of the payment for borrowed money);"
"(7) Liens to secure the performance of bids, trading contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds, and other obligations of a like nature incurred in the ordinary course of business; provided that, for the avoidance of doubt, Liens (including, without limitation, rights of set-off) on (i) deposits and (ii) revenues under trading contracts, in each case in favor of counterparties under such trading contracts and other obligations incurred in the ordinary course of business (including trading counterparties, brokerages, clearing houses, utilities, systems operators and similar entities) shall be permitted and shall be permitted to be first priority Liens on such collateral;"
"(8) Liens existing on October 22, 2010 and Liens on assets of the Borrower or any of its Subsidiaries securing obligations incurred to refinance, replace, refund, renew or extend obligations (and obligations refinancing such obligations) secured by Liens existing on October 22, 2010; provided that the Liens securing such obligations shall attach only to the assets that were subject to Liens securing the obligations so refinanced, replaced, refunded, renewed or extended;"
"(12) easements, rights-of-way, restrictions, zoning ordinances and other similar encumbrances incurred in the ordinary course of business which, are not substantial in amount and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the Borrower and any of its Restricted Subsidiaries;"
"(21) good faith deposits made in connection with (a) any acquisition (whether pursuant to an acquisition of Capital Stock, assets or otherwise) by the Borrower or any of its Subsidiaries from any Person of all or substantially all of the assets of a Person or a line of business of a Person or (b) any advance, loan, extension of credit (by way of guarantee or otherwise) or capital contribution, or purchase of any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or any other investment;"
"(33) with respect to any Mortgaged Property that is leased, subleased, held by or benefitting from, an easement agreement, or subject to a Generating Plant Easement, (i) the lease, sublease or easement agreement, as applicable, and the interest or title of the lessor, sublessor or grantor thereunder and (ii) any Liens encumbering the title of such lessor, sublessor or grantor, as applicable, in the Mortgaged Property arising after the date hereof and subordinate in all respects to the Lien granted and evidenced by the Mortgages."
"Permitted Refinancing Indebtedness: any Indebtedness that constitutes First Lien Debt issued in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge other Indebtedness that constitutes First Lien Debt; provided that 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 Indebtedness renewed, refunded, refinanced, replaced, defeased or discharged (plus all accrued interest on such Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith)."
"Solvent: when used with respect to any Person and its Subsidiaries, means that, as of any date of determination, (a) the amount of the present fair saleable value of the assets of such Person and its Subsidiaries on a consolidated basis will, as of such date, exceed the amount of all liabilities of such Person and its Subsidiaries on a consolidated basis, contingent or otherwise, as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of such Person and its Subsidiaries will, as of such date, be greater than the amount that will be required to pay the probable liability of such Person and its Subsidiaries on a consolidated basis on its debts as such debts become absolute and matured, (c) such Person and its Subsidiaries on a consolidated basis will not have, as of such date, an unreasonably small amount of capital with which to conduct their business, and (d) such Person and its Subsidiaries will be able to pay their debts as they mature. For purposes of this definition, (i) debt means liability on a claim, and (ii) claim means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured."
"Successor Agent Agreement: that certain Successor Agent Agreement dated as of March 31, 2016 by and among Goldman Sachs Bank USA, in its capacity as Existing Administrative Agent (as defined therein), Goldman Sachs Credit Partners L.P., in its capacity as Existing Collateral Agent (as defined therein), The Bank of Tokyo-Mitsubishi UFJ, Ltd., in its capacity as Successor Administrative Agent (as defined therein), MUFG Union Bank, N.A., in its capacity as Successor Collateral Agent (as defined therein), the Borrower and the Guarantors pursuant to which each of the Existing Administrative Agent and the Existing Collateral Agent (each as defined therein) resigned such roles and the Successor Administrative Agent and Successor Collateral Agent (each as defined therein) were appointed as successor under the Credit Documents (as defined therein) effective as of the Effective Date (as defined therein)."
"Term Percentage: as to any Lender at any time, the percentage which such Lenders Term Commitment then constitutes of the aggregate Term Commitments (or, at any time after the making of the Term Loans on the Closing Date, the percentage which the aggregate principal amount of such Lenders Term Loans then outstanding constitutes of the aggregate principal amount of all Term Loans then outstanding)."
"Termination Date: the earlier to occur of (a) the Stated Maturity and (b) the acceleration of the Term Loans. In the event that one or more Extensions are effected in accordance with Section 2.27, then the Termination Date of each tranche of Term Loans shall be determined based on the respective Stated Maturity applicable thereto (except in cases where clause (b) of the preceding sentence is applicable)."
"(b) As used herein and in the other Loan Documents, and any certificate or other document made or delivered pursuant hereto or thereto, (i) the words include, includes and including shall be deemed to be followed by the phrase without limitation, (ii) the word incur shall be construed to mean incur, create, issue, assume, become liable in respect of or suffer to exist (and the words incurred and incurrence shall have correlative meanings) and (iii) 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, leasehold interests and contract rights."
"(d) The entries made in the Register and the accounts of each Lender maintained pursuant to Sections 2.8(b) and (c) shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded absent manifest error; provided, however, that the failure of any Lender or the Administrative Agent to maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of the Borrower to repay (with applicable interest) the Term Loans made to the Borrower by such Lender in accordance with the terms of this Agreement."
"(b) At the time of the effectiveness of any Repricing Transaction that (x) results in any prepayment of Term Loans, or (y) effects any amendment of this Agreement resulting in a Repricing Transaction and (in either case) is consummated prior to August 3, 2017, the Borrower agrees to pay to the Administrative Agent, for the ratable account of each applicable Lender, a fee in an amount equal to, without duplication, (I) in the case of clause (x), a prepayment premium of 1% of the principal amount of the Term Loans being prepaid and (II) in the case of clause (y), a payment equal to 1% of the aggregate amount of the applicable Term Loans outstanding immediately prior to such amendment and subject to such Repricing Transaction. Such fees shall be due and payable upon the date of the effectiveness of such Repricing Transaction."
"2.14. Change of Control Prepayment. If a Change of Control Triggering Event occurs, the Borrower shall make an offer to prepay the entire principal amount of the Term Loans (the Change of Control Prepayment Offer) at 101% of the aggregate principal amount thereof and the Borrower shall notify the Administrative Agent in writing of the Change of Control Prepayment Offer in writing within thirty (30) days after the date of such Change of Control Triggering Event. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment and include the payment date, which shall be no earlier than 30 days and no later than 60 days from the date of such notice is mailed (the Change of Control Payment Date). The Administrative Agent will promptly notify each Lender of the contents of any such prepayment notice and of such Lenders pro rata share of the prepayment. Any Lender may elect, by delivering not less than three (3) Business Days prior to the Change of Control Payment Date, a written notice (such notice, an Acceptance Notice) that any change of control prepayment be made with respect to all or any portion of the Term Loans held by such Lender pursuant to this Section 2.14. If a Lender fails to deliver an Acceptance Notice within the time frame specified above, any such failure will be deemed a rejection of the Change of Control Prepayment Offer as to all outstanding Term Loans of such Lender. Any prepayment of Term Loans pursuant to this Section 2.14 shall be applied to the remaining scheduled installments of the Term Loans as directed by the Borrower"
"(a) The Borrower may elect from time to time to convert Eurodollar Loans to Base Rate Loans by giving the Administrative Agent prior irrevocable notice, in substantially the form attached hereto as Exhibit F, of such election no later than 12:00 Noon, New York City time, on the Business Day preceding the proposed conversion date; provided that any such conversion of Eurodollar Loans may only be made on the last day of an Interest Period with respect thereto. The Borrower may elect from time to time to convert Base Rate Loans to Eurodollar Loans by giving the Administrative Agent prior irrevocable notice of such election no later than 12:00 Noon, New York City time, on the third (3rd) Business Day preceding the proposed conversion date (which notice shall specify the length of the initial Interest Period therefor); provided that no Base Rate Loan may be converted into a Eurodollar Loan when any Event of Default has occurred and is continuing and the Administrative Agent or the Required Lenders have determined in its or their sole discretion not to permit such conversions. Upon receipt of any such notice, the Administrative Agent shall promptly notify each relevant Lender thereof."
"(b) Any Eurodollar Loan may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Borrower giving irrevocable notice to the Administrative Agent, in substantially the form attached hereto as Exhibit F, in accordance with the applicable provisions of the term Interest Period set forth in Section 1.1, of the length of the next Interest Period to be applicable to such Term Loans; provided that no Eurodollar Loan may be continued as such when any Event of Default has occurred and is continuing and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such continuations; and provided further that if the Borrower shall fail to give any required notice as described above in this paragraph or if such continuation is not permitted pursuant to the preceding proviso such Eurodollar Loans shall be automatically converted to Base Rate Loans on the last day of such then expiring Interest Period. Upon receipt of any such notice, the Administrative Agent shall promptly notify each relevant Lender thereof."
"(b) Except as otherwise provided herein (including Sections 2.14, 2.27 and 2.28), each payment (including each prepayment) by the Borrower on account of principal or interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Lenders."
"(d) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lenders share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under this Agreement, on demand, from the Borrower, such recovery to be without prejudice to the rights of the Borrower against any such Lender."
"(a) If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority, in each case, made subsequent to the Closing Date (including, but not limited to, the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Basel Committee on Bank Supervision or United States regulatory authorities, in each case, as pursuant to Basel III and, in each case, all requests, rules, guidelines or directives thereunder or issued in connection therewith):"
"(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; or"
"in Section 881(c)(3)(B) of the Code, or (C) a controlled foreign corporation described in Section 881(c)(3)(C) of the Code, and that no payments in connection with the Loan Documents are effectively connected with such Lenders conduct of a U.S. trade or business and (y) two duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any successor forms),"
"2.20. Indemnity. The Borrower agrees to indemnify each Lender for, and to hold each Lender harmless from, any loss or expense that such Lender may sustain or incur as a consequence of (a) default by the Borrower in making a borrowing of, conversion into or continuation of Eurodollar Loans after the Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (b) default by the Borrower in making any prepayment of or conversion from Eurodollar Loans after the Borrower has given a notice thereof in accordance with the provisions of this Agreement or (c) the making of a prepayment or conversion of Eurodollar Loans on a day that is not the last day of an Interest Period with respect thereto. Such indemnification may include an amount equal to the excess, if any, of (i) the amount of interest that would have accrued on the amount so prepaid, or not so borrowed, converted or continued, for the period from the date of such prepayment or of such failure to borrow, convert or continue to the last day of such Interest Period (or, in the case of a failure to borrow, convert or continue, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Loans provided for herein (excluding, however, the Applicable Margin included therein, if any) over (ii) the amount of interest (as reasonably determined by such Lender) that would have accrued to such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank eurodollar market. A certificate as to any amounts payable pursuant to this Section submitted to the Borrower by any Lender shall be conclusive in the absence of manifest error. Notwithstanding anything to the contrary in this Section 2.20, the Borrower shall not be required to compensate a Lender pursuant to this Section 2.20 for any amounts incurred more than 180 days prior to the date that such Lender notifies the Borrower of such Lenders intention to claim compensation therefor; provided that, if the circumstances giving rise to such claim have a retroactive effect, then such 180 days period shall be extended to include the period of such retroactive effect. This covenant shall survive the termination of this Agreement and the payment of the Term Loans and all other amounts payable hereunder."
"2.21. Change of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 2.18 or 2.19(a) with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Term Loans affected by such event with the object of avoiding the consequences of such event; provided that such designation is made on terms that, in the good faith judgment of such Lender, cause such Lender and its lending office(s) to suffer no economic, legal or regulatory disadvantage; and provided further that nothing in this Section shall affect or postpone any of the obligations of the Borrower or the rights of any Lender pursuant to Section 2.18 or 2.19(a)."
"(b) With respect to all Extensions consummated by the Borrower pursuant to this Section 2.27, (i) such Extensions shall not constitute voluntary or mandatory payments or prepayments for purposes of Section 2.13 or 2.14 and (ii) no Extension Offer is required to be in any minimum amount or any minimum increment, provided that the Borrower may at its election specify as a condition (a Minimum Extension Condition) to consummating any such Extension that a minimum amount (to be determined and specified in the relevant Extension Offer in the Borrowers discretion) of Term Loans of any or all applicable tranches be tendered. The Administrative Agent and the Lenders hereby consent to the Extensions and the other transactions contemplated by this Section 2.27(b) (including, for the avoidance of doubt, payment of any interest or fees in respect of any Extended Term Loans on such terms as may be set forth in the relevant"
"(c) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrower as may be necessary in order establish new tranches or sub-tranches in respect of Term Loans so extended and such technical amendments as may be necessary in connection with the establishment of such new tranches or sub- tranches, in each case on terms consistent with this Section 2.27. Notwithstanding the foregoing, the Administrative Agent shall have the right (but not the obligation) to seek the advice or concurrence of the Required Lenders with respect to any matter contemplated by this Section 2.27(c) and, if the Administrative Agent seeks such advice or concurrence, the Administrative Agent shall be permitted to enter into such amendments with the Borrower in accordance with any instructions actually received by such Required Lenders and shall also be entitled to refrain from entering into such amendments with the Borrower unless and until it shall have received such advice or concurrence; provided, however, that whether or not there has been a request by the Administrative Agent for any such advice or concurrence, all such amendments entered into with the Borrower by the Administrative Agent hereunder shall be binding and conclusive on the Lenders. Without limiting the foregoing, in connection with any Extensions, the respective Loan Parties shall (at their expense) amend (and the Collateral Agent is hereby directed to amend) any Mortgage that has a maturity date prior to the then latest Stated Maturity so that such maturity date is extended to the then latest Stated Maturity (or such later date as may be advised by local counsel to the Collateral Agent)."
"(d) Representations and Warranties. All representations and warranties contained in this Agreement shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on and as of such date (unless stated to relate to a specific earlier date, in which case, such representations and warranties shall be true and correct in all material respects as of such earlier date) (it being understood that any representation or warranty that is qualified as to materiality or Material Adverse Effect shall be correct in all respects)."
"(n) Required Intercreditor Actions. The Administrative Agent shall have received an executed copy of each of the Required Intercreditor Actions. For purposes of this Agreement, the Required Intercreditor Actions means, collectively, delivery of a joinder to the Collateral Agency and Intercreditor Agreement, delivery to the Collateral Agent of an officers certificate describing the Obligations under this Agreement, stating that the Borrower intends to enter into this Agreement as additional secured debt and designating the Obligations as First Lien Debt for the purposes of the Collateral Agency and Intercreditor Agreement, delivery by the Borrower and the Administrative Agent to the Collateral Agent of notice specifying the name and address of the Administrative Agent as the Secured Debt Representative for the Obligations under this Agreement and the Loan Documents, and the execution by the Borrower, the Guarantors, the Administrative Agent and the Collateral Agent of the Acknowledgement."
"(b) if at any time any Mortgaged Property is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agent) as a special flood hazard area, then the Borrower shall, or shall cause the applicable Loan Party to, (i) maintain, or cause to be maintained, with a financially sound a reputable insurer, flood insurance in an amount and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (ii) deliver to the Collateral Agent evidence of such compliance in form and substance reasonably acceptable to the Collateral Agent."
"(v)any incurrence of Indebtedness that constitutes First Lien Debt (A) resulting from the drawing of, or reimbursement obligations under, any letters of credit or similar instruments or (B) resulting from borrowings under any undrawn and unutilized commitments to lend such Indebtedness, in each case, that were (i) in existence as of the Closing Date or (ii) included in any calculation of the amount of First Lien Debt outstanding pursuant to Section 6.1(b) hereof in connection with an incurrence of First Lien Debt pursuant to Section 6.1(a) hereof; and, in either case, any Permitted Replacement Commitments that replaced such letters of credit, similar obligations and commitments;"
"(iii) the Borrower or the applicable Guarantor shall cause a title company approved by the Collateral Agent to have delivered to the Collateral Agent an endorsement to each title insurance policy then in effect for the benefit of the Secured Parties, date down(s) or other evidence reasonably satisfactory to the Collateral Agent (which may include a new title insurance policy) (each such delivery, a Title Datedown Product), in each case insuring that (I) the priority of the Lien of the applicable Mortgage(s) as security for the Obligations has not changed, (II) since the date of the Title Datedown Product delivered most recently prior to (and not in connection with) such additional Indebtedness, there has been no change in the condition of title and (III) there are no intervening liens or encumbrances which may then or thereafter take priority over the Lien of the applicable Mortgage(s), in each case other than with respect to Permitted Liens;"
"(v) the Borrower or the applicable Guarantor shall, upon the request of the Collateral Agent, deliver to the approved title company, the Collateral Agent and/or all other relevant third parties all other items reasonably necessary to maintain the continuing priority of the Lien of the Mortgages as security for the Obligations."
"(e) (i) default under any other mortgage, indenture, agreement or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness of any Loan Party (or the payment of which is guaranteed by any Loan Party), whether such Indebtedness or Guarantee now exists, or is created after the date of this Agreement, if that default:"
"(g) except as permitted by this Agreement or the Guarantee and Collateral Agreement, any Guaranty Reimbursement Obligation of a Significant Subsidiary ceases, for any reason, to be in full force and effect (other than in accordance with its terms), or any Significant Subsidiary that is a Guarantor denies or disaffirms in writing its obligations under its Guaranty Reimbursement Obligation;"
"(h) the Lien subordination provisions in favor of the Lenders or any other provision of the Collateral Agency and Intercreditor Agreement shall cease for any reason to be valid (other than by its express terms) and, in the case of any provision of the Collateral Agency and Intercreditor Agreement other than the Lien subordination provisions in favor of the Lenders, the result thereof is that the interests of the Lenders are materially and adversely affected, or any Loan Party shall assert in writing that the Lien subordination provisions in favor of the Lenders or any such other provision of the Collateral Agency and Intercreditor Agreement shall not for any reason be valid (other than by its express terms);"
"In the case of an Event of Default specified in clause (i) or (j) of this Section 7.1 with respect to the Borrower, all outstanding Term Loans will become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the Required Lenders may declare all the Term Loans to be due and payable immediately. Upon any such declaration, the Term Loans shall become due and payable immediately. The Required Lenders by written notice to the Administrative Agent may, on behalf of all of the Lenders, rescind an acceleration and its consequences, if the rescission would not conflict with any judgment or decree and if all existing Events of Default (except nonpayment of principal, interest or premium that has become due solely because of the acceleration) have been cured or waived."
"8.5. Notice of Default. The Agents shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default unless such Agent has received written notice from a Lender or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a notice of default. In the event that any Agent receives such a notice, it shall give notice thereof to the Lenders. The Agents shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by this Agreement or any other Loan Document, all Lenders); provided that unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as the Administrative Agent shall deem advisable in the best interests of the Lenders."
"8.7. Indemnification. The Lenders agree to indemnify the Agents in their capacity as such (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their respective Term Percentage in effect on the date on which indemnification is sought under this Section 8.7 (or, if indemnification is sought after the date upon which the Term Commitments shall have terminated and the Term Loans shall have been paid in full, ratably in accordance with such Term Percentage immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Term Loans) be imposed on, incurred by or asserted against such Agent, in any way relating to or arising out of, the Term Commitments, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any"
"(d) Each of the Loan Parties understands that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution and agrees and assumes the risks associated with such electronic distribution, except to the extent caused by the willful misconduct or gross negligence of the Administrative Agent, as determined by a final, non-appealable judgment of a court of competent jurisdiction."
"9.3. No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative Agent or any Lender, any right, remedy, power or privilege hereunder or under the other Loan Documents 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. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law."
"(C) the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an administrative questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its Affiliates and their related parties or their respective 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; and"
"(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) below, from and after the effective date specified in each Assignment and Acceptance the Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lenders rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and 9.5 for the period of time in which it was a Lender hereunder. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.6 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section."
"(ii) 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 related interest amounts) of each participants interest in the Term Loans or other obligations under this Agreement (the Participant Register). The entries in a 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. No Lender shall have any obligation to disclose all or any portion of a Participant Register to any Person (including the identity of any Participant or any information relating to a Participants interest in any Loans) except to the extent that such disclosure is necessary to establish that such Loan is in registered form under Section 5f.103(c) of the United States Treasury Regulations or, if different, under Sections 871(h) or 881(c) of the Code."
"(b) In addition to any rights and remedies of the Lenders provided by law and subject to the terms of the Guarantee and Collateral Agreement, each Lender shall have the right, without notice to the Borrower, any such notice being expressly waived by the Borrower to the extent permitted by applicable law, upon any Obligations becoming due and payable by the Borrower (whether at the stated maturity, by acceleration or otherwise), to apply to the payment of such Obligations, by setoff or otherwise, any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender, any affiliate thereof or any of their respective branches or agencies to or for the credit or the account of the Borrower. Each Lender agrees promptly to notify the Borrower and"
"(a) Subject to clause (b)(iii) of this Section 9.12, each party hereto hereby irrevocably and unconditionally submits for itself and its property in any legal action or proceeding relating to this Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive general jurisdiction of the courts of the State of New York, the courts of the United States for the Southern District of New York, and appellate courts from any thereof, in each case that are located in the Borough of Manhattan, The City of New York;"
(i) agrees that any such action or proceeding shall be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
"(b) Subject to the terms of the Collateral Agency and Intercreditor Agreement, at such time as the Term Loans and the other obligations under the Loan Documents (other than obligations under or in respect of Swap Agreements) shall have been paid in full, the Collateral shall be released from the Liens created by the Security Documents, and the Security Documents and all obligations (other than those expressly stated to survive such termination) of the Administrative Agent, the Collateral Agent and each Loan Party under the Security Documents shall terminate, all without delivery of any instrument or performance of any act by any Person."
"9.17. U.S.A. Patriot Act. Each Lender that is subject to the requirements of the Patriot Act hereby notifies each Loan Party that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of such Loan Party and other information that will allow such Lender to identify such Loan Party in accordance with the Patriot Act. The Borrower shall, and shall cause each of its Subsidiaries to, provide, to the extent commercially reasonable, such information and take such actions as are reasonably requested by each Lender and the Administrative Agent to maintain compliance with the Patriot Act."
"Reference is hereby made to the Credit Agreement, dated as of the date hereof (in effect on the date hereof, the Credit Agreement), among Calpine Corporation (the Borrower), the Lenders party thereto, Morgan Stanley Senior Funding, Inc., as Administrative Agent and MUFG Union Bank, N.A., as Collateral Agent. Unless otherwise defined herein, capitalized terms are used herein as defined in the Credit Agreement."
"1.The representations and warranties of each Certifying Loan Party set forth in each of the Loan Documents to which it is a party are true and correct in all material respects on and as of the date hereof with the same effect as if made on and as of the date hereof (unless stated to relate to a specific earlier date, in which case, such representations and warranties were true and correct in all material respects as of such earlier date) (it being understood that any representation or warranty that is qualified as to materiality or Material Adverse Effect shall be correct in all respects)."
"5.Attached hereto as Exhibit A are true and complete copies of certain resolutions duly adopted by the board of directors or other applicable governing body of such Certifying Loan Parties as of the date hereof; such resolutions have not in any way been amended, modified, revoked or rescinded, have been in full force and effect since their adoption to and including the date hereof and are now in full force and effect and are the only corporate, limited liability company or partnership proceedings, as applicable, of each Certifying Loan Party now in force relating to or affecting the matters referred to therein."
"1. All representations and warranties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the Closing Date with the same effect as if made on and as of such date (unless stated to relate to a specific earlier date, in which case, such representations and warranties are true and correct in all material respects as of such earlier date) (it being understood that any representation or warranty that is qualified as to materiality or Material Adverse Effect is correct in all respects)."
"The Borrower agrees that, if prior to the Closing Date any of the foregoing certifications shall cease to be true and correct, the Borrower shall forthwith notify the Administrative Agent thereof in writing (any such notice, a Non-Compliance Notice). Except to the extent, if any, that prior to the Closing Date the Borrower shall deliver a Non-Compliance Notice to the Administrative Agent, each of the foregoing certifications shall be deemed to be made additionally on the date of issuance as if made on such date."
"Reference is hereby made to the Credit Agreement, dated as of February 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the Credit Agreement), among Calpine Corporation (the Borrower), the Lenders party thereto, Morgan Stanley Senior Funding, Inc., as Administrative Agent and MUFG Union Bank, N.A., as Collateral Agent. Unless otherwise defined herein, capitalized terms are used herein as defined in the Credit Agreement."
"2.The Assignor (a) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Credit Agreement or with respect to the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement, any other Loan Document or any other instrument or document furnished pursuant thereto, other than that the Assignor has not created any adverse claim upon the interest being assigned by it hereunder and that such interest is free and clear of any such adverse claim and (b) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower, any of its Affiliates or any other obligor or the performance or observance by the Borrower, any of its Affiliates or any other obligor of any of their respective obligations under the Credit Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto."
"6.From and after the Effective Date, (a) the Assignee shall be a party to the Credit Agreement and, to the extent provided in this Assignment and Acceptance, have the rights and obligations of a Lender thereunder and under the other Loan Documents and shall be bound by the provisions thereof (including, without limitation, the provisions of Section 8.22 of the Collateral Agency and Intercreditor Agreement and Section 8.6(b) of the Guarantee and Collateral Agreement) and (b) the Assignor shall, to the extent provided in this Assignment and Acceptance, relinquish its rights and be released from its obligations under the Credit Agreement."
"Reference is made to the CREDIT AGREEMENT, dated as of February 3, 2017 (the Agreement), among CALPINE CORPORATION, a Delaware corporation (the Borrower), MORGAN STANLEY SENIOR FUNDING, INC., , as administrative agent (in such capacity and including any successors in such capacity, the Administrative Agent), MUFG UNION BANK, N.A., as collateral agent (in such capacity and including any successors in such capacity, the Collateral Agent and together with the Administrative Agent, the Agents), and each of the financial institutions from time to time party hereto (collectively, the Lenders). Capitalized terms used herein but not otherwise defined shall have the meaning given to such term in the Agreement."
"Pursuant to the provisions of Section 2.19(e) of the 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 Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as amended, (the Code), (iii) it is not a ten percent shareholder of the Borrower within the meaning of Code Section 881(c)(3)(B), (iv) it is not a controlled foreign corporation described in Section 881(c)(3)(C) of the Code, and (v) no payments in connection with any Loan Document are effectively connected with a United States trade or business conducted by the undersigned."
"The undersigned has furnished the Administrative Agent and the Borrower with Internal Revenue Service Form W-8IMY accompanied by one of the following forms from each of its partners/members claiming the portfolio interest exemption: (a) an Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable or (b) an Internal Revenue Service Form W-8IMY accompanied by an Internal Revenue Service 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 the Borrower and the Administrative Agent in writing and (2) the undersigned shall have at all times furnished the 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."
"Pursuant to the provisions of Section 2.19(e) and Section 9.6(c) of the 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 Internal Revenue Code of 1986, as amended, (the Code), (iii) it is not a ten percent shareholder of the Borrower within the meaning of Code Section 881(c)(3)(B), (iv) it is not a controlled foreign corporation described in Section 881(c)(3)(C) of the Code, and (v) no payments in connection with any Loan Document are effectively connected with a United States trade or business conducted by the undersigned."
"Notification Procedures. The Auction Manager will calculate the Applicable Threshold Price and post the Applicable Threshold Price and proration factor onto an internet site (including an IntraLinks, SyndTrak or other electronic workspace) in accordance with the Auction Managers standard dissemination practices by 4:00 p.m. New York time on the same Business Day as the date the Return Bids were due (as such due date may be extended in accordance with this Exhibit I). The Auction Manager will insert the principal amount of Term Loans of the applicable tranche to be assigned and the applicable settlement date into each applicable Auction Assignment and Acceptance received in connection with a Qualifying Bid. Upon the request of the submitting Lender, the Auction Manager will promptly return any Auction Assignment and Acceptance received in connection with a Return Bid that is not a Qualifying Bid."
"Additional Procedures. Once initiated by an Auction Notice, the Borrower may withdraw an Auction by prior written notice to the Administrative Agent. Furthermore, in connection with any Auction with respect to a particular tranche of Term Loans, upon submission by a Lender of a Return Bid, such Lender will not have any withdrawal rights. Any Return Bid (including any component bid thereof) delivered to the Auction Manager may not be modified, revoked, terminated or cancelled by a Lender unless otherwise agreed by the Borrower. However, an Auction may become void if the conditions to the purchase of Term Loans of the applicable tranche by the Borrower required by the terms and conditions of Section 2.28 of the Credit Agreement are not met. The purchase price in respect of each Qualifying Bid for which purchase by the Borrower is required in accordance with the foregoing provisions shall be paid directly by the Borrower to the respective assigning Lender on a settlement date as determined jointly by the Borrower and the Auction Manager (which shall be not later than ten (10) Business Days after the date Return Bids are due). The Borrower shall execute each applicable Auction Assignment and Acceptance received in connection with a Qualifying Bid."
"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 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."
"Orderly Liquidation Value means either (a) the estimated amount expressed in Dollars which the Compressor Equipment that is the subject of the Approved Appraisers report would typically realize, which may consist of one or more privately negotiated sales, properly advertised and professionally managed, by a seller obligated to sell the subject Compressor Equipment over a period of between six and nine months from the effective date of such Approved Appraisers report or (b) in the Administrative Agents discretion, such other definition of orderly liquidation value as proposed by an Approved Appraiser and accepted by the Administrative Agent in its reasonable discretion."
"Subject to Section 10.21, 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."
"(iv) At the time of and immediately after giving effect to such Credit Extension (or any renewal of a Letter of Credit as part of such Credit Extension) and the application of the proceeds thereof, the consolidated cash and Cash Equivalents (other than (i) any cash set aside in a deposit account in Argentina, Canada or Mexico in the ordinary course of business, (ii) any cash amounts from the issuances of Equity Interests set aside for repurchases of Senior Notes in accordance with Section 7.12 or (iii) any cash amounts from the issuances of Equity Interests set aside to consummate one or more acquisitions otherwise permitted by the Loan Documents and occurring within 90 days after the applicable such issuance of Equity Interests) balance of the Parent Borrower shall not exceed an amount equal to $35,000,000."
"6.19. Delivery of Appraisal. Deliver, or cause to be delivered, by June 30, 2016 (and on the annual anniversary thereof) (or, in each case, such later date agreed upon by the Administrative Agent in its sole discretion), to the Administrative Agent an appraisal report from an Approved Appraiser with respect to the Compressor Equipment, in form and substance reasonably satisfactory to the Administrative Agent (it being understood that (a) such appraisal shall, among other things, provide reasonable detail on (i) fair market values of the Compressor Equipment and (ii) Orderly Liquidation Value of the Compressor Equipment and (b) the first appraisal report delivered hereunder shall be conducted on the basis of field exams while subsequent appraisal reports shall, regardless of whether a field exam is completed, be based on data collected and verified no more than thirty (30) days prior to delivery of such appraisal report); provided that, the Administrative Agent may request one (1) additional appraisal report from an Approved Appraiser otherwise consistent with the forgoing requirements in between each annual delivery made pursuant to this Section 6.19; provided further that, if an Event of Default has occurred and is continuing, the Administrative Agent may request an appraisal report from an Approved Appraiser with respect to the Compressor Equipment at any time from time to time. Notwithstanding anything else to the contrary herein, the Parent Borrower agrees to reimburse all reasonable fees, costs and expenses of the Approved Appraiser in connection with delivery of the appraisals required hereunder."
"Section 10.21 Acknowledgement and Consent to Bail-In of EEA Financial Institutions. 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:"
"Reference is made to that certain Credit Agreement, dated as of August 4, 2014 (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the Credit Agreement; the terms defined therein being used herein as therein defined), among CSI COMPRESSCO LP (F/K/A COMPRESSCO PARTNERS, L.P.) (Compressco LP or Parent Borrower) and CSI COMPRESSCO SUB INC. (F/K/A COMPRESSCO PARTNERS SUB, INC.) (Sub Inc.) (collectively, Compressco LP and Sub Inc., the Borrowers), BANK OF AMERICA, N.A., as administrative agent and collateral agent (the Administrative Agent), each Lender from time to time party thereto and the other Persons party thereto."
"1. Attached hereto as Schedule 1 are the year-end audited financial statements required by Section 6.01(a) of the Credit Agreement for the fiscal year of Parent Borrower ended as of the above date, together with the report and opinion of a Registered Public Accounting Firm of nationally recognized standing reasonably acceptable to the Administrative Agent and an attestation report of such Registered Public Accounting Firm as to Parent Borrowers internal controls pursuant to Section 404 of Sarbanes-Oxley. "
"$75,000,000 (1) Fifty percent (50%) of the amounts set forth for each of fiscal years 2017 and 2018 that are not expended in the fiscal year for which it is permitted, may, in each case, be carried over for expenditure in the immediately following fiscal year; provided however that, if any such amount is so carried over for a particular fiscal year, (a) it will be deemed used in the applicable immediately following fiscal year (whether or not so used) and (b) it may not be carried over to any subsequent fiscal year."
"AMENDMENT NO. 1, dated as of July1, 2015 (this Amendment), among JELD-WEN Holding, inc., an Oregon corporation (Holdings), JELD-WEN, inc., an Oregon corporation (the Company), JELD-WEN of Canada, Ltd., an Ontario corporation (JW Canada), the Subsidiary Guarantors (this and each other capitalized term used herein without definition having the meaning assigned to such term in the Credit Agreement described below), Wells Fargo Bank, National Association, as Administrative Agent, U.S. Issuing Bank, Canadian Issuing Bank and Swingline Lender (in such capacities, the Agent), and the Lenders party hereto."
"(c) All representations and warranties of each Loan Party contained in Section3 of the Credit Agreement or any other Loan Document are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Amendment Effective Date after giving effect thereto and the consummation of the transactions contemplated thereby taking place on or prior to the Amendment Effective Date (including the Term Loan Transactions), 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) as of such earlier date, and except that, the representations and warranties contained in Sections 3.1(a) and 3.1(b) of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section5.1(a) and (b), respectively, prior to the Amendment Effective Date;"
"Section9\. Acknowledgement and Affirmation. Each Loan Party party hereto hereby expressly acknowledges, (i)all of its obligations under the Guarantee and the Security Documents to which it is a party are reaffirmed and remain in full force and effect on a continuous basis, (ii)its grant of security interests pursuant to the Security Documents are reaffirmed and remain in full force and effect after giving effect to this Amendment and (iii)except as expressly set forth herein, the execution of this Amendment shall not operate as a waiver of any right, power or remedy of the Agent or Lenders, constitute a waiver of any provision of any of the Loan Documents or serve to effect a novation of the Obligations."
"WHEREAS, the Borrowers have requested that the Lenders, the Swingline Lender and each Issuing Bank extend credit to the Borrowers to (a)finance the Transactions, (b)pay any fees, premiums, costs and expenses in connection with the Transactions, (c)provide working capital and funds for other general corporate purposes and (d)finance other transactions permitted by this Agreement;"
"Additional Amendment No.1 Distributions: additional Restricted Payments, directly or indirectly, to the Sponsor and the other equity holders of Holdings, including holders of equity awards or equity-based awards, and/or payments in lieu thereof or related thereto, in an aggregate amount not to exceed $50,000,000 (less the amount of Term B-1 Loans (as defined in the Term Loan Credit Agreement) used by the Company Borrower and/or its Restricted Subsidiaries to consummate certain acquisitions permitted hereunder (including, without limitation, any Approved European Acquisition)); provided, that the proceeds of Advances may not be used to finance any Additional Amendment No.1 Distribution unless the Borrowers satisfy the requirements set forth in Section6.3(b)(vii) in connection therewith."
"Affiliate: with respect to any specified Person, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, control (including, with correlative meanings, the terms controlling, controlled by and under common control with), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise."
"Appraised Value: (a)with respect to Eligible Equipment, the appraised orderly liquidation value, net of costs and expenses to be incurred in connection with any such liquidation, as determined from time to time by an independent appraiser engaged by the Administrative Agent and, other than during an Enhanced Collateral Monitoring Period or if a Default or Event of Default has occurred and is continuing, reasonably satisfactory to the Borrower Representative, and (b)with respect to any of the Eligible Real Property Collateral, the fair market value of such Eligible Real Property Collateral as set forth in the most recent appraisal of such Eligible Real Property Collateral as determined from time to time by an independent appraiser engaged by the Administrative Agent which appraisal shall assume, among other things, a marketing time of not greater than twelve (12)months or less than three (3)months."
"(t) any Disposition of non-core assets (as reasonably identified by the Borrower Representative in good faith in consultation with the Administrative Agent) acquired pursuant to any Permitted Acquisition by the Company or any Restricted Subsidiary; provided, that (i)the value of such non-core assets does not exceed 50.0% of the cash consideration paid in connection with such Permitted Acquisition, (ii)not less than 50.0% of the consideration payable to the Company and the Restricted Subsidiaries in connection with such Disposition is in the form of cash or Cash Equivalents (provided, further, that for purposes of this clause (ii), any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this proviso that is at that time outstanding, is not in excess of the greater of $20,000,000 and 1.0% of Total Assets, with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash), (iii)the consideration payable to the Company and the Restricted Subsidiaries in connection with such Disposition is not less than aggregate Fair Market Value thereof and (iv)no Event of Default has occurred or is continuing both before or after giving effect to such Disposition or would result therefrom;"
"Bank Product Obligations: (a)all obligations, liabilities, reimbursement obligations, fees, or expenses owing by any Group Member to any Bank Product Provider pursuant to or evidenced by a Bank Product Agreement and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, (b)all Hedge Obligations, and (c)all amounts that the Administrative Agent or any Lender is obligated to pay to a Bank Product Provider as a result of the Administrative Agent or such Lender purchasing participations from, or executing guarantees or indemnities or reimbursement obligations to, a Bank Product Provider with respect to the Bank Products provided by such Bank Product Provider to the Group Members. Anything to the contrary contained in the foregoing notwithstanding, the Bank Product Obligations shall exclude any Excluded Swap Obligation."
"Business Day: any day that is not a Saturday, Sunday or other day on which commercial banks in New York City and Illinois are authorized or required by law to remain closed; except, that, (a)when used in connection with a LIBOR Rate Loan or EURIBOR Loan, the term Business Day shall also exclude (i)any day on which banks are not open for dealings in deposits in the Applicable Currency in which interest on such LIBOR Rate Loan or EURIBOR Loan is calculated based on the LIBOR Rate or EURIBOR, as the case may be, (ii)any day which is not a TARGET Day (as determined by the Administrative Agent), and"
"(b) the lesser of (x)85% (or 90% during the Seasonal Advance Rate Period) of the Net Liquidation Percentage times the value (calculated at the lower of cost or market value consistent with the Borrowers historical accounting practices) of the Canadian Borrowers Eligible Finished Goods Inventory, and (y) ~~65~~ 70% (or 7 ~~0~~ 5% during the Seasonal Advance Rate Period) of the value (calculated at the lower of cost or market value consistent with the Borrowers historical accounting practices) of the Canadian Borrowers Eligible Finished Goods Inventory, plus"
"Notwithstanding anything to the contrary set forth herein, amounts included in the Canadian Borrowing Base pursuant to clause (c)above (after giving effect to the applicable advance rates and all reserves related to the Collateral described therein) shall not exceed $5,000,000 at any time (as such basket is reduced by all amounts included in the U.S. Borrowing Base pursuant to clause (c)of the definition thereof (after giving effect to the applicable advance rates and all reserves related to the Collateral described therein))."
"Canadian Collateral: all of the Collateral referred to in the Canadian Security Documents and all of the other property and assets that are, or are required under the terms hereof to be, subject to Liens in favor of the Administrative Agent for the benefit of the Canadian Secured Parties; provided, however, for the avoidance of doubt, such term shall not include any Excluded Assets."
"Canadian Revolving Lender: any Lender with a Canadian Revolving Commitment (or, following the termination of the Canadian Revolving Commitments, holding a portion of the outstanding Canadian Advances, Canadian Swingline Exposure, Canadian Special Advance Exposure and/or Canadian Letter of Credit Exposure) hereunder. A Canadian Revolving Lender shall be an Affiliate or a branch of a U.S. Revolving Lender or shall have a branch that is acting as a U.S. Revolving Lender."
"Canadian Security Documents: collectively, the Canadian Security Agreement and any additional pledge or security agreements or deeds of hypothec that create or purport to create a Lien on the Canadian Collateral in favor of the Administrative Agent for the benefit of the Canadian Secured Parties and any instruments of assignment or other instruments or agreements executed pursuant to the foregoing (including Depositary Bank Agreements and Lien Waivers executed by the Canadian Loan Parties)."
"Cash Dominion Period: a period commencing on the date (i)an Event of Default has occurred and/or (ii)Global Excess Availability (as defined below) has been less than the Level 1 Availability Trigger Amount for 5 consecutive Business Days and continuing until the date (x)all Events of Default, if any, have been waived in writing and (y)Global Excess Availability has been equal to or greater than the Level 1 Availability Trigger Amount for 30 consecutive days; provided that in the Administrative Agents Permitted Discretion, a Cash Dominion Period shall be deemed in effect at all times after a Cash Dominion Period has occurred and has been discontinued on 4 occasions in any calendar year or 8 occasions after the Closing Date."
"(3) certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers acceptances, in each case with maturities not exceeding one year, and overnight bank deposits, in each case with any commercial bank having capital and surplus in excess of $500,000,000, or the foreign currency equivalent thereof, and whose long-term debt is rated with an Investment Grade Rating by Moodys or S&P (or reasonably equivalent ratings of another internationally recognized ratings agency);"
(9) instruments equivalent to those referred to in clauses (1)through (7)above denominated in Euros or pounds sterling or any other foreign currency comparable in credit quality and tenor to those referred to above and customarily used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with (a)any business conducted by any Restricted Subsidiary organized in such jurisdiction or (b)any Investment in the jurisdiction where such Investment is made.
"(a) provision for taxes based on income or profits or capital, including state, franchise and similar taxes and foreign withholding taxes of the Company and its Restricted Subsidiaries paid or accrued during such period deducted (and not added back) in computing Consolidated Net Income, including an amount equal to the amount of tax distributions actually made to the holders of Capital Stock of the Company and its Restricted Subsidiaries or any direct or indirect parent of such Person in respect of such period in accordance with Section6.3(b)(xii), which shall be included as though such amounts had been paid as income taxes directly by the Company; plus"
"(j) any costs or expenses incurred by the Company or a Restricted Subsidiary 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 the Company or net cash proceeds of an issuance of Equity Interest of the Company (other than Disqualified Stock) to the extent deducted (and not added back) in computing Consolidated Net Income; plus"
"(10) any non-cash compensation charge or expense, including any such charge arising from grants of stock appreciation or similar rights, stock options, restricted stock or other rights, and any cash charges associated with the rollover, acceleration or payout of Equity Interests by management of the Company or any of its direct or indirect parent companies, including any expense resulting from the application of Statement of Financial Accounting Standards No.123R shall be excluded, provided that any subsequent settlement in cash shall reduce Consolidated Net Income for the period in which such payment occurs,"
"(11) any fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any acquisition, Investment, Asset Sale, issuance or repayment of Indebtedness, Equity Offering, refinancing transaction or amendment or modification of any debt instrument (in each case, including any such transactions consummated prior to the Closing Date and any such transaction undertaken but not completed) and any charges or non- recurring merger costs incurred during such period as a result of any such transaction shall be excluded,"
"(12) accruals and reserves that are established and not reversed within 12 months after the Closing Date that are so required to be established as a result of the Transactions (or within 12 months after the closing of any acquisition that are so required to be established as a result of such acquisition) in accordance with GAAP shall be excluded,"
"(13) an amount equal to the amount of tax distributions actually made to holders of Capital Stock of the Company or any direct or indirect parent company of the Company in respect of such period in accordance with Section6.3(b)(xii) shall be excluded as though such amounts had been paid as income taxes directly by the Company for such period,"
"Solely for purposes of calculating Consolidated EBITDA, the Consolidated Net Income of the Company and its Restricted Subsidiaries shall be calculated without deducting the income attributable to the minority equity interests of third parties in any non-Wholly Owned Restricted Subsidiary except to the extent of dividends declared or paid in respect of such period or any prior period on the shares of Capital Stock of such Restricted Subsidiary held by such third parties."
"Consolidated Non-Cash Charges: with respect to the Company and the Restricted Subsidiaries for any period, the aggregate depreciation, amortization (including amortization of intangibles, deferred financing fees, debt issuance costs, commissions, fees and expenses, expensing of any bridge, commitment or other financing fees, the non-cash portion of interest expense resulting from the reduction in the carrying value under purchase accounting of the Companys and the Restricted Subsidiaries outstanding Indebtedness and commissions, discounts, yield and other fees and charges but excluding amortization of prepaid cash expenses that were paid in a prior period), non- cash impairment, non-cash compensation, non-cash rent and other non-cash losses, charges and expenses of the Company and the Restricted Subsidiaries reducing Consolidated Net Income for such period on a consolidated basis and otherwise determined in accordance with GAAP; provided that if any non-cash charges referred to in this definition represent an accrual or reserve for potential cash items in any future period (to the extent instituted in accordance with GAAP), the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA in such future period to such extent paid."
"DDA: each checking, savings, deposit or demand deposit account maintained by any of the Loan Parties. All funds in each DDA (other than Excluded DDAs described in clauses (b)and (d)of the definition thereof) shall be conclusively presumed to be Collateral and proceeds of Collateral and the Administrative Agent and the Lenders shall have no duty to inquire as to the source of the amounts on deposit in any DDA."
"Debtor Relief Laws: the Bankruptcy Code of the United States, the BIA, the CCAA, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States, Canada or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally."
"thereafter, the interest rate then applicable to U.S. Advances of EURIBOR Loans (inclusive of the Applicable Margin applicable to EURIBOR Loans), (c)with respect to any amounts advanced under the Canadian Facility and denominated in Canadian Dollars, (x)for the first 3 days from and after the date the relevant payment is due, the Canadian Prime Rate, and (y)thereafter, the interest rate then applicable to Canadian Advances that are Canadian Prime Rate Loans (inclusive of the Applicable Margin applicable to Canadian Prime Rate Loans), and (d)with respect to any amounts advanced under the Canadian Facility and denominated in U.S. Dollars, (x)for the first 3 days from and after the date the relevant payment is due, the Canadian Base Rate, and (y)thereafter, the interest rate then applicable to Canadian Advances that are Canadian Base Rate Loans (inclusive of the Applicable Margin applicable to Canadian Base Rate Loans)."
"(h) Accounts with respect to which the Account Debtor is (i)the United States or Canada or any department, agency, or instrumentality of the United States or Canada (exclusive, however, of Accounts with respect to which the Borrowers have complied, to the reasonable satisfaction of the Administrative Agent, with the Assignment of Claims Act, 31 USC 3727 or the Financial Administration Act (Canada)), (ii)any state of the United States, or (iii)any province or territory of Canada,"
"(j) Accounts with respect to an Account Debtor whose total obligations owing to the Borrowers exceed (x)40% of all Eligible Accounts for Accounts with respect to which the Account Debtor is the Material Account Debtor Number 1 as defined in Schedule 1.1K, (y)35% of all Eligible Accounts for Accounts with respect to which the Account Debtor is Material Account Debtor Number 2 as defined in Schedule 1.1K, and (z)10% of all Eligible Accounts for Accounts with respect to which the Account Debtor is any other Person (such percentages, as applied to a particular Account Debtor, shall be subject to reduction by the Administrative Agent in its Permitted Discretion if the creditworthiness of such Account Debtor deteriorates), in each case to the extent of the obligations owing by such Account Debtor in excess of such percentage; provided, that, in each case, the amount of Eligible Accounts that are excluded because they exceed the foregoing percentage shall be determined by the Administrative Agent based on all of the otherwise Eligible Accounts prior to giving effect to any eliminations based upon the foregoing concentration limit; provided, further, that each of the percentages in clauses (x)and (y)above may be increased by up to 5% at the request of the Borrower Representative in the Administrative Agents Permitted Discretion so long as the Account Debtor related thereto maintains a long-term corporate debt rating equal to or higher than Baa1 (or the equivalent) by Moodys and BBB+ (or the equivalent) by S&P,"
Enhanced Collateral Reporting Period: a period commencing on the date Global Excess Availability shall have been less than the Level 1 Availability Trigger Amount for 5 consecutive Business Days and continuing until the date Global Excess Availability shall have been equal to or greater than the Level 1 Availability Trigger Amount for 30 consecutive days.
"Environmental Action: any written complaint, summons, citation, notice, directive, order, claim, litigation, investigation, judicial or administrative proceeding, judgment, letter, or other written communication from any Governmental Authority, or any third party involving violations of Environmental Laws or releases of Hazardous Materials (a)from any assets, properties, or businesses of any Borrower or any of its predecessors in interest, (b)from adjoining properties or businesses, or (c)from or onto any facilities which received Hazardous Materials generated by any Borrower or any of its predecessors in interest."
"Environmental Laws: any and all foreign, federal, state, provincial local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental Authority or other Requirements of Law (including common law) regulating, relating to or imposing liability or standards of conduct concerning Materials of Environmental Concern, human health and safety with respect to exposure to Materials of Environmental Concern, and protection or restoration of the environment as now or may at any time hereafter be in effect."
"Exchange Rate: on any date, as determined by Administrative Agent, the spot selling rate posted by Reuters on its website for the sale of the applicable currency for U.S. Dollars at approximately 11:00 a.m., Local Time, on such date; provided that, if, for any reason, no such spot rate is being quoted, the spot selling rate shall be determined by reference to such publicly available service for displaying exchange rates as may be reasonably selected by the Administrative Agent, or, in the event no such service is available, such spot selling rate shall instead be the rate reasonably determined by the Administrative Agent as the spot rate of exchange in the market where its foreign currency exchange operations in respect of the applicable currency are then being conducted, at or about 11:00 a.m., Local Time, on the applicable date for the purchase of the relevant currency for delivery two Business Days later."
"Excluded Swap Obligation: with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Loan Party of, or the grant by such Loan Party of a Lien 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 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 Section7.11 and any other keepwell, support or other agreement for the benefit of such Loan Party and any and all guarantees of such Loan Partys Swap Obligations by other Loan Parties) at the time the Guarantee of such Loan Party, or grant by such Loan Party of a Lien, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one Hedge Agreement, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Hedge Agreement for which such Guarantee or Lien is or becomes excluded in accordance with the first sentence of this definition."
"Existing Credit Agreement: the Companys existing Credit Agreement, dated as of September19, 2011 (as amended, amended and restated, supplemented or otherwise modified from time to time), among the Company and JELD-WEN of Europe, B.V., as borrowers, the guarantors from time to time party thereto, the lenders from time to time party thereto and Bank of America, as the administrative agent, collateral agent, the issuing bank and swingline lender thereunder."
"For purposes of calculating the Fixed Charge Coverage Ratio for any Test Period for which the beginning of such Test Period occurred prior to the Closing Date, the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to the Transactions for such Test Period as if the Transactions had occurred on the first day of the applicable Test Period."
"Agreement so as to reflect equitably such Accounting Changes with the desired result that the criteria for evaluating the Companys financial condition shall be the same after such Accounting Changes as if such Accounting Changes had not been made. Until such time as such an amendment shall have been executed and delivered by the Borrower Representative, the Administrative Agent and the Required Lenders, all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Changes had not occurred (other than for purposes of delivery of financial statements under Sections 5.1(a), (b)and (c)). Accounting Changes refers to changes in accounting principles (i)required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable, the SEC or (ii)otherwise proposed by the Borrower Representative to, and approved by, the Administrative Agent."
"Incur: with respect to any Indebtedness, issue, assume, guarantee, incur or otherwise become liable for; provided that any Indebtedness or Capital Stock of a Person existing at the time such person becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Person at the time it becomes a Subsidiary. Incurrence has a meaning correlative thereto."
"Intercreditor Agreement: the Lien Subordination and Intercreditor Agreement, dated as of the date hereof, among the Administrative Agent, the Term Loan Administrative Agent and the other parties thereto, as supplemented from time to time (the ABL-Term Intercreditor Agreement) or any amendment, supplement or modification thereto and any other intercreditor agreement executed in connection with any transaction requiring such agreement to be executed pursuant to the terms hereof and thereof, among the Administrative Agent, the Borrowers or any other Loan Parties and one or more Senior Representatives in respect of such Indebtedness or any other party, as the case may be, substantially on terms set forth on Exhibit G (except to the extent otherwise reasonably agreed by the Borrowers, the Administrative Agent and the Required Lenders, which changes will be deemed approved by each Lender (other than the Administrative Agent acting in its capacity as such) who has not objected within ten (10)Business Days following the posting thereof by the Administrative Agent to the Lenders (or such other time as reasonably agreed by the Administrative Agent and the Borrowers)) and such other terms that are reasonably satisfactory to the Administrative Agent, in each case, as amended, restated, supplemented, replaced or otherwise modified from time to time with the consent of the Administrative Agent (such consent not be unreasonably withheld, conditioned or delayed)."
"Investments: with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including guarantees), advances or capital contributions (excluding accounts receivable, trade credit and advances to customers and commission, travel and similar advances to officers, directors, employees and consultants made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and investments that are required by GAAP to be classified on the balance sheet of (excluding the footnotes) of such Person in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property. For purposes of the definition of Unrestricted Subsidiary and Section6.3:"
"Landlord Reserve: as to each location at which a Borrower has Inventory or books and records located and as to which a Lien Waiver has not been received by the Administrative Agent, a reserve in an amount equal to the greater of (a)the number of months rent for which the landlord will have, under applicable law, a Lien in the Inventory of such Borrower to secure the payment of rent or other amounts under the lease relative to such location, or (b)3 months rent under the lease relative to such location."
"LIBOR Rate in relation to any LIBOR Rate Loan, the rate per annum rate as reported on Reuters Screen LIBOR01 page (or any successor page or, if a successor is unavailable, such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at or about 11:00 a.m. (London time) 2 Business Days prior to the commencement of the requested Interest Period, for a term, and in an amount, comparable to the Interest Period and the amount of the LIBOR Rate Loan requested (whether as an initial LIBOR Rate Loan, as a continuation of a LIBOR Rate"
"Loan or as a conversion of a U.S. Base Rate Loan or Canadian Base Rate Loan, as applicable, to a LIBOR Rate Loan) by the Appropriate Borrowers in accordance with the terms hereof (and, if any such rate is below zero, the LIBOR Rate shall be deemed to be zero), which determination shall be made by the Administrative Agent and shall be conclusive in the absence of manifest error."
"Management Agreement: one or more management services agreements between the Company or any of its Affiliates and the Sponsor (or any of its Affiliates) in existence on the Closing Date, or a successor agreement between the Company or any of its Affiliates and the Sponsor, as may be amended, supplemented or otherwise modified from time to time; provided that such amendments, supplements or modifications are not materially adverse to the Lenders as reasonably determined in good faith by the Borrower Representative."
"Non-Guarantor Subsidiary: (a)any Subsidiary of Holdings (i)that is not a Wholly Owned Subsidiary (provided that such Subsidiary shall cease to be a Non-Guarantor Subsidiary at the time such Subsidiary becomes a Wholly Owned Subsidiary), (ii)that is an Immaterial Subsidiary (provided that such Subsidiary shall cease to be a Non-Guarantor Subsidiary at the time such Subsidiary is no longer an Immaterial Subsidiary), (iii)for which the provision of a Guarantee would be prohibited or restricted by applicable law (including financial assistance, fraudulent conveyance, preference, thin capitalization or other similar laws or regulations), whether on the Closing Date or thereafter or by contract existing on the Closing Date, or, if such Subsidiary is acquired after the Closing Date, by contract existing when such Subsidiary is acquired (so long as such prohibition is not created in contemplation of such acquisition), including any requirement to obtain the consent of any Governmental Authority or third party, (iv)for which the provision of a Guarantee would result in material adverse tax consequences (as reasonably determined by the Borrower Representative in consultation with the Administrative Agent), (v)for which"
(4) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or letters of credit issued pursuant to the request of and for the account of such Person in the ordinary course of its business which do not encumber ABL Priority Collateral;
"(5) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning, building code or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of such Person or to the ownership of its properties which were not Incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;"
"(12) Liens on specific items of inventory which is not ABL Priority Collateral or other goods and proceeds of any Person securing such Persons obligations in respect of bankers acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;"
"(33) Liens (i)in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business or (ii)on specific items of inventory or other goods and proceeds of any Person securing such Persons obligations in respect of bankers acceptances or letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods in the ordinary course of business;"
(34) Liens (i)of a collection bank arising under Section4-210 of the Uniform Commercial Code on items in the course of collection; (ii)attaching to a commodity trading account in the ordinary course of business; and (iii)in favor of a banking or other financial institution arising as a matter of law or under customary general terms and conditions encumbering deposits or other funds maintained with a financial institution (including the right of set-off) and which are within the general parameters customary in the banking industry;
"(f) the Administrative Agent shall have received a Phase I Environmental Site Assessment relating to such Real Property Collateral in accordance with ASTM Standard E1527-05, in form and substance reasonably satisfactory to the Administrative Agent, from an environmental consulting firm reasonably acceptable to the Administrative Agent, which report shall, to the extent possible, quantify any related costs and liabilities associated with such conditions and the Administrative Agent shall be satisfied with the nature and amount of any such matters;"
"Requirement of Law: as to any Person, any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject."
"Solvent: with respect to any Person and its Subsidiaries on a consolidated basis, means that as of any date of determination, (a)the sum of the fair value of the assets of such Person will, as of such date, exceed the sum of all debts of such Person as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b)the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the probable liability on existing debts of such Person as such debts become absolute and matured, as such quoted term is determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (c)such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct any business in which it is or is about to become engaged, (d)such Person is not an insolvent person as defined in the BIA and (e)such Person does not intend to incur, or believe or reasonably should believe that it will incur, debts beyond its ability to pay as they mature. For purposes of this definition, (i)debt means liability on a claim and (ii)claim means any (x)right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, subordinated, secured or unsecured or (y)right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured. For purposes of this definition, the amount of any contingent, unliquidated and disputed claim and any claim that has not been reduced to judgment at any time shall be computed as the amount that, in 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 (irrespective of whether such liabilities meet the criteria for accrual under the Financial Accounting Standards Board Statement of Financial Accounting Standards No.5)."
"Standard Letter of Credit Practice means, for any Issuing Bank, any domestic or foreign law or letter of credit practices applicable in the city in which such Issuing Bank issued the applicable Letter of Credit or, for its branch or correspondent, such laws and practices applicable in the city in which it has advised, confirmed or negotiated such Letter of Credit, as the case may be, in each case, (a)which letter of credit practices are of banks that regularly issue letters of credit in the particular city, and (b)which laws or letter of credit practices are required or permitted under ISP or UCP, as chosen in the applicable Letter of Credit."
"Subsidiary: with respect to any Person (1)any corporation, partnership, limited liability company, unlimited liability company, association, joint venture or other business entity (other than a partnership, joint venture or limited liability company) 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 at the time owned or controlled, directly or indirectly, by that Person or one or more of the"
"Transactions: (a)the consummation of the Tower Transaction, (b)the execution and delivery of the Loan Documents to be entered into on the Closing Date and, if applicable, the funding of the Loans on the Closing Date, (c)the execution and delivery of the Term Loan Credit Agreements and the funding of the loans thereunder on the Closing Date, (d)the Existing Debt Release/Repayment and (e)the payment of fees and expenses incurred in connection therewith."
"(d) the lesser of (x)85% (or 90% during the Seasonal Advance Rate Period) of the Net Liquidation Percentage times the value (calculated at the lower of cost or market value consistent with the Borrowers historical accounting practices) of the U.S. Borrowers Eligible Finished Goods Inventory, and (y) ~~65~~ 70% (or 7 ~~0~~ 5% during the Seasonal Advance Rate Period) of the value (calculated at the lower of cost or market value consistent with the Borrowers historical accounting practices) of the U.S. Borrowers Eligible Finished Goods Inventory; plus"
"U.S. Dilution: as of any date of determination, a percentage, based upon the experience of the immediately prior 12 months, that is the result of dividing the amount of (a)bad debt write-downs, discounts, advertising allowances, credits, or other dilutive items with respect to all of the U.S. Borrowers Accounts during such period, by (b)all of the U.S. Borrowers billings with respect to Accounts during such period."
"U.S. Revolving Commitment: with respect to each Lender, its U.S. Revolving Commitment, and, with respect to all Lenders, their U.S. Revolving Commitments, in each case as such U.S.Dollar amounts are set forth beside such Lenders name under the applicable heading on Schedule 1.1F or in the Assignment and Assumption or Incremental Amendment pursuant to which such Lender became a Lender under this Agreement, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of this Agreement."
"Wendt Trust Loan: Indebtedness extended by Holdings and the Company to The Richard Lester Wendt Revocable Living Trust pursuant to that certain Restructuring Credit Agreement, dated as of December28, 2011, by and among the Roderick Carl Wendt, as the personal representative of Richard Lester Wendt, Deceased and Roderick Carl Wendt, Nancy Jane Wendt and Mark Richard Wendt, as Co-Trustees of The Richard Lester Wendt Revocable Living Trust, Holdings and the Company (the Wendt Loan)."
"until any such amendments have been agreed upon and agreed to by the Required Lenders, the provisions in this Agreement shall be calculated as if no such adoption or Accounting Change had occurred. When used herein, the term financial statements shall include the notes and schedules thereto. Whenever the term Company, Borrowers or Loan Parties is used in respect of a financial covenant or a related definition, it shall be understood to mean the Company, the Borrowers or the Loan Parties and the Restricted Subsidiaries on a consolidated basis, unless the context clearly requires otherwise. Notwithstanding anything to the contrary contained herein, (a)all financial statements delivered hereunder shall be prepared, and all financial covenants contained herein shall be calculated, without giving effect to any election under the Statement of Financial Accounting Standards No.159 (or any similar accounting principle) permitting a Person to value its financial liabilities or Indebtedness at the fair value thereof, and (b)the term unqualified opinion as used herein to refer to opinions or reports provided by accountants shall mean an opinion or report that is (i)unqualified and (ii)does not include any explanation, supplemental comment, or other comment concerning the ability of the applicable Person to continue as a going concern or concerning the scope of the audit."
"(c) Notwithstanding anything to the contrary contained herein, for purposes of any determination under Article 5 and Article 6 and the calculation of compliance with any financial ratio for purposes of taking any action hereunder or other transaction, event or circumstance, or any other determination under any other provision of this Agreement not covered elsewhere in this Section1.7, (any of the foregoing, a specified transaction), in a currency other than Dollars, (i)the equivalent amount in Dollars of a specified transaction in a currency other than Dollars shall be calculated based on the rate of exchange quoted by a publicly available service for displaying exchange rates customarily referenced by the Administrative Agent for such foreign currency, as in effect at 11:00 a.m. (New York time) on the date of such specified transaction (which, in the case of any Restricted Payment, shall be deemed to be the date of the declaration thereof and, in the case of the incurrence of Indebtedness, shall be deemed to be on the date first committed); provided, that if any Indebtedness is incurred (and, if applicable, associated Lien granted) to refinance or replace other Indebtedness denominated in a currency other than Dollars, and the relevant refinancing or replacement would cause the applicable Dollar- denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing or replacement, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing or replacement Indebtedness (and, if applicable, associated Lien granted) does not exceed an amount sufficient to repay the principal amount of such Indebtedness being refinanced or replaced, except by an amount equal to (x)unpaid accrued interest and premiums (including tender premiums) thereon plus other reasonable and customary fees and expenses (including upfront fees and original issue discount) incurred in connection with such refinancing or replacement, (y)any existing"
"(e) If at any time following one or more fluctuations in the exchange rate of the Canadian Dollar against the U.S.Dollar, (a)the aggregate outstanding principal balance of Canadian Usage exceeds the limit of the Canadian Borrowing Base of the Canadian Borrowers or any other limitations hereunder based on U.S. Dollars or (b)the aggregate outstanding principal balance of Canadian Usage exceeds any other limit based on U.S. Dollars set forth herein for such Canadian Finance Obligations, the Canadian Borrowers shall (x)if such excess is in an aggregate amount that is greater than or equal to $1,000,000, within 2 Business Days of notice from the Administrative Agent, or (y)if an Event of Default has occurred and is continuing, immediately (i)make the necessary payments or repayments to reduce such Canadian Finance Obligations to an amount necessary to eliminate such excess or (ii)maintain or cause to be maintained with the Administrative Agent deposits as continuing collateral security for the Canadian Finance Obligations in an amount equal to or greater than the amount of such excess, such deposits to be maintained in such form and upon such terms as are acceptable to Administrative Agent. Without in any way limiting the foregoing provisions, the Administrative Agent shall, weekly or more frequently in the sole discretion of the Administrative Agent, make the necessary exchange rate calculations to determine whether any such excess exists on such date and advise the Borrowers if such excess exists."
"(a) U.S. Advances. Subject to the terms and conditions of this Agreement, and during the term of this Agreement, each U.S. Revolving Lender agrees (severally, not jointly or jointly and severally) to make revolving loans (U.S. Advances) denominated in U.S. Dollars, Euros or any other freely transferable currency approved by the U.S. Revolving Lenders, the Administrative Agent and, in respect of Letters of Credit, the U.S. Issuing Banks in accordance with Section1.5, at the election of the U.S. Borrowers, to the U.S. Borrowers in an amount at any one time outstanding not to exceed the lesser of: (i)such U.S. Revolving Lenders U.S. Revolving Commitment, and (ii)such U.S. Revolving Lenders Pro Rata Share of an amount equal to: (A)the U.S. Loan Cap, less (B)the U.S. Letter of Credit Usage at such time, less (C)the principal amount of U.S. Swingline Loans outstanding at such time."
"The Canadian Swingline Loans shall be secured by Liens in the Canadian Collateral granted in favor of the Administrative Agent under the Loan Documents, constitute Canadian Advances and Canadian Finance Obligations, and bear interest at the rate applicable from time to time to Canadian Advances that are Canadian Prime Rate Loans or Canadian Base Rate Loans, as the context may require."
"(i) In the event that the Swingline Lender is not obligated to make a Swingline Loan under any Facility, then after receipt of a request for an Advance under such Facility pursuant to Section2.2(a), the Administrative Agent shall notify the Appropriate Lenders by telecopy, telephone, email, or other electronic form of transmission, of the requested Advance and whether such Advance is a U.S. Advance or a Canadian Advance; such notification to be sent on the requested Funding Date in the case of a U.S. Advance of U.S. Base Rate Loans or a Canadian Advance of Canadian Prime Rate Loans or Canadian Base Rate Loans and on the Business Day that is two (2)Business Days prior to the requested Funding Date in the case of all other Advances. If the Administrative Agent has timely notified the Appropriate Lenders of a requested Advance as provided above, then each Appropriate Lender shall make the amount of such Lenders Pro Rata Share of the requested Advance available to the Administrative Agent in immediately available funds in the requested currency, to the Appropriate Agents Account, not later than (x)3:00 p.m. Local Time on the Business Day that is the requested Funding Date, in the case of U.S. Advances that are U.S. Base Rate Loans or Canadian Advances that are Canadian Prime Rate Loans or Canadian Base Rate Loans, and (y)10:00 a.m. Local Time on the Business Day that is the requested Funding Date for all other Advances. After the Administrative Agents receipt of the proceeds of such Advances from the Appropriate Lenders, the Administrative Agent shall make the proceeds thereof available to the applicable Borrower(s) on the requested Funding Date by transferring immediately available funds in the requested currency equal to such proceeds received by the Administrative Agent to the Appropriate Designated Account; provided, that, subject to the provisions of Section2.2(e)(ii), no Lender shall have an obligation to make any Loan if (A)one or more of the applicable conditions set forth in Section4 will not be satisfied on the requested Funding Date for the applicable Advance unless such condition has been waived, or (B)after giving effect to the applicable Advance, (x)the Usage under the applicable Facility would exceed the Loan Cap as then in effect with respect to such Facility or (y)the Pro Rata Share of such Lender in the Usage under the applicable Facility would exceed such Lenders Commitment under such Facility."
"available funds and if the Administrative Agent has made available to the Appropriate Borrowers such amount on the requested Funding Date, then such Lender shall make the amount of such Lenders Pro Rata Share of the requested Advance available to the Administrative Agent in immediately available funds, to the Appropriate Agents Account, no later than 10:00 a.m. Local Time 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 Advance for the Funding Date shall be for the Administrative Agents separate account). If any Lender shall not remit the full amount that it is required to make available to the Administrative Agent in immediately available funds as and when required hereby and if the Administrative Agent has made available to the Appropriate Borrowers such amount, then that Lender shall be obligated to immediately remit such amount to the Administrative Agent, together with interest at the applicable Defaulting Lender Rate for each day until the date on which such amount is so remitted. A notice submitted by the Administrative Agent to any Lender with respect to amounts owing under this Section2.2(d)(ii) shall be conclusive, absent manifest error. If the amount that a Lender is required to remit is made available to the Administrative Agent, then such payment to the Administrative Agent shall constitute such Lenders Advances for all purposes of this Agreement. If such amount is not made available to the Administrative Agent on the Business Day following the Funding Date, the Administrative Agent will notify the Appropriate Borrowers of such failure to fund and, upon demand by the Administrative Agent, the Appropriate Borrowers shall pay such amount to the Administrative Agent for the Administrative Agents account, together with interest thereon for each day elapsed since the date of such Advance, at a rate per annum equal to the interest rate applicable at the time to such Advance."
"In the event the Administrative Agent obtains actual knowledge that the U.S. Usage, the Canadian Usage, the aggregate outstanding U.S. Special Advances, the aggregate outstanding Canadian Special Advances or aggregate outstanding Overadvances exceeds the amounts permitted by the immediately foregoing provisions, regardless of the amount of, or reason for, such excess, the Administrative Agent shall notify the Lenders as soon as practicable (and prior to making any (or any additional) intentional Overadvances (except for and excluding amounts charged to any Loan Account for interest, fees, or Lender Group Expenses) or Protective Advances (to the extent so limited) unless the Administrative Agent determines that prior notice would result in imminent harm to the Collateral or its value, in which case the Administrative Agent may make such Overadvance (or Protective Advance, as applicable) and provide notice as promptly as practicable thereafter), and the Appropriate Lenders with respect to any such Advance shall, together with the Administrative Agent, jointly determine the terms of arrangements that shall be implemented with the Appropriate Borrowers intended to reduce, within a reasonable time, the outstanding principal amount of the Advances to the Borrowers to an amount permitted by the preceding sentence. In such circumstances, if any Lender objects to the proposed terms of reduction or repayment of any Overadvance, the terms of reduction or repayment thereof shall be implemented according to the determination of the Required Lenders. The foregoing provisions are meant for the benefit of the Lenders and the Administrative Agent and are not meant for the benefit of the Borrowers (it being understood that the Required Lenders may, without the consent of the Borrowers, waive any of the restrictions or limitations in respect of Overadvances set forth in this Section2.2(e)(ii), which shall continue to be bound by the provisions of Section2.3(e)). Each Lender under any Facility shall be obligated to settle with the Administrative Agent as provided in Section2.2(f) (or Section2.2(h), as applicable) for the amount of such Lenders Pro Rata Share of any applicable unintentional Overadvances made under such Facility by the Administrative Agent reported to such Lender, any intentional Overadvances made under such Facility as permitted under this Section2.2(e)(ii), and any Overadvances made under such Facility resulting from the charging to the Appropriate Loan Account of interest, fees, or Lender Group Expenses."
"(iii) Between Settlement Dates, the Administrative Agent, to the extent Special Advances or Swingline Loans under any Facility are outstanding, may pay over to the Administrative Agent or the Swingline Lender, as applicable, any payments or other amounts received by the Administrative Agent, that in accordance with the terms of this Agreement would be applied to the reduction of the Advances under such Facility, for application to such Special Advances or Swingline Loans. Between Settlement Dates, the Administrative Agent, to the extent no Special Advances or Swingline Loans are outstanding under any Facility, may pay over to the Swingline Lender any payments or other amounts received by the Administrative Agent, that in accordance with the terms of this Agreement would be applied to the reduction of the Advances under such Facility, for application to the Swingline Lenders Pro Rata Share of the Advances outstanding under such Facility. If, as of any Settlement Date, payments or other amounts of the Borrowers or their Subsidiaries under any Facility received since the then immediately preceding Settlement Date have been applied to the Swingline Lenders Pro Rata Share of the Advances outstanding under such Facility other than to Swingline Loans, as provided for in the previous sentence, the Swingline Lender shall pay to the Administrative Agent for the accounts of the Appropriate Lenders, and the Administrative Agent shall pay to the Appropriate Lenders (other than a Defaulting Lender if the Administrative Agent has implemented the provisions of Section2.2(h)), to be applied to the outstanding U.S. Advances of such the Lenders, an amount such that each such Lender shall, upon receipt of such amount, have, as of such Settlement Date, its Pro Rata Share of the U.S. Advances. During the period between Settlement Dates, the Swingline Lender with respect to U.S. Swingline Loans, the Administrative Agent with respect to Special Advances, and each Lender with respect to the Advances other than U.S. Swingline Loans and Special Advances, shall be entitled to interest at the applicable rate or rates payable under this Agreement on the daily amount of funds employed by the Swingline Lender, the Administrative Agent, or the Lenders, as applicable."
"(g) Notation. the Administrative Agent, as a non-fiduciary agent for the Borrowers, shall maintain a register showing in the Applicable Currency the principal amount of the Advances, owing to each Lender, including the Swingline Loans owing to the Swingline Lender, and Special Advances owing to the Administrative Agent, and the interests therein of each Lender, from time to time and such register shall, absent manifest error, conclusively be presumed to be correct and accurate."
"(E) to the extent any Defaulting U.S. Lenders U.S. Letter of Credit Exposure is neither Collateralized nor reallocated pursuant to this Section2.2(h)(ii), then, without prejudice to any rights or remedies of the U.S. Issuing Bank or any U.S. Revolving Lender hereunder, all Letter of Credit Fees that would have otherwise been payable to such Defaulting U.S. Lender under Section2.5(b) with respect to such portion of such U.S. Letter of Credit Exposure shall instead be payable to the U.S. Issuing Bank until such portion of such Defaulting Lenders U.S. Letter of Credit Exposure is Collateralized or reallocated;"
(G) the Administrative Agent may release any cash collateral provided by the U.S. Borrowers pursuant to this Section2.2(h)(ii) to the U.S. Issuing Bank and the U.S. Issuing Bank may apply any such cash collateral to the payment of such Defaulting U.S. Lenders Pro Rata Share of any U.S. Letter of Credit Disbursement that is not reimbursed by the U.S. Borrowers pursuant to Section2.10(d).
"(D) to the extent the Canadian Letter of Credit Exposure of the Non-Defaulting Canadian Lenders is reallocated pursuant to this Section2.2(h)(ii), then the Letter of Credit Fees payable to the Non-Defaulting Canadian Lenders pursuant to Section2.5(b) shall be adjusted in accordance with such Non-Defaulting Canadian Lenders Canadian Letter of Credit Exposure;"
"(F) so long as any Canadian Revolving Lender is a Defaulting Canadian Lender, the Swingline Lender shall not be required to make the Canadian Swingline Loan and any Canadian Issuing Bank shall not be required to issue, amend, or increase any Letter of Credit, in each case, to the extent (x)the Defaulting Canadian Lenders Pro Rata Share of such Canadian Swingline Loans or Canadian Letter of Credit cannot be reallocated pursuant to this Section2.2(h)(iii) or (y)the Swingline Lender or the Canadian Issuing Bank, as applicable, has not otherwise entered into arrangements reasonably satisfactory to the Swingline Lender or the Canadian Issuing Bank, as applicable, and the Canadian Borrowers to eliminate the Swingline Lenders or such Canadian Issuing Banks risk with respect to the Defaulting Canadian Lenders participation in Canadian Swingline Loans or Canadian Letters of Credit; and"
(G) the Administrative Agent may release any cash collateral provided by the Canadian Borrowers pursuant to this Section2.2(h)(iii) to the Canadian Issuing Bank and the Canadian Issuing Bank may apply any such cash collateral to the payment of such Defaulting Canadian Lenders Pro Rata Share of any Canadian Letter of Credit Disbursement that is not reimbursed by the Canadian Borrowers pursuant to Section2.11(d).
"(III) ratably, up to the amount (after taking into account any amounts previously paid pursuant to this clause (III) during the continuation of the applicable Application Event) of the most recently established Canadian Bank Product Reserve, to (x)the Bank Product Providers providing Canadian Bank Products based upon amounts then certified by the applicable Bank Product Provider to the Administrative Agent (in form and substance satisfactory to the Administrative Agent) to be due and payable to such Bank Product Providers on account of Canadian Bank Product Obligations, and (y)with any balance to be paid to the Administrative Agent, to be held by the Administrative Agent, for the ratable benefit of the Bank Product Providers providing Canadian Bank Products, as cash collateral (which cash collateral may be released by the Administrative Agent to the applicable Bank Product Provider and applied by such Bank Product Provider to the payment or reimbursement of any amounts due and payable with respect to Canadian Bank Product Obligations owed to the applicable Bank Product Provider as and when such amounts first become due and payable and, if and at such time as all such Canadian Bank Product Obligations are paid or otherwise satisfied in full, the cash collateral held by the Administrative Agent in respect of such Canadian Bank Product Obligations shall be reapplied pursuant to this Section2.3(b)(ii)(A), beginning with tier (1)hereof,"
"(ii) Canadian Revolving Commitments. The Canadian Revolving Commitments shall terminate on the Revolving Termination Date. The Canadian Borrowers may reduce the Canadian Revolving Commitments to an amount (which may be zero) not less than the sum of (A)the Canadian Usage as of such date, plus (B)the principal amount of any Canadian Advances not yet made as to which a request has been given by the Canadian Borrowers under Section2.2(a), plus (C)amount of all Canadian Letters of Credit not yet issued as to which a request has been given by the Canadian Borrowers; provided, that the Canadian Borrowers may reduce the Canadian Revolving Commitments below such amount so long as such reduction is accompanied by the prepayment of Canadian Advances or Canadian Swingline Loan and/or the Collateralization of Canadian Letters of Credit in an amount equal to any such excess. Each such reduction shall be in an amount which is not less than $500,000 (unless the Canadian Revolving Commitments are being reduced to zero and the amount of the applicable Canadian Revolving Commitments in effect immediately prior to such reduction are less than $500,000), shall be made by providing not less than 2 Business Days prior written notice to the Administrative Agent, and shall be irrevocable; provided, that if any notice of termination of the Canadian Revolving Commitments indicates that such termination is to be made in connection with a Refinancing of the Facilities, such notice of termination may be revoked if such Refinancing is not consummated and any Contract Rate Loan that was the subject of such notice shall be continued as a Canadian Prime Rate Loan or a Canadian Base Rate Loan, as applicable."
"(ii) Each prepayment of the Canadian Finance Obligations pursuant to Section2.3(e) shall, (A)so long as no Application Event shall have occurred and be continuing, be applied, first, to the outstanding principal amount of the Canadian Advances until paid in full, and second, to Collateralize the Canadian Letters of Credit, and (B)if an Application Event shall have occurred and be continuing, be applied in the manner set forth in Section2.3(b)(ii)(B)."
"(e) Computation. All interest and fees chargeable under the Loan Documents shall be computed on the basis of a three hundred sixty (360)day year and actual days elapsed in the period during which the interest or fees accrue, other than Loans for which the BA Rate, U.S. Base Rate, Canadian Prime Rate or Canadian Base Rate (as applicable) is used which shall be calculated on the basis of three hundred sixty-five (365)day year (or 366 day year, as applicable) and actual days elapsed in the period during which the interest or fees accrue. In the event the U.S. Base Rate, Canadian Prime Rate or Canadian Base Rate (as applicable) is changed from time to time hereafter, the rates of interest hereunder based upon the U.S. Base Rate, Canadian Prime Rate or Canadian Base Rate (as applicable) automatically and immediately shall be increased or decreased by an amount equal to such change in the U.S. Base Rate, Canadian Prime Rate or Canadian Base Rate (as applicable)."
"2.8 Maintenance of Loan Accounts; Statements of Finance Obligations. The Administrative Agent shall maintain an account on its books in the name of the U.S. Borrowers (the U.S. Loan Account) on which the U.S. Borrowers will be charged with all U.S. Advances (including U.S. Special Advances and U.S. Swingline Loans) made by the Administrative Agent, the Swingline Lender, or the U.S. Revolving Lenders to the U.S. Borrowers or for the U.S. Borrowers account, the U.S. Letters of Credit issued or arranged by the U.S. Issuing Bank for the U.S. Borrowers account, and with all other payment obligations hereunder or under the other Loan Documents with respect to the U.S. Finance Obligations, including, accrued interest, fees and expenses, and Lender Group Expenses with respect thereto. In accordance with Section2.6, the U.S. Loan Account will be credited with all payments received by the Administrative Agent from the U.S. Borrowers or for the U.S. Borrowers account. The Administrative Agent shall maintain an account on its books in the name of the Canadian Borrowers (the Canadian Loan Account; and together with the U.S. Loan Account; each individually a Loan Account and collectively, the Loan Accounts) on which the Canadian Borrowers will be charged, all Canadian Advances (including Canadian Special Advances and Canadian Swingline Loans) made by the Administrative Agent or the Canadian Lenders to the Canadian Borrowers or for the Canadian Borrowers account, the Canadian Letters of Credit issued or arranged by the Canadian Issuing Bank for the Canadian Borrowers account, and with all other payment obligations hereunder or under the other Loan Documents with respect to the Canadian Finance Obligations, including, accrued interest, fees and expenses, and Lender Group Expenses with respect thereto. In accordance with Section2.6, the U.S. Loan Account will be credited with all payments received by the Administrative Agent from the U.S. Borrowers or for the U.S. Borrowers account."
"(ii) Canadian Facility. Subject to the limitations set forth in Section5.15, the Canadian Borrowers shall pay to the Administrative Agent, audit, appraisal, and valuation fees and charges, as and when incurred or chargeable, as follows (i)a fee of $1,000 per day, per auditor, plus out-of-pocket expenses for each financial audit of the Canadian Borrowers performed by personnel employed by the Administrative Agent, (ii)if implemented, a fee of $1,000 per day, per applicable individual, plus out of pocket expenses for the establishment of electronic collateral reporting systems, and (iii)the actual charges paid or incurred by the Administrative Agent if it elects to employ the services of one or more third Persons to perform financial audits of the Canadian Borrowers or their Restricted Subsidiaries, to establish electronic collateral reporting systems, to appraise the Collateral, or any portion thereof, or to assess the Canadian Borrowers or their Restricted Subsidiaries business valuation."
"(iv) the identity or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness or legal effect of any Drawing Document (other than the U.S. Issuing Banks determination that such Drawing Document appears on its face substantially to comply with the terms and conditions of the U.S. Letter of Credit);"
"conditions to drawing, and, in the case of an amendment, renewal, or extension, identification of the Canadian Letter of Credit to be so amended, renewed, or extended) as shall be necessary to prepare, amend, renew, or extend such Canadian Letter of Credit, and (ii)shall be accompanied by such Issuer Documents as the Administrative Agent or the Canadian Issuing Bank may request or require, to the extent that such requests or requirements are consistent with the Issuer Documents that the Canadian Issuing Bank generally requests for Canadian Letters of Credit in similar circumstances. The Canadian Issuing Banks records of the content of any such request will be conclusive. Anything contained herein to the contrary notwithstanding, the Canadian Issuing Bank may, but shall not be obligated to, issue a Canadian Letter of Credit that supports the obligations of the Canadian Borrowers or one of their Subsidiaries in respect of (x)a lease of real property, or (y)an employment contract. No Canadian Issuing Bank shall issue any Canadian Letter of Credit if the expiry date of the requested Canadian Letter of Credit would occur after the Revolving Termination Date, unless all the Canadian Lenders have approved such expiry date or such Canadian Letter of Credit is Collateralized prior to the Revolving Termination Date."
"(ii) payment against presentation of any draft, demand or claim for payment under any Drawing Document that does not comply in whole or in part with the terms of the applicable Canadian Letter of Credit or which proves to be fraudulent, forged or invalid in any respect or any statement therein being untrue or inaccurate in any respect, or which is signed, issued or presented by a Person or a transferee of such Person purporting to be a successor or transferee of the beneficiary of such Canadian Letter of Credit;"
"(vi) any other event, circumstance or conduct whatsoever, whether or not similar to any of the foregoing that might, but for this Section2.11(i), constitute a legal or equitable defense to or discharge of, or provide a right of set-off against, any Canadian Borrowers or any of its Subsidiaries reimbursement and other payment obligations and liabilities, arising under, or in connection with, any Canadian Letter of Credit, whether against the Canadian Issuing Bank, the beneficiary or any other Person; or"
"(i) Each Advance initially shall be of the Type specified in the applicable request for Advance made in accordance with Section2.2(a) and, if applicable, shall have an initial Interest Period as specified in such Advance request. Thereafter, any Borrower may elect to convert such Advance to a different Type (to the extent available for the Type of Advance) or to continue such Advance and, in the case of an Advance of Contract Rate Loans of any Type, may elect Interest Periods therefor, all as provided herein. Any Borrower (or the Borrower Representative on behalf of such Borrower) may elect different options with respect to different portions of the affected Advance, and the Loans comprising each such portion shall be considered a separate Advance. This Section shall not apply to Swingline Loans or Special Advances, which may not be so converted or continued. Interest on Contract Rate Loans (including LIBOR Rate Loans and BA Rate Loans as described above) shall be payable on the Interest Payment applicable thereto."
"(ii) To make an election pursuant to this Section, any Borrower (or the Borrower Representative on behalf of such Borrower) shall notify the Administrative Agent in writing of such election by the time that an Advance request would be required under Section2.2 if any Borrower (or the Borrower Representative on behalf of such Borrower) was requesting an Advance of Loans of the Type resulting from such election to be made on the effective date of such election. Each such Interest Election Request shall be irrevocable. At the Administrative Agents election, in lieu of giving an Interest Election Request in writing, any Responsible Officer may give the Administrative Agent telephonic notice of such Interest Election Request. In such circumstance, any Borrower (or the Borrower Representative on behalf of such Borrower) agrees that any such telephonic notice will be confirmed in writing within 24 hours of the giving of such telephonic notice, but the failure to provide such written confirmation shall not affect the validity of such request."
"continued as LIBOR Rate Loans, (B)no Advance denominated in U.S. Dollars for the account of the U.S. Borrowers or the Canadian Borrowers may be made as LIBOR Rate Loans, (C)no outstanding Advance of BA Rate Loans for the account of the Canadian Borrowers may be converted to or continued as BA Rate Loans, (D)no Advance denominated in Canadian Dollars for the account of the Canadian Borrowers may be made as BA Rate Loans, and (D)unless repaid, (1)each LIBOR Rate Loan for the account of the U.S. Borrowers or the Canadian Borrowers shall be converted to a U.S. Base Rate Loan or Canadian Base Rate Loan, as applicable, at the end of the Interest Period applicable thereto, (2)each BA Rate Loan shall be converted to a Canadian Prime Rate Loan as the end of the Interest Period applicable thereto, and (3)each other Contract Rate Loan shall be continued as a Loan of the same Type with an Interest Period of one month."
"(b) Conversion. The Borrowers may convert Contract Rate Loans at any time; provided, that in the event that Contract 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 the Administrative Agent of any payments or proceeds of Collateral in accordance with Section2.3(b) or for any other reason, including early termination of the term of this Agreement or acceleration of all or any portion of the Finance Obligations pursuant to the terms hereof, the Borrowers shall indemnify, defend, and hold the Administrative Agent and Lenders and their Participants harmless against any and all Funding Losses in accordance with Section2.12(a)(vi)."
"(ii) Each Canadian Borrower, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety and a guarantor but also as a co-debtor, joint and several liability with the other Canadian Borrowers, with respect to the payment and performance of all of the Canadian Finance Obligations (including any Canadian Finance Obligations arising under this Section2.15(b)), it being the intention of the parties hereto that all the Canadian Finance Obligations shall be the joint and several obligations of each the Canadian Borrower without preferences or distinction among them."
(vi) Each Canadian Borrower represents and warrants to the Administrative Agent and the Canadian Revolving Lenders that such Canadian Borrower is currently informed of the financial condition of the Canadian Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Canadian Finance Obligations. Each Canadian Borrower further represents and warrants to the Administrative Agent and the Canadian Revolving Lenders that such Canadian Borrower has read and understands the terms and conditions of the Loan Documents. Each Canadian Borrower hereby covenants that such Canadian Borrower will continue to keep informed of the Canadian Borrowers financial condition and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Canadian Finance Obligations.
"2.17 Circumstances Affecting Euro Availability. In connection with any request for an Advance denominated in Euro (Euro Extensions) or a continuation or extension thereof, if the introduction of, or any change in, any Law or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any U.S. Revolving Lender (or the applicable lending office of such U.S. Revolving Lender) with any request or directive (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency or any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls, shall make it unlawful or impossible for any U.S. Revolving Lender (or any of their applicable lending office) to honor its obligations to make or maintain any Euro Extensions, then the Administrative Agent shall promptly give notice thereof to the Borrower Representative and the other U.S. Revolving Lenders. Thereafter, until the Administrative Agent notifies the Borrower Representative that such circumstances no longer exist, the obligation of such U.S. Revolving Lender to make Euro Extensions or any continuation or extension thereof, as applicable, shall be suspended until such U.S. Revolving Lender determines that it would no longer be unlawful or impractical to do so, provided, that the U.S. Borrowers shall continue to be entitled to make elections for Euro Extensions from any other U.S. Revolving Lenders; and the U.S. Borrowers shall either (i)repay in full (or cause to be repaid in full) the then outstanding principal amount of such Euro Extensions, together with accrued interest thereon, on the last day of the then current Interest Period applicable to such Euro Extensions, or (ii)convert the then outstanding principal amount of each such Euro Extensions to a U.S. Advance denominated in U.S. Dollars; provided, that if the U.S. Borrowers elect to make such conversion, the U.S. Borrowers shall pay to the Administrative Agent and the U.S. Revolving Lenders any and all costs, fees and other expenses, if any, incurred by the Administrative Agent and the U.S. Revolving Lenders in effecting such conversion."
"(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the Loan Parties, as promptly as possible thereafter the Borrower Representative shall send to the Administrative Agent for its own account or for the account of the relevant Lender, as the case may be, a certified copy of an original official receipt received by the Loan Parties showing payment thereof, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent."
"(a) The unaudited balance sheets and related unaudited combined statements of income and comprehensive income and statement of cash flows related to the Company for the fiscal quarter ended June28, 2014 present fairly in all material respects the consolidated financial condition of the Company and its consolidated Subsidiaries as at such applicable date, and the consolidated results of its operations and its consolidated cash flows for the respective fiscal quarters then ended. All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved."
"(b) No Governmental Approval or consent or authorization of, filing with, notice to or other act by or in respect of, any other Person is required in connection with the extensions of credit hereunder or with the execution, delivery, performance, validity or enforceability of this Agreement or any of the Loan Documents, except (i)Governmental Approvals, consents, authorizations, filings and notices that have been obtained or made and are in full force and effect and (ii)the filings referred to in Section3.16. No Governmental Approval or consent or authorization of, filing with, notice to or other act by or in respect of, any other Person is required in connection with the consummation of the Transactions, except (x)Governmental Approvals, consents, authorizations, filings and notices that have been obtained or made and are in full force and effect, (y)the filings referred to in Section3.16 and (iii)those, the failure of which to obtain or make would not reasonably be expected to have a Material Adverse Effect."
"3.5 No Legal Bar. The execution, delivery and performance of this Agreement and the other Loan Documents, the issuance of Letters of Credit, the borrowings and guarantees hereunder and the use of the proceeds thereof will not violate any material Requirement of Law, any Contractual Obligation of any Group Member that is material to the Group Members, taken as a whole, or the Organizational Documents of any Loan Party and will not result in, or require, the creation or imposition of any Lien on any of their"
"3.8 Intellectual Property. Except as could not, individually or in an aggregate, reasonably be expected to have a Material Adverse Effect, the Group Members own, or are licensed to use, all intellectual property necessary for the conduct in all material respects of the business of the Group Members, taken as a whole, as currently conducted. No material claim has been asserted and is pending by any Person challenging or questioning any Group Members use of any intellectual property or the validity or effectiveness of any Group Members intellectual property or alleging that the conduct of any Group Members business infringes or violates the rights of any Person, nor does any Group Member know of any valid basis for any such claim except for such claims that could not reasonably be expected to impair or interfere in any material respect with the operations of the business conducted by the Group Members, taken as a whole, or result in a Material Adverse Effect."
"the case of the other Collateral not described in clause (i)constituting personal property described in the Security Agreements, when financing statements and other filings, agreements and actions specified on Schedule 3.16(a) in appropriate form are executed and delivered, performed or filed in the offices specified on Schedule 3.16(a), as the case may be, the Administrative Agent, for the benefit of the relevant Secured Parties, shall have a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the relevant Finance Obligations, in each case prior and superior in right to any other Person (except, in the case of Permitted Priority Liens). Other than as set forth on Schedule 3.16(a), as of the Closing Date, none of the Capital Stock of any Borrower or Subsidiary Guarantor that is a limited liability company or partnership is a Certificated Security (as defined in the U.S. Security Agreement)."
"(vi) certificates of insurance policies and endorsements naming the Administrative Agent as additional insured or lenders loss payee, as the case may be (including, without limitation, standard life of loan flood hazard determination forms and acknowledgments and if any property is located in a special flood hazard area (x)notices to (and confirmations of receipt by) such Loan Party as to the existence of a special flood hazard and, if applicable, the unavailability of flood hazard insurance under the National Flood Insurance Program and (y)evidence of applicable flood insurance, if available, in each case in such form, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994) all in form and substance reasonably satisfactory to the Administrative Agent; and"
"(g) Legal Opinions. The Administrative Agent shall have received the executed legal opinion of Fried, Frank, Harris, Shriver& Jacobson, LLP and Goodmans LLP, special counsel to the Loan Parties and executed legal opinions of each local counsel to the Loan Parties set forth on Schedule 4.1(f), each of which shall be in form and substance reasonably satisfactory to the Administrative Agent."
"(i) Filings, Registrations and Recordings. Each document (including any Uniform Commercial Code and PPSA financing statement) required by the Security Documents 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 Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than Permitted Priority Liens), shall have been executed and delivered to the Administrative Agent in proper form for filing, registration or recordation."
"(d) as soon as available, but in any event within 90 days after the last day of each fiscal year of the Company (commencing with the fiscal year ending on or about December31, 2015), a detailed consolidated budget for the following fiscal year (collectively, the Projections), which Projections shall be based on reasonable estimates, information and assumptions that are reasonable at the time in light of the circumstances then existing, it being understood that projections are subject to uncertainties and there is no assurance that any projections will be realized;"
"(f) within 10 Business Days after the end of each fiscal month, such information as is necessary to complete the Borrowing Base as reflected in Schedule 5.2 as of the close of business as of the last day of such fiscal month, each Borrowing Base Certificate to be certified as complete and correct by a Responsible Officer of the Borrower Representative; provided that (x)if requested by the Administrative Agent during an Enhanced Collateral Reporting Period or (y)if requested by the Borrower Representative, in each case, such Borrowing Base Certificate shall be delivered not later than four Business Days after the close of business on the immediately preceding Saturday of each week, showing the Borrowing Base as of the close of business on such immediately preceding Saturday;"
"5.3 Payment of Taxes. Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all its Tax obligations of whatever nature, except (i)where the failure to do so could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect or (ii)where the amount or validity thereof is currently being contested in good faith by appropriate proceedings and reserves in conformity with GAAP with respect thereto have been provided on the books of the relevant Group Member."
"5.4 Maintenance of Existence; Compliance with Law. (a)(i)Preserve, renew and keep in full force and effect its organizational existence and (ii)take all reasonable action to maintain or obtain all Governmental Approvals and all other all rights, privileges and franchises, in each case necessary or desirable in the normal conduct of its business, except, in each case, as otherwise permitted by Section6.8 or by the Security Agreements and except, in the case of clause (ii)above, to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; (b)comply with all Requirements of Law except to the extent that failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect; and (c)comply with all Governmental Approvals except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect."
"5.5 Maintenance of Property; Insurance. (a)Keep all property useful and necessary in its business in good working order and condition, ordinary wear and tear and casualty and condemnation excepted, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect, (b)maintain all the rights, licenses, permits, privileges, franchises, patents, copyrights, trademarks and trade names material to the conduct of its business, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect and (c)maintain with insurance companies that the Borrower Representative believes (in the good faith judgment of the management of the Borrower Representative) are financially sound and responsible at the time the relevant coverage is placed or renewed, customary insurance (but not, for the avoidance of doubt, flood insurance except to the extent required by applicable law) in at least such amounts (after giving effect to any self-insurance which the Borrower Representative believes (in the good faith judgment of management of the Borrower Representative) is reasonable and prudent in light of the size and nature of its business) and against at least such risks (and with such risk retentions) as the Borrower Representative believes (in the good faith judgment of management of the Borrower Representative) is reasonable and prudent in light of the size and nature of its business. All such insurance shall name the Collateral Agent as mortgagee or loss payee (in the case of property insurance) or additional insured on behalf of the Secured Parties (in the case of liability insurance)."
"so long as the obligations relating to such Liens do not permit a Lien on such property in favor of the Secured Parties), within 90 days (or such longer period as the Administrative Agent shall reasonably agree) (i)execute and deliver a Mortgage, in favor of the Administrative Agent, for the benefit of the Secured Parties, covering such interest in real property, (ii)in the case of Material Property or real property constituting Borrowing Base Real Property Collateral located in the United States, if requested by the Administrative Agent, provide the Lenders with a Title Policy as well as a current ALTA survey thereof (or an existing ALTA survey (accompanied if necessary by a no-change affidavit and/or other documents) sufficient to remove the survey exception from the Title Policy and to obtain survey coverage in the Title Policy), together with a surveyors certificate in form reasonably acceptable to the Administrative Agent, (iii)if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the enforceability of any such Mortgage and the Lien created thereby, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent, and (iv)the materials described in Section4.1(a)(vi). Notwithstanding the foregoing, no Loan Party (or any Group Member required to become a Loan Party pursuant to the terms of the Loan Documents) shall be required to provide a Mortgage with respect to any Non-Material Property (other than real property constituting Borrowing Base Real Property Collateral) or any leasehold property pursuant to this Section5.9(b)."
"5.14 Use of Proceeds. The proceeds of any Loans made on the Closing Date shall be used, together with the proceeds of the Term Loan Agreement, to pay the consideration for the Transactions, to pay costs and expenses related to the Transactions and for general corporate purposes (including acquisitions) of Holdings and its Subsidiaries. Thereafter, the proceeds from Advances (including Swingline Loans) and Letters of Credit shall be used for working capital, Capital Expenditures and general corporate purposes of Holdings and its Subsidiaries (including acquisitions) not in violation of the terms and conditions contained herein and in the other Loan Documents."
"(A) U.S. Facility. On or prior to the Closing Date, the U.S. Borrowers shall and shall cause each of the other U.S. Loan Parties to (A)establish and maintain one or more U.S. Collection DDAs with Wells Fargo (which U.S. Collection DDAs shall, in each case, be subject to a Depositary Bank Agreement among the applicable Borrower, the Administrative Agent and Wells Fargo) and take such reasonable steps to ensure that all of its and the other U.S. Loan Parties Account Debtors forward payment of the amounts owed by them directly to the U.S. Collection DDAs, and (B)deposit or cause to be deposited promptly, and in any event no later than the second Business Day after the date of receipt thereof, all of their collections into the U.S. Collection DDAs."
"(ii) Canadian Facility. At all times during a Cash Dominion Period (including the first and last day thereof), all amounts in the Canadian Collection DDAs shall be remitted daily to the Canadian Agents Account and shall be applied by the Administrative Agent on a daily basis to the Canadian Finance Obligations outstanding and thereafter to the Canadian Borrowers (to be wired to the Canadian Designated Account) or such other Person entitled thereto under applicable law."
"5.18 Post-Closing Obligations ~~.~~ Notwithstanding the conditions precedent set forth in Section4.1 above, the Borrowers have informed the Administrative Agent and the Lenders that certain items required to be delivered to Administrative Agent or otherwise satisfied as conditions precedent to the effectiveness of this Agreement will not be delivered to Administrative Agent as of the date hereof. As an accommodation to the Borrowers, the Administrative Agent and the Lenders have agreed to make the Loans available under this Agreement notwithstanding that such conditions to closing have not been satisfied (but subject to the other conditions set forth herein). In consideration of such accommodation, the Borrowers hereby agree to take, and cause each other Loan Party to take, each of the actions described on Schedule 5.18 attached hereto, in each case in the manner and by the dates set forth thereon, or such later dates as may be agreed to by Administrative Agent in its sole discretion."
"6.1 Fixed Charge Coverage Ratio. Upon the occurrence an during the continuance of any Financial Covenant Trigger Period, the Company and the Restricted Subsidiaries, on a consolidated basis, will not, without the consent of the Required Lenders, permit the Fixed Charge Coverage Ratio, calculated on the last day of the most recently completed period for which financial statements were delivered (or required to be delivered) pursuant to Section5.1(a), (b)or (c), to be less than 1.0 to 1.0."
"(ii) Indebtedness Incurred pursuant to the Term Loan Agreement in an aggregate principal amount not to exceed $775,000,000 plus the principal amount of incremental facilities (the Term Loan Incremental Facilities) incurred under the Term Loan Agreement; provided that (A)such Term Loan Incremental Facilities are permitted to be incurred under the Term Loan Agreement as in effect on the ~~Closing~~ Amendment Effective Date, (B)Indebtedness Incurred under such Term Loan Incremental Facilities is subject to the ABL-Term Intercreditor Agreement and (C)the Indebtedness Incurred under such Term Loan Incremental Facilities does not require any amortization of more than 5.0% of the original principal amount thereof prior to the date that is ninety-one (91)days after the Revolving Termination Date;"
"(viii) Indebtedness (x)in respect of any bankers acceptance, bank guarantees, discounted bill of exchange or the discounting or factoring of receivables for credit management purposes, warehouse receipt or similar facilities, and reinvestment obligations related thereto, entered into in the ordinary course of business and (y)constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including letters of credit in respect of workers compensation claims, or other Indebtedness with respect to reimbursement type obligations regarding workers compensation claims; provided that upon the drawing of such letters of credit or the Incurrence of such Indebtedness, such obligations are reimbursed within thirty (30)days following such drawing;"
"(xv) any guarantee by the Company or any of the Restricted Subsidiaries of Indebtedness or other obligations of the Company or any of the Restricted Subsidiaries so long as the Incurrence of such Indebtedness or other obligations by the Company or such Restricted Subsidiary is permitted under the terms of this Agreement and, in the event of a guarantee of an obligation of a Person in another country of origin, such Investment is otherwise permitted hereunder; provided that guarantees by a Loan Party of Indebtedness or other obligations of any"
"(iii) the redemption, repurchase, defeasance or other acquisition or retirement of Subordinated Indebtedness of the Company or any Restricted Subsidiary made by exchange for, or out of the proceeds of the substantially concurrent sale of, new Indebtedness of the Company or a Restricted Subsidiary that is Incurred in accordance with Section6.2 so long as:"
"(iv) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the purchase, retirement, redemption or other acquisition (or the payment of dividends to the Company or any other direct or indirect parent of the Company for value) of Equity Interests of the Company or any other direct or indirect parent of the Company held by any future, present or former employee or director of the Company or any direct or indirect parent of the Company or any Subsidiary of the Company or their estates or the beneficiaries of such estates pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or other similar agreement or arrangement; provided that the aggregate amounts paid under this clause (iv)do not exceed $10,000,000 in any calendar year, which shall increase to $15,000,000 subsequent to the consummation of an Initial Public Offering by the Company or any direct or indirect parent of the Company (with unused amounts in any calendar year being carried over to the immediately succeeding calendar year subject to a maximum (without giving effect to the following proviso) of $15,000,000 in any calendar year, which shall increase to $25,000,000 subsequent to the consummation of an Initial Public Offering by the Company or any direct or indirect parent of the Company); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:"
"(ix) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, acquisitions by the Company or any Restricted Subsidiary of the majority of the Capital Stock of Persons or of assets constituting a division or business unit of, or all or substantially all of the assets of a Person (including in connection with an Approved European Acquisition) (each a Permitted Acquisition); provided, that (i)no Default or Event of Default has occurred or is continuing both before and after giving effect to such Permitted Acquisition or would result therefrom, (ii)the line of business of the acquired entity shall be similar, ancillary, complementary or related to, or a reasonable extension, development or expansion of, the businesses conducted by the Company and the Restricted Subsidiaries, (iii)any Person acquired shall become, and any Person acquiring assets shall be, a Restricted Subsidiary (unless designated as an Unrestricted Subsidiary), (iv)the board of directors (or organizational equivalent) and, if required by applicable law, the equityholders of the acquired entity, shall have consented to such acquisition, (v)the Permitted Acquisition must constitute a Permitted Investment permitted to be incurred pursuant to ~~clauses~~ clause (6), (9)and/or (22)of such definition and (vi)Holdings, the Borrowers and such Restricted Subsidiary shall take, and shall cause such Person to take, all actions required under Section5.9 in connection therewith; provided, that the inclusion of any assets of a Borrower acquired pursuant to a Permitted Acquisition in any Borrowing Base shall be subject to the completion of all field examinations, appraisals and other necessary diligence related thereto and to all eligibility criteria;"
"(x) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (A)prior to any Initial Public Offering by the Company or any direct or indirect parent of the Company, Restricted Payments in an aggregate amount, taken together with all other Restricted Payments made pursuant to this clause (x), not to exceed $30,000,000 and (B)on or after any Initial Public Offering by the Company or any direct or indirect parent of the Company, the greater of (I)the amount of Restricted Payments available to be made pursuant to subclause (A)of this clause (x)and (II) the net proceeds received by the Company or any direct or indirect parent of the Company from such Initial Public Offering not to exceed, on a per annum basis, 6% of the market capitalization of the common stock issued in such Initial Public Offering;"
"(B) pay, if applicable, amounts equal to amounts required for any direct or indirect parent of the Company, if applicable, to pay interest and/or principal on Indebtedness the proceeds of which have been contributed to the Company or any of its Restricted Subsidiaries and that has been guaranteed by, or is otherwise considered Indebtedness of, the Company or any of its Restricted Subsidiaries Incurred in accordance with Section6.2;"
"For purposes of determining compliance with this Section6.4, (i)the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii)the subordination of loans or advances made to the Company or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company or such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances."
"(i) any liabilities (as shown on the Companys or such Restricted Subsidiarys most recent balance sheet or in the notes thereto or, if incurred, increased or decreased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Companys or such Restricted Subsidiarys balance sheet or in the notes thereto if such incurrence, increase or decrease had taken place on the date of such balance sheet, as reasonably determined in good faith by the Borrower Representative) of the Company or any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to the Finance Obligations) that are assumed by the transferee (or a third party on behalf of the transferee) of any such assets or Equity Interests pursuant to an agreement that releases or indemnifies the Company or such Restricted Subsidiary (or a third party on behalf of the transferee), as the case may be, from further liability;"
"(iii) any Designated Non-cash Consideration received by the Company or any of the Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market Value (being measured at the time received and without giving effect to subsequent changes in value), taken together with all other Designated Non- cash Consideration received pursuant to this clause (iii)that is at that time outstanding, not to exceed the greater of $20,000,000 and 1.0% of Total Assets (at the time of the receipt of such Designated Non-cash Consideration);"
"(ix) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Agreement, which are fair to the Company and the Restricted Subsidiaries in the reasonable determination of the Borrower Representative, and are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party or (B)transactions with joint ventures or Unrestricted Subsidiaries entered into in the ordinary course of business and are in compliance with Section6.6(a);"
"(xxv) transactions with Affiliates solely in their capacity as holders of Indebtedness or Equity Interests of the Company or any of the Restricted Subsidiaries, so long as such transaction is with all holders of such class (and there are such non-Affiliate holders) and such Affiliates are treated no more favorably than all other holders of such class generally;"
"(b) No Borrower (other than the Company) will, and the Borrower Representative will not permit any such Borrower to, consolidate or merge or amalgamate with or into or wind up into, or sell, assign, transfer, lease, convey or otherwise dispose (including in connection with a liquidation) of all or substantially all of its properties or assets in one or more related transactions to, any Person unless such Borrower is the surviving company."
"(a) Amendments to Organizational Documents. Holdings and the Company shall not, and shall not permit any Group Member to, terminate or agree to any amendment, supplement, or other modification of (pursuant to a waiver or otherwise), or waive any of its rights under, any Organizational Documents of any of the Group Members, if, in light of the then-existing circumstances, a Material Adverse Effect would be reasonably likely to exist or result after giving effect to such termination, amendment, supplement or other modification or waiver, except, in each case, as otherwise permitted by the Loan Documents."
"created, contracted or incurred in reliance upon the Guarantee, and all dealings between the Borrowers and the Secured Parties shall likewise be conclusively presumed to have been had or consummated in reliance upon the Guarantee. The Guarantee shall be construed as a continuing, absolute, irrevocable and unconditional guarantee of payment without regard to any right of offset with respect to the Guarantor Obligations at any time or from time to time held by the Secured Parties and the obligations and liabilities of the Guarantors hereunder shall not be conditioned or contingent upon the pursuit by the Secured Parties or any other person at any time of any right or remedy against the Borrowers or against any other person which may be or become liable in respect of all or any part of the Guarantor Obligations or against any collateral security or guarantee therefor or right of offset with respect thereto. The Guarantee shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantors and the successors and assigns thereof, and shall inure to the benefit of the applicable Lenders, and their respective successors and assigns, notwithstanding that from time to time during the term of this Agreement there may be no Guarantor Obligations outstanding."
"7.5 Remedies. Each Guarantor agrees that, as between the Guarantors and the Lenders, the obligations of the Borrowers under this Agreement and the Notes, if any, may be declared to be forthwith due and payable as provided in Section8 (and shall be deemed to have become automatically due and payable in the circumstances provided in Section8) for purposes of Section8.1, notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against any Borrower or any Guarantor and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable, or the circumstances occurring where Section8 provides that such relevant obligations shall become due and payable), such obligations (whether or not due and payable by the Borrowers) shall forthwith become due and payable by the Guarantors for purposes of Section7.1."
"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 or (y)to cause, with the giving of notice if required, any Group Member to purchase or redeem or make an offer to purchase or redeem such Indebtedness prior to its stated maturity; provided that a default, event or condition described in clause (i), (ii)or (iii)of this Section8.1(f) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in clauses (i), (ii)and (iii)of this Section8.1(f) shall have occurred and be continuing with respect to Indebtedness the outstanding principal amount of which exceeds in the aggregate $35,000,000; provided, further, that clause (iii)of this Section8.1(f) shall not apply to secured Indebtedness that becomes due as a result of the voluntary Disposition of the property or assets securing such Indebtedness, if such Disposition is permitted hereunder and such Indebtedness that becomes due is paid upon such Disposition; or"
"(g) Holdings, the Borrowers or any Significant Subsidiary shall commence any case, proceeding, proposal 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, adjustment, winding up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B)seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, interim receiver, monitor, administrator, or Holdings, the Borrowers or any Significant Subsidiary shall make a general assignment for the benefit of its creditors; or (ii)there shall be commenced against Holdings, the Borrowers or any Significant Subsidiary any case, proceeding, proposal 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 Holdings, the Borrowers or any Significant Subsidiary any case, proceeding, proposal 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)Holdings, the Borrowers or any Significant Subsidiary 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)Holdings, the Borrowers or any Significant Subsidiary shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or"
"(j) any of the Security Documents shall cease, for any reason, to be in full force and effect, other than pursuant to the terms hereof or thereof, or any Loan Party or any Affiliate or Subsidiary of any Loan Party shall so assert, or any Lien created by any of the Security Documents shall cease to be enforceable and of the same effect and priority purported to be created thereby, except (A)to the extent that (x)any such loss of perfection or priority results from the failure of the Administrative Agent to maintain possession of certificates actually delivered to it representing securities pledged under the Security Agreement or from the failure of the Administrative Agent to file UCC continuation statements (or similar statements or filings in other jurisdictions) and except as to Collateral consisting of real property to the extent that such losses are covered by a lenders title insurance policy and such insurer has been notified and has not denied coverage and (y)the Loan Parties take such action as the Administrative Agent may reasonably request to remedy such loss of perfection or priority or (B)the Fair Market Value of assets affected thereby does not exceed $1,500,000; or"
"(k) the Guarantee of Holdings or any Guarantor that is a Significant Subsidiary shall cease, for any reason, to be in full force and effect, other than as provided for in Sections 7.9 or 9.10, or any Loan Party or any Affiliate or any Subsidiary of any Loan Party shall so assert; or"
"(a) Administrative Agent. Each of the Lenders and the Issuing Banks 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 or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Section9 are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and, except to the extent that any Group Member has any express rights under this Section9, no Group Member shall have rights as a third party beneficiary of any of such provisions."
"9.9 Administrative Agent May File Proofs of Claim. 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 Letters of Credit 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:"
"(d) If (i)a Guarantor was released from its obligations under a Guarantee or (ii)the Collateral was released from the assignment and security interest granted under any Security Document (or the interest in such item subordinated), the Administrative Agent will (and each Lender irrevocably authorizes the Administrative Agent to) execute and deliver to the relevant Loan Party such documents as such Loan Party may reasonably request to evidence the release of such Guarantor from its obligations under its Guarantee, the release of such item of Collateral from the assignment and security interest granted under the relevant Security Documents or to subordinate its interest in such item, in each case in accordance with the terms of the Loan Documents and this Section9.10."
"(e) If as a result of any transaction not prohibited by this Agreement (i)any U.S. Guarantor becomes an Excluded Domestic Subsidiary or a Foreign Subsidiary, then (x)such U.S. Guarantors Guarantee shall be automatically released, and (y)the Capital Stock of such Guarantor (other than 65% of the total outstanding Capital Stock of a CFC Holdco or Foreign Subsidiary that, in each case, is directly owned by a U.S. Borrower or a U.S. Guarantor) shall be automatically released from the security interests created by the Loan Documents, (ii)any CFC Holdco or any Foreign Subsidiary ceases to be directly owned by a U.S. Borrower or U.S. Guarantor, then the Capital Stock of such Subsidiary shall be automatically released from any security interests created by the Loan Documents, or (iii)any Canadian Loan Party becomes disregarded as separate from any U.S. Loan Party or Domestic Subsidiary for U.S. federal income tax purposes, (x)any Canadian Guarantee provided by a CFC Holdco or a Foreign Subsidiary that is a CFC shall be automatically released with respect to the obligations of such Canadian Loan Party, and (y)the Capital Stock of any CFC Holdco or Foreign Subsidiary that is a CFC (other than 65% of the total outstanding Capital Stock of a CFC Holdco or Foreign Subsidiary that, in each case, is directly owned by a U.S. Borrower or a U.S. Guarantor) shall be automatically released from any security interests created by the Loan Documents with respect to the obligations of such Canadian Loan Party. In connection with any termination or release pursuant to this Section9.10(e), the Administrative Agent and any applicable Lender shall promptly 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 Section9.10(e) shall be without recourse to or warranty by the Administrative Agent or any Lender."
"(a) Except as otherwise provided in clause (b)below, neither this Agreement nor any other Loan Document (or any terms hereof or thereof) may be amended, supplemented or modified other than in accordance with the provisions of this Section10.1. The Required Lenders and each Loan Party party to the relevant Loan Document may, or, with the written consent of the Required Lenders, the Administrative Agent and each Loan Party party to the relevant Loan Document may, from time to time, (i)enter into written amendments, supplements or modifications hereto and to the other Loan Documents for the purpose of adding any provisions to this Agreement or the other Loan Documents or changing in any manner the rights of the Lenders or of the Loan Parties hereunder or thereunder or (ii)waive, on such terms and conditions as the Required Lenders or the Administrative Agent, as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Loan Documents or any Default or Event of Default and its consequences; provided, however, that no such waiver and no such amendment, supplement or modification shall (A)forgive the principal amount or extend the final scheduled date of maturity of any Loan, reduce the stated rate of any interest or fee payable hereunder (except (x)in"
"(vii) the Administrative Agent may amend an Intercreditor Agreement (or enter into a replacement thereof), additional Security Documents and/or replacement Security Documents (including a collateral trust agreement) in connection with the incurrence of any Indebtedness incurred pursuant to Section6.2(b) to provide that an agent, trustee or other representative acting on behalf of the holders of such Indebtedness shall become a party thereto and shall have rights to share in the Collateral on a pari passu or junior lien, subordinated basis to the Finance Obligations, as applicable;"
"(ix) amendments and waivers of this Agreement and the other Loan Documents that affect solely the Lenders under a Facility (including waiver or modification of conditions to extensions of credit under any Facility or any Commitment Increases, the availability and conditions to funding of any Commitment Increase, pricing and other modifications) will require only the consent of the Majority Facility Lenders under such Facility and, in each case, (x)no other consents or approvals shall be required and (y)any fees or other consideration payable to obtain such amendments or waivers need only be offered on a pro rata basis to the Lenders under the affected Facility; and"
"f 617.502.4086 ; provided that any notice, request or demand to or upon the Administrative Agent or the Lenders shall not be effective until received. In no event shall a voice mail message be effective as a notice, communication or confirmation hereunder. All telephonic notices to the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording."
"Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Section2 unless otherwise agreed by the Administrative Agent and the applicable Lender (Approved Electronic Communications). The Administrative Agent or the Borrower Representative 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, (a)notices and other communications sent to an email 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 email 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 (b)notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its email address as described in the foregoing clause (a)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 hereby (including any affiliate of an Issuing Bank that issues any Letter of Credit), except that the Borrowers may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender and the Administrative Agent (and any attempted assignment or transfer by such Borrower without such consent shall be null and void)."
"(c) (2) Any Lender may, without the consent of the Borrowers or the Administrative Agent, sell participations to one or more banks or other entities (other than a natural person, a Defaulting Lender, Holdings or any Subsidiary of Holdings) (a Participant) in all or a portion of such Lenders rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans owing to it); provided that (A)such Lenders obligations under this Agreement shall remain unchanged, (B)such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C)the Borrowers, the Administrative Agent, the Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lenders rights and obligations under this Agreement. Any agreement 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 may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver that (1)requires, subject to Section10.1(b), the consent of each Lender directly affected thereby pursuant to clauses (A)and (C)of Section10.1(a) and (2)directly affects such Participant. Subject to Section10.6(c)(ii), each Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.12, 2.13, 2.18 and 2.19 (subject to the requirements of those sections) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section10.6(b). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section10.7(b) as though it were a Lender; provided such Participant shall be subject to Section10.7(a) as though it were a Lender. Each Lender that sells a participation shall, acting solely for U.S. federal income tax purposes as the agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the commitment of, and the principal amounts (and stated interest) of, each Participants interest in the Loans, Letters of Credit 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 to any Person (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) 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, Letters of Credit or other obligation is in registered form under Section5f.103-1(c) of the United States Treasury Regulations. Unless otherwise required by the Internal Revenue Service (IRS), any disclosure required by the foregoing sentence shall be made by the relevant Lender directly and solely to the IRS. The entries in the Participant Register shall be conclusive, 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."
"(i) A Participant shall not be entitled to receive any greater payment under Section2.12, 2.13 or 2.18 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant. No Participant shall be entitled to the benefits of Section2.18 unless such Participant complies with Sections 2.18(d), 2.18(e) and 2.18(g)."
"(b) 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."
"(a) Appointment; Nature of Relationships. The Company is hereby appointed by each of the Borrowers as its contractual representative (herein referred to as the Borrower Representative) hereunder and under each other Loan Document, and each of the Borrowers irrevocably authorizes the Borrower Representative to act as the contractual representative of such Borrower with the rights and duties expressly set forth herein and in the other Loan Documents. The Borrower Representative agrees to act as such contractual representative upon the express conditions contained in this Section10.21. Additionally, the Borrowers hereby appoint the Borrower Representative as their agent to receive all of the proceeds of"
"(b) Powers. The Borrower Representative shall have and may exercise such powers under the Loan Documents as are specifically delegated to the Borrower Representative by the terms of each thereof, together with such powers as are reasonably incidental thereto. The Borrower Representative shall have no implied duties to the Borrowers, or any obligation to the Lenders to take any action thereunder except any action specifically provided by the Loan Documents to be taken by the Borrower Representative."
"(e) Execution of Loan Documents; Borrowing Base Certificates. The Borrowers hereby empower and authorize the Borrower Representative, on behalf of the Borrowers, to execute and deliver to the Lender the Loan Documents and all related agreements, certificates, documents, or instruments as shall be necessary or appropriate to effect the purposes of the Loan Documents, including without limitation, the Borrowing Base Certificates and the Compliance Certificates. Each Borrower agrees that any action taken by the Borrower Representative or the Borrowers in accordance with the terms of this Agreement or the other Loan Documents, and the exercise by the Borrower Representative of its powers set forth therein or herein, together with such other powers that are reasonably incidental thereto, shall be binding upon all of the Borrowers."
| | ---|---|--- A-1 |  | Form of Loan Notice A-2 |  | Form of Notice of Continuation/Conversion B |  | Form of Swing Line Loan Notice C-1 |  | Form of Revolving Note C-2 |  | Form of Swing Line Note D |  | Form of Compliance Certificate E |  | Form of Assignment and Assumption F |  | Form of Guaranty Joinder Agreement G |  | Form of Collateral Joinder Agreement H |  | Form of U.S. Tax Compliance Certificates 
"Applicable Law means all laws, rules, regulations and legally binding governmental guidelines applicable to the Person, conduct, transaction, agreement or matter in question, including all applicable statutory law and common law, and all provisions of constitutions, treaties, statutes, rules, regulations, orders and decrees of Governmental Authorities (having the force of law)."
"|  |  33.33% |  | 1.75% |  |  | 0.75 | % |  | 1.75% Through the second full fiscal quarter ending after the Closing Date, margins shall be determined as if Level II were applicable. Thereafter, margins shall be subject to increase or decrease by the Administrative Agent on the first day of the fiscal quarter following each fiscal quarter end. If the Administrative Agent is unable to calculate average daily Excess Availability for a fiscal quarter due to the Borrowers failure to deliver any Borrowing Base Certificate when required hereunder, then, at the option of the Administrative Agent or Required Lenders, margins shall be determined as if Level III were applicable until the first day of the calendar month following its receipt."
Borrowers means (a)AFI and (b)each Domestic Subsidiary of AFI that (i)executes this Agreement on the Closing Date as a Borrower or (ii)(x) is joined as a Borrower pursuant to joinder documentation reasonably acceptable to the Administrative Agent and (y)has delivered to each Lender all information reasonably requested by such Lender to enable it to meet its internal know your customer requirements and internal operating procedures.
"Business Day means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, New York, New York and, if such day relates to any Eurodollar Rate Loan, means any such day that is also a London Banking Day."
"Cash Equivalents means, as at any date, (a)securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than twelve months from the date of acquisition, (b)Dollar denominated time deposits and certificates of deposit of (i)any Lender, (ii)any domestic commercial bank of recognized standing having capital and surplus in excess of $500,000,000 or (iii)any bank whose short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moodys is at least P-1 or the equivalent thereof (any such bank being an Approved Bank), in each case with maturities of not more than 270 days from the date of acquisition, (c)commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moodys and maturing within six months of the date of acquisition, (d)repurchase agreements entered into by any Person with a bank or trust company (including any of the Lenders) or recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States in which such Person shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase obligations, (e)Investments, classified in accordance with GAAP as current assets, in money market investment programs registered under the Investment Company Act of 1940 which are administered by reputable financial institutions having capital of at least $500,000,000 and the portfolios of which are limited to Investments of the character described in the foregoing subdivisions (a)through (d), and (f)with respect to Foreign Subsidiaries, instruments equivalent to those referred to in clauses (a)through (e)above denominated in any foreign currency comparable in credit quality and tenor to those referred to above and customarily used by corporations for cash management purposes in any jurisdiction outside the United States."
"(b) during any period of twelve consecutive months, a majority of the members of the board of directors or other equivalent governing body of AFI cease to be composed of individuals (i)who were members of that board or equivalent governing body on the first day of such period, (ii)whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i)above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body, (iii)whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i)and (ii)above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body, or (iv)who were members of that board or equivalent governing body on the Closing Date."
"Dilution Reserve means the aggregate amount of reserves, as established by the Administrative Agent from time to time, in an amount equal to the Value of the Eligible Accounts multiplied by 1.0% for each percentage point (or portion thereof) that the Borrowers Dilution Percent exceeds 5.0%, or such other calculation procedure as may be agreed by the Administrative Agent and AFI."
"Disposition or Dispose means the sale, transfer, license, lease or other disposition (including any Sale and Leaseback Transaction) of any Property by AFI or any of its Subsidiaries (including the Capital Stock of any Subsidiary), 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, but excluding (i)the Permitted Dispositions, (ii)the sale, lease, license, transfer or other disposition of inventory or other Property in the ordinary course of business, (iii)the sale, lease, license, transfer or other disposition of machinery, equipment or other Property no longer used or useful in the conduct of business, (iv)any sale, lease, license, transfer or other disposition of Property to any Loan Party, (v)any Disposition to the extent constituting a Permitted Investment, (vi)any sale, lease, license, transfer or other disposition of Property by any Foreign Subsidiary to AFI or any of its Subsidiaries, (vii)dispositions of equipment or real property to the extent that (a)such property is exchanged for credit against the purchase price of similar replacement equipment or property or (b)the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement equipment or property; (viii)licenses, sublicenses, leases and subleases not interfering in any material respect with the business of AFI or its Subsidiaries, (ix)sales or discounts of accounts receivable in connection with the compromise or collection thereof and (x)dispositions set forth on Schedule 8.05."
"Eligible Accounts means an Account owing to a Borrower that arises in the Ordinary Course of Business from the sale of goods or rendition of services, is payable in Dollars and is deemed by the Administrative Agent, in its Permitted Discretion, to be a Eligible Account. Without limiting the foregoing, no Account shall be a Eligible Account if (a)it is unpaid for more than sixty (60)days after the original due date, or more than ninety (90)days after the original invoice date; (b)50% or more of the Accounts owing by the Account Debtor are not Eligible Accounts under the foregoing clause; (c)(i)except with respect to Accounts of Home Depot, Lowes Home Improvement and JJ Haines& Co., when aggregated with other Accounts owing by the Account Debtor, it exceeds 10% of the aggregate Eligible Accounts (or such higher percentage as the Administrative Agent may establish for the Account Debtor from time to time), (ii)with respect to Accounts of Home Depot or Lowes Home Improvement, when the Accounts owing by such Account Debtors are aggregated with all other Accounts, it exceeds 35% of the aggregate Eligible Accounts and (iii)with respect to Accounts of JJ Haines& Co., when the Accounts owing by JJ Haines& Co. are aggregated with all other Accounts, it exceeds 15% of the aggregate Eligible Accounts; (d)it does not conform with a covenant or representation herein; (e)it is owing by a creditor or supplier, or is otherwise subject to a potential offset, counterclaim, dispute, deduction, discount, recoupment, reserve, defense, chargeback, credit or allowance (but ineligibility shall be limited to the amount thereof); (f)an Insolvency Proceeding has been commenced by or against the Account Debtor; or the Account Debtor has failed, has suspended or ceased doing business, is liquidating, dissolving or winding up its affairs, is not Solvent, or is subject to any Sanction or on any specially designated nationals list maintained by OFAC; or the applicable Borrower is not able to bring suit or enforce remedies against the Account Debtor through judicial process; (g)the Account Debtor has its principal offices or assets outside of the United States, unless the Account is supported by a letter of credit (delivered to and directly drawable by the Administrative Agent) or credit insurance satisfactory in all respects to the Administrative Agent; (h)it is owing by a Governmental Authority, unless (i)the Account Debtor is the U.S. or any department, agency or instrumentality thereof and the Account has been assigned to the Administrative Agent in compliance with the federal Assignment of Claims Act or (ii)such Account is backed by a letter of credit reasonably acceptable to the Administrative Agent and which is in the possession of the Administrative Agent; (i)it is not subject to a duly perfected, first priority Lien in favor of the Administrative Agent, or is subject to any other Lien; (j)the goods giving rise to it have not been delivered to the Account Debtor, the services giving rise to it have not been accepted"
"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 consent to use; (k)is not located on leased premises or in the possession of a warehouseman, processor, repairman, mechanic, shipper, freight forwarder or other Person, unless the lessor or such Person has delivered a Lien Waiver or an appropriate Rent and Charges Reserve has been established; (l)with respect to work-in-process, has not been approved by the Administrative Agent; and (m)is not In-Transit Inventory except between Permitted Inventory Locations of the Borrowers or In- Transit Inventory that constitutes Eligible In-Transit Inventory; provided, that in no event shall Eligible In-Transit Inventory constitute more than $15,000,000 of Eligible Inventory included in the Borrowing Base."
"(c) such Equipment is located in a public warehouse or in possession of a bailee or in a facility leased by any Borrower; provided, that Equipment situated at a location not owned by a Loan Party will be Eligible Machinery and Equipment if the Administrative Agent has received a Collateral Access Agreement with respect to such location (and, if no such Collateral Access Agreement has been received with respect to such location, such Equipment may nevertheless be Eligible Machinery and Equipment in the Permitted Discretion of the Administrative Agent but the Administrative Agent may impose Rent and Charges Reserves with respect to such location); or"
"Eligible NVOCC means with respect to any Foreign In-Transit Inventory, an NVOCC in respect of such Inventory that (i)is not an Affiliate of any Borrower or the applicable Vendor and is otherwise acceptable to the Administrative Agent; (ii)is engaged by such Borrower as freight forwarder with respect to such Inventory; (iii)has received from the carrier a tangible bill of lading with respect to such Inventory that names such NVOCC as consignee and, if so requested by Administrative Agent, has granted Administrative Agent a security interest in such bill of lading as security for the Obligations; (iv)has issued an Acceptable BOL with respect to such Inventory; (v)has entered into an Imported Goods Agreement; and (vi)has not asserted any adverse claim or Lien against any such Inventory."
"materially and adversely alter such Loan Partys rights, titles and interests thereunder (including upon the giving of notice or the lapse of time or both), provided that in any such case the prohibition, termination or rights to terminate, accelerate or materially and adversely alter such Loan Partys rights, titles and interests would not be rendered ineffective by the Uniform Commercial Code (including the provisions of Sections 9-407 and 9-408 thereof) or other applicable Law (including Debtor Relief Laws), and (f)any Property listed in Schedule 1.02 under the heading Excluded Property."
"Fronting Exposure means, at any time there is a Defaulting Lender, (a)with respect to the L/C Issuer, such Defaulting Lenders pro rata share of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lenders participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, (b)with respect to the Swing Line Lender, such Defaulting Lenders pro rata share of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lenders participation obligation has been reallocated to other Lenders in accordance with the terms hereof and (c)with respect to Protective Advances, such Defaulting Lenders pro rata share of Protective Advances other than Protective Advances as to which such Defaulting Lenders participation obligation has been reallocated to other Lenders in accordance with the terms hereof."
"Full Payment with respect to any Obligations, (a)the full and indefeasible cash payment thereof, including any interest, fees and other charges accruing during an Insolvency Proceeding (whether or not allowed in the proceeding); and (b)if such Obligations are L/C Obligations or inchoate or contingent in nature, Cash Collateralization thereof (or delivery of a standby letter of credit acceptable to Administrative Agent in its discretion, in the amount of required Cash Collateral). No Loans shall be deemed to have been paid in full unless all Commitments related to such Loans have terminated."
"(j) all Funded Indebtedness of the types referred to in clauses (a)through (h)above 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 joint venturer and has liability for such obligations, but only to the extent there is recourse to such Person for payment thereof."
"(d) all Indebtedness of the types referred to in clauses (a)through (c)above 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 joint venturer, and has liability for such obligations, but only to the extent there is recourse to such Person for payment thereof."
"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 on the date one, two, three or six, and, if available to all of the relevant Lenders, twelve months thereafter, as selected by the applicable Borrower in its Loan Notice; provided that:"
"all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section1.06. For all purposes of this Agreement, if on any date of determination a 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 Letter of Credit shall be deemed to be outstanding in the amount so remaining available to be drawn."
"Material Adverse Effect means (a)a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent) or condition (financial or otherwise) of AFI and its Subsidiaries taken as a whole; (b)a material impairment of the ability of the Borrowers and their respective Subsidiaries taken as a whole to perform their obligations under any Loan Document to which they are a party; or (c)a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrowers and their respective Subsidiaries taken as a whole of any Loan Document to which they are a party."
"Minimum Collateral Amount means, at any time, (i)with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender or in accordance with Section9.03, an amount equal to 105% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time, (ii)with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section2.14(a)(i),(a)(ii) or (a)(iii), an amount equal to 105% of the Outstanding Amount of all L/C Obligations, and (iii)otherwise, an amount determined by the Administrative Agent and the L/C Issuer in their sole discretion of the amount that is due or could become due, including all fees, expenses, indemnifications and other amounts relating to such Obligations"
"Obligations means with respect to the Borrowers and each Guarantor (a)all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, whether absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding, and (b)all Secured Bank Product Obligations; provided that the Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor."
"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)."
"Outstanding Amount means (a)with respect to Revolving Loans and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any Borrowings and prepayments or repayments of Revolving Loans and Swing Line Loans, as the case may be, occurring on such date; and (b)with respect to any L/C Obligations on any date, 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 Borrowers of Unreimbursed Amounts."
"Person shall have duly approved such Acquisition, (iii)either (A)both (1)Excess Availability on a Pro Forma Basis for the thirty (30)day period ending on and including the date of such Acquisition is not less than the greater of (I)12.5% of the Line Cap and (II) $25,000,000 and (2)the Loan Parties will be in compliance with the financial covenant under Section8.11 after giving effect thereto on Pro Forma Basis or (B)Excess Availability on a Pro Forma Basis for the thirty (30)day period ending on and including the date of such Acquisition is not less than the greater of (1)20.0% of the Line Cap and (2)$40,000,000, (iv)no Default or Event of Default shall exist immediately before or immediately after giving effect thereto on a Pro Forma Basis and (v)AFI shall deliver to the Administrative Agent a compliance certificate confirming the foregoing, in form and detail reasonably satisfactory to the Administrative Agent."
"Solvent or Solvency means, with respect to any Person as of a particular date, that on such date (a)such Person is generally able to pay its debts and other liabilities, contingent obligations and other commitments as they mature, (b)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"
"unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged or is to engage, (c)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 and (d)the present fair salable value of the assets of such Person is not less than the amount that will be required to pay all liabilities of such Person on its debts as they become absolute and matured. In computing the amount of contingent liabilities at any time, it is intended that such liabilities will be computed at the amount which, in 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."
"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."
"(e) To the extent that any of the representations and warranties contained in Article VI under this Agreement or in any of the other Loan Documents is qualified by Material Adverse Effect, the qualifier in all material respects contained in Section5.02(a) and the qualifier in any material respect contained in Section9.01(d) shall not apply."
"Section1.08 Uniform Commercial Code. As used herein, the following terms are defined in accordance with the UCC in effect in the State of New York from time to time: Chattel Paper, Commercial Tort Claim, Deposit Account, Document, Equipment, General Intangibles, Goods, Instrument, Investment Property, Letter-of-Credit Right and Supporting Obligation. In addition, other terms relating to Collateral used and not otherwise defined herein that are defined in the UCC shall have the meanings set forth in the UCC as the context requires."
"(b) Incremental Credit Facilities. At any time on or after the Closing Date, the Borrowers may, on written notice from AFI to the Administrative Agent, establish additional credit facilities with Lenders or other Eligible Assignees who shall become Lenders (collectively, the Incremental Credit Facilities) by increasing the Aggregate Committed Amount or establishing other revolving credit commitments in accordance herewith with the following:"
"anything in Section11.01 or any other provision of the Loan Documents to the contrary, (1)the Lenders hereby irrevocably authorize the Administrative Agent to enter into a FILO Incremental Amendment or other amendments, restatements or other supplements or modifications to this Agreement and the other Loan Documents with the applicable Loan Parties and the FILO Lenders as may be necessary or desirable in order to establish the FILO Credit Facility, in each case on terms consistent with the conditions set forth in this Section2.01 and the FILO Incremental Conditions without the consent or approval of any Lenders (other than the Lenders participating in the FILO Credit Facility), (2)the Lenders hereby consent to the FILO Credit Facility, the FILO Incremental Conditions and other transactions contemplated by this Section2.01(b)(ii) and hereby waive the requirements of any provision of this Agreement (including, without limitation, any pro rata payment section or amendment or waiver section, but excluding this Section2.01 and the FILO Incremental Conditions) or any other Loan Document that might otherwise prohibit or restrict the FILO Credit Facility, the FILO Credit Facility Amendment or any other transaction contemplated by this Section2.01(b)(ii) and (3)the Administrative Agent shall have the right (but not the obligation) to consult with the Required Lenders with respect to the FILO Credit Facility and any matter contemplated by this Section2.01(b)(ii)."
"(iii) A portion of the Incremental Credit Facilities may be provided to Canadian Subsidiaries of AFI in the form of a Canadian Dollar revolving credit facility (a Canadian Incremental Credit Facility), which AFI may by written notice to the Administrative Agent elect to establish with each Canadian Incremental Lender that agrees to make Canadian Incremental Revolving Loans; provided, that (x)it shall be a condition to the establishment of a Canadian Incremental Credit Facility that all conditions set forth in this Section2.01 and all Canadian Incremental Conditions shall be satisfied, and (y)notwithstanding anything in Section11.01 or any other provision of the Loan Documents to the contrary, (1)the Lenders hereby irrevocably authorize the Administrative Agent to enter into a Canadian Incremental Amendment or other amendments, restatements or other supplements or modifications to this Agreement and the other Loan Documents with the applicable Loan Parties and the Canadian Incremental Lenders as may be necessary or desirable in order to establish the Canadian Incremental Credit Facility, in each case on terms consistent with the conditions set forth in this Section2.01 and the Canadian Incremental Conditions without the consent or approval of any Lenders (other than the Lenders participating in the Canadian Credit Facility), (2)the Lenders hereby consent to the Canadian Incremental Credit Facility, the Canadian Incremental Conditions and other transactions contemplated by this Section2.01(b)(iii) and hereby waive the requirements of any provision of this Agreement (including, without limitation, any pro rata payment section or amendment or waiver section, but excluding this Section2.01 and the Canadian Incremental Conditions) or any other Loan Document that might otherwise prohibit or restrict the Canadian Incremental Credit Facility, the Canadian Incremental Credit Facility Amendment or any other transaction contemplated by this Section2.01(b)(iii) and (3)the Administrative Agent shall have the right (but not the obligation) to consult with the Required Lenders with respect to the Canadian Incremental Credit Facility and any matter contemplated by this Section2.01(b)(iii)."
"shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (iii)any request for continuation or conversion of a Eurodollar Rate Loan which shall fail to specify an Interest Period shall be deemed to be a request for an Interest Period of one month. Each such continuation or conversion shall be effected by the Applicable Borrower by giving a Notice of Extension/Conversion (or electronic notice promptly confirmed in writing) to the office of the Administrative Agent specified in Section11.02, or at such other office as the Administrative Agent may designate in writing, prior to 11:00 a.m., on the Business Day of, in the case of the conversion of a Eurodollar Rate Loan into a Base Rate Loan, and on the third Business Day prior to, in the case of the continuation of a Eurodollar Rate Loan as, or conversion of a Base Rate Loan into, a Eurodollar Rate Loan, the date of the proposed continuation or conversion, the Loans to be so extended or converted, the types of Loans into which such Loans are to be converted and, if appropriate, the applicable Interest Periods with respect thereto. In the event the Applicable Borrower fails to request continuation or conversion of any Eurodollar Rate Loan in accordance with this Section, or any such conversion or continuation is not permitted or required by this Section, then such Eurodollar Rate Loan shall be automatically converted into a Base Rate Loan at the end of the Interest Period applicable thereto. The Administrative Agent shall give each Lender notice as promptly as practicable of any such proposed continuation or conversion affecting any Revolving Loan."
"(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 such 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 such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such 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;"
"(v) An L/C Issuer shall be under no 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."
"(ii) Issuance. Promptly after receipt of any Letter of Credit Application, the applicable L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Applicable Borrower and, if not, such L/C Issuer will provide the Administrative Agent with a"
"(v) Each Revolving Lenders obligation to make Revolving 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 set-off, counterclaim, recoupment, defense or other right which such Revolving Lender may have against such L/C Issuer, the Applicable Borrower or any other Person for any reason whatsoever; (B)the occurrence or continuance of a Default, (C)noncompliance with the conditions set forth in Section5.02 or (D)any other occurrence, event or condition, whether or not similar to any of the foregoing. No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Applicable Borrower to reimburse the applicable 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."
"(f) Role of L/C Issuer. Each Lender and the Applicable Borrower agree that, in paying any drawing under a Letter of Credit, the applicable L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuers, the Administrative Agent, any of their respective Related Parties nor any of the respective correspondents, participants or assignees of the L/C Issuers shall be liable to any Lender for (i)any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii)any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii)the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The Applicable Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Applicable Borrowers pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuers, the Administrative Agent, any of their respective Related Parties nor any of the respective correspondents, participants or assignees of the L/C Issuers, shall be liable or responsible for any of the matters described in clauses (i)through (v)of Section2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, the Applicable Borrower may have a claim against the applicable L/C Issuer, and such L/C Issuer may be liable to the Applicable Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Applicable Borrower which the Applicable Borrower proves were caused by such L/C Issuers willful misconduct or gross negligence or such L/C Issuers willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, each L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and such L/C Issuer shall not 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 shall provide to the"
"(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Borrowing of Revolving Loans in accordance with Section2.04(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 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."
"(b) Partial Reductions. The Aggregate Committed Amount may be permanently reduced in whole or in part by notice from the Borrowers to the Administrative Agent; provided that (a)any such notice thereof must be received by 11:00a.m. at least three Business Days prior to the date of reduction or termination and any such reduction or termination shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof (or the remaining amount of the Aggregate Committed Amount); and (b)the Aggregate Committed Amount may not be reduced to an amount less than the Total Revolving Outstandings. The Administrative Agent will give prompt notice to the Revolving Lenders of any such reduction in Aggregate Committed Amount. Any reduction of the Aggregate Committed Amount shall be applied to the Commitments of the Revolving Lenders ratably in accordance with their respective interests therein, except as provided in Section2.15. All commitment or other fees accrued until the effective date of any termination of the Aggregate Committed Amount shall be paid on the effective date of such termination."
"Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. For purposes of clarification, Swing Line Loans shall not be considered outstanding for purposes of determining the unused portion of the Aggregate Committed Amount. Notwithstanding anything to the contrary contained herein Defaulting Lenders shall not be entitled to the commitment fee as provided in Section2.15."
"(b) If, as a result of any restatement of or other adjustment to the financial statements of AFI or for any other reason, AFI or the Lenders determine that (i)Excess Availability as calculated by AFI as of any applicable date was inaccurate and (ii)a proper calculation of Excess Availability would have resulted in higher pricing for such period, Applicable Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders and/or the L/C Issuer, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to AFI under the Bankruptcy Code, automatically and without further action by the 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 subsection shall not limit the rights of the Administrative Agent, any Lender or the L/C Issuer, as the case may be, under Section2.03(c)(iii), 2.03(i), 2.08(b), 2.09 or under ArticleIX. The Applicable Borrowers obligations under this subsection shall survive the termination of the Aggregate Commitments and the repayment of all other Obligations hereunder."
"If any Lender shall, by exercising any right of setoff pursuant to Section11.08 or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it resulting in such Lenders receiving payment of a proportion of the aggregate amount of such Loans or participations and accrued interest thereon 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 subparticipations in L/C Obligations and Swing Line Loans 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:"
"(ii) the provisions of this Section shall not be construed to apply to (A)any payment made by or on behalf of the Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (B)any amounts applied by the Swing Line Lender to outstanding Swing Line Loans, (C)any amounts applied to L/C Obligations by the L/C Issuer or Swing Line Loans by the Swing Line Lender, as appropriate, from cash collateral or other Adequate Assurance provided under Section2.15, or (D)any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant, other than an assignment to the Borrowers or any Subsidiary (as to which the provisions of this Section shall apply)."
"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 such Loan Party rights of setoff pursuant to Section11.08 and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation."
"(c) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section2.14 or Sections 2.03, 2.04, 2.05, 2.15 or 9.02 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific L/C Obligations, 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 otherwise be provided for herein."
"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 L/C Borrowings in respect of which such 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 Section5.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations and Swing Line Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section2.15(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 Section2.15(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto."
(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 Section2.14.
"(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure. All or any part of such Defaulting Lenders participation in L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective pro rata share (calculated without regard to such Defaulting Lenders Commitment) but only to the extent that (x)the conditions set forth in Section5.02 are satisfied at the time of such reallocation (and, unless the Borrowers shall have otherwise notified the Administrative Agent at such time, the Borrowers shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y)such reallocation does not cause any Non-Defaulting Lenders share of the Outstanding Amount of Revolving Obligations to exceed its Commitment. Subject to Section11.19, 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."
"(c) Each Borrowers obligations arising as a result of the joint and several liability of such Borrower hereunder with respect to Credit Extensions made to and other Obligations owing by the other Borrower hereunder shall, to the fullest extent permitted by law, be unconditional irrespective of (A)the validity or enforceability, avoidance or subordination of the obligations of any other Borrower or of any promissory note or other document evidencing all or any part of the obligations of any other Borrower, (B)the absence of any attempt to collect the Obligations from any other Borrower, any other guarantor, or any other security therefor, or the absence of any other action to enforce the same, (C)the waiver, consent, extension, forbearance or granting of any indulgence by the Administrative Agent or any Lender with respect to any provision of any instrument evidencing the obligations of any other Borrower, or any part thereof, or any other agreement now or hereafter executed by any other Borrower and delivered to the Administrative Agent or any Lender, (D)the failure by the Administrative Agent or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the obligations of any other Borrower, (E)the Administrative Agents or any Lenders election, in any proceeding instituted under the Bankruptcy Code, of the application of Section1111(b)(2) of the Bankruptcy Code, (F)any borrowing or grant of a security interest by any other Borrower, as Debtor In Possession under Section364 of the Bankruptcy Code, (G)the disallowance of all or any portion of the Administrative Agents or any Lenders claim(s) for the repayment of the obligations of any other Borrower under Section502 of the Bankruptcy Code, or (H)any other circumstances which might constitute a legal or equitable discharge or defense of a guarantor or of any other Borrower. With respect to each Borrowers obligations arising as a result of the joint and several liability of such Borrower hereunder with respect to Credit Extensions made to the other Borrower hereunder, such Borrower waives, until the Obligations shall have been paid in full and this Agreement and the other Loan Documents shall have been terminated, any right to enforce any right of subrogation or any remedy which the Administrative Agent or any Lender now has or may hereafter have against such Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to the Administrative Agent or any Lender to secure payment of the Obligations or any other liability of any Borrower to the Administrative Agent or any Lender."
"(C) 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), executed originals 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 supplementary documentation as may be prescribed by applicable Law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and"
"(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so."
"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 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"
"(b) Capital Requirements. If any Lender or the L/C Issuer determines that any Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such Lenders or the L/C 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 L/C Issuers capital or on the capital of such Lenders or the L/C Issuers holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swing Line Loans held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lenders or the L/C Issuers holding company could have achieved but for such Change in Law (taking into consideration such Lenders or the L/C Issuers policies and the policies of such Lenders or the L/C Issuers holding company with respect to capital adequacy), then from time to time the Applicable Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer or such Lenders or the L/C Issuers holding company for any such reduction suffered."
"(d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lenders or the L/C Issuers right to demand such compensation, provided that the Applicable Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine (9)months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies the Applicable Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lenders or the L/C Issuers intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof)."
"For purposes of calculating amounts payable by the Applicable Borrower to the Lenders under this Section3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded."
"(a) Designation of a Different Lending Office. If any Lender requests compensation under Section3.04, or the Applicable Borrower is required to pay any Indemnified Taxes or additional amount to any Lender, the L/C Issuer, or any Governmental Authority for the account of any Lender or the L/C Issuer pursuant to Section3.01, or if any Lender gives a notice pursuant to Section3.02, then at the request of the Borrowers, such Lender or the L/C Issuer shall, as applicable, 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 Lender or the L/C Issuer, as applicable, such designation or assignment (i)would eliminate or reduce amounts payable pursuant to Section3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section3.02, as applicable, and (ii)in each case, would not subject such Lender or the L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or the L/C Issuer, as the case may be. The Applicable Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or the L/C Issuer in connection with any such designation or assignment."
"The Guarantors agree among themselves that, in connection with payments made hereunder, each Guarantor shall have contribution rights against any other Guarantors as permitted under applicable Law. Such contribution rights shall be subordinate and subject in right of payment to the obligations of such Guarantors under the Loan Documents and no Guarantor shall exercise such rights of contribution until all Guaranteed Obligations have been paid in full and the Commitments have terminated."
"(ii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; and"
(g) Fees and Expenses. Receipt by the Administrative Agent and the Lenders of any fees required to be paid on or before the Closing Date and all filing and recording fees and Taxes shall have been duly paid or arrangements reasonably satisfactory to the Administrative Agent shall have been made for the payment thereof.
"(t) No Litigation. There shall be no action, suit, investigation, litigation or proceeding pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect or to materially and adversely affect this Agreement or the transactions contemplated hereby."
"(a) The representations and warranties of AFI and each other Loan Party contained in ArticleVI or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or in all respects in the case of any representation and warranty modified by materiality or Material Adverse Effect) on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date."
"The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party, have been duly authorized by all necessary corporate or other organizational action, and do not (a)contravene the terms of any of such Persons Organization Documents; (b)conflict with or result in any breach or contravention of, or the creation of any Lien under (i)any Contractual Obligation to which such Person is a party or (ii)any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c)violate any Law (including, without limitation, Regulation U or Regulation X issued by the FRB); except in each case referred to in clause (b)or (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect."
"No 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, any Loan Party of this Agreement or any other Loan Document other than (i)those that have already been obtained and are in full force and effect and (ii)filings to perfect the Liens created by the Collateral Documents."
"(b) From the date of the Audited Financial Statements to and including the Closing Date, there has been no Disposition by AFI or any Subsidiary, or any Involuntary Disposition, of any material part of the business or Property of AFI and its Subsidiaries, taken as a whole, and no purchase or other acquisition by any of them of any business or property (including any Capital Stock of any other Person) material in relation to the consolidated financial condition of AFI and its Subsidiaries, taken as a whole, in each case, which is not reflected in the foregoing financial statements or in the notes thereto and has not otherwise been disclosed in writing to the Lenders on or prior to the Closing Date."
"There are no actions, suits, proceedings, investigations, claims or disputes pending or, to the knowledge of the Loan Parties, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrowers or any of their respective Subsidiaries or against any of their properties or revenues that could reasonably be expected to have a Material Adverse Effect."
"(a) Each of the Facilities and all operations at the Facilities are in compliance with all applicable Environmental Laws, and there is no violation of any Environmental Law with respect to the Facilities or the Businesses, and there are no conditions relating to the Facilities or the Businesses that could give rise to liability under any applicable Environmental Laws."
"AFI has disclosed to the Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. No report, financial statement, certificate or other information furnished in writing by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under"
"(a) Each of AFI and each Subsidiary is in compliance with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (i)such requirements of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (ii)the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect."
"(b) Neither the Borrower nor any of its Subsidiaries, nor to the knowledge of the Borrower and the other Loan Parties, 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 (i)currently the subject or target of any Sanctions, (ii)included on OFACs List of Specially Designated Nationals, HMTs Consolidated List of Financial Sanctions Targets and the Investment Ban List, or any similar list enforced by any other relevant sanctions authority or (iii)located, organized or resident in a Designated Jurisdiction."
"AFI and its Subsidiaries own, or possess the legal right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, IP Rights) that, to the knowledge of the Responsible Officers of the Loan Parties, are reasonably necessary for the operation of their respective businesses. Set forth on Schedule6.17 is a list of all material IP Rights registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and owned by each Loan Party as of the Closing Date. Except for such claims and infringements that could not reasonably be expected to have a Material Adverse Effect, no claim has been asserted and is pending by any Person challenging or questioning the use of any IP Rights or the validity or effectiveness of any IP Rights, nor does any Loan Party know of any such claim, and, to the knowledge of the Responsible Officers of the Loan Parties, the use of any IP"
"(a) The Security Agreement is effective to create in favor of the Collateral Agent, for the ratable benefit of the holders of the secured obligations identified therein, a legal and valid security interest in the Collateral identified therein, and, when Uniform Commercial Code financing statements (or other appropriate notices) in appropriate form are duly filed at the office of the secretary of state of the jurisdiction of incorporation or organization of each Loan Party, the Security Agreement shall create a fully perfected Lien on, and security interest in, all right, title and interest of the grantors thereunder in such Collateral, in each case prior and superior in right to any other Lien other than Permitted Liens to the extent such security interest can be perfected by filing under the Uniform Commercial Code."
"Section6.23 Accounts. The Administrative Agent may rely, in determining which Accounts are Eligible Accounts, on all statements and representations made by Borrowers with respect thereto. Each Borrower warrants with respect to each of its Accounts at the time it is shown as an Eligible Account in a Borrowing Base Certificate, that:"
"Section6.27 Burdensome Contracts. No Loan Party or Subsidiary of AFI is a party or subject to any contract, agreement or charter restriction that could reasonably be expected to have a Material Adverse Effect. No Loan Party or Subsidiary is party or subject to any agreement that is, or with the passage of time is reasonably expected to become, and agreement prohibited under Section8.09."
"The Borrowers hereby acknowledge that (a)the Administrative Agent and/or the Arrangers will make available to the Lenders materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, Borrower Materials) by posting Borrower Materials on SyndTrak or another similar electronic system (the Platform) and (b)certain of the Lenders may be public-side Lenders (i.e., Lenders that do not wish to receive material non- public information with respect to AFI or its securities) (each, a Public Lender). The Borrowers hereby agree that (w)all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked PUBLIC which, at a minimum, shall mean that the word PUBLIC shall appear prominently on the first page thereof; (x)by marking Borrower Materials PUBLIC, the Borrowers shall be deemed to have authorized the Administrative Agent, the Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to AFI or its securities for purposes of United States federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section11.07); (y)all Borrower Materials marked PUBLIC are permitted to be made available through a portion of the Platform designated as Public Investor; and (z)the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked PUBLIC as being suitable only for posting on a portion of the Platform not marked as Public Investor. Notwithstanding the foregoing, the Borrowers shall not be under any obligation to mark any Borrower Materials PUBLIC."
"(b) In addition, so long as no Default or Event of Default has occurred and is continuing and the Loan Parties would be in compliance with Section8.11 on a Pro Forma Basis, the Borrower may request that the Administrative Agent (including, without limitation, the Administrative Agents employees, agents and designated representatives) conduct, and will reimburse the Administrative Agent for all charges, costs and expenses of the Administrative Agent in connection with, an updated appraisal of Equipment constituting Eligible Machinery and Equipment; provided, that only one such request may be made prior to the Maturity Date. If such Equipment appraisal, together with customary due diligence delivered by the Borrowers to the Administrative Agent in connection with such appraisal, shall be acceptable to the Administrative Agent in its Reasonable Discretion, then the M&E Sublimit may be updated to reflect the results of such appraisal and thereafter shall amortize quarterly on a seven-year straight-line basis. Borrowers agree to pay Agents then standard charges for examination activities, including charges for the Administrative Agents internal examination and appraisal groups, as well as the charges of any third party used for such purposes."
"(a) Borrowing Base Certificates. As soon as available, but in any event within twenty (20)days after the end of each calendar month, AFI shall deliver to the Administrative Agent Borrowing Base Certificates covering each Borrowing Base and supporting information in connection therewith, provided that (A)AFI will be required to furnish Borrowing Base Certificates and supporting information in connection therewith within three (3)Business Days after the end of each calendar week as of the end of such calendar week during which a Reporting Trigger Period is continuing, (B)within three (3)Business Days after consummation of any sale or disposition of Accounts or Inventory included in the Borrowing Base not in the Ordinary Course of Business resulting in net proceeds exceeding $5,000,000 (individually or in the aggregate for all such sales and dispositions since the date of the most recent Borrowing Base Certificates), AFI shall deliver an updated Borrowing Base Certificate giving effect to any such sale or disposition, (C)AFI shall not be required to deliver to the Administrative Agent the Borrowing Base Certificates for the calendar month ending March31, 2016 until May15, 2016 and (D)AFI shall not be not be required to deliver to the Administrative Agent the Borrowing Base Certificates for the calendar months ending April30, 2016,May31, 2016,June30, 2016,July31, 2016 and August31, 2016 until thirty (30)days after the end of each such calendar month. All calculations of Availability in any Borrowing Base Certificate shall originally be made by the Borrowers and certified by a Senior Officer of the applicable Borrower, provided that the Administrative Agent may from time to time review and adjust any such calculation (after giving prior notice to the Borrowers of such adjustment) (1)to reflect its reasonable estimate of declines in value of any Collateral, due to collections received in the Dominion Account, any disposition of Accounts or Inventory (which shall result in a reduction in the Borrowing Base equal to the net book value thereof as of the date of such disposition) or Equipment (which shall result in a reduction of the Borrowing Base by the net orderly liquidation value of such Equipment as of the date of such disposition) or otherwise; (2)to adjust advance rates and to impose additional reserves in its Permitted Discretion to reflect changes in dilution, quality, mix and other factors affecting Collateral; and (3)to the extent the calculation is not made in accordance with this Agreement or does not accurately reflect the Reserves."
"(iii) Account Verification. During a Default, Event of Default or Cash Dominion Event, the Administrative Agent shall have the right at any time, in the name of the Administrative Agent, any designee of the Administrative Agent or any Borrower, to verify the validity, amount or any other matter relating to any Accounts of the Borrowers by mail, telephone or otherwise. Loan Parties shall cooperate fully with the Administrative Agent in an effort to facilitate and promptly conclude any such verification process."
"(i) Records and Reports of Inventory. Each Borrower shall keep accurate and complete records of its Inventory, including costs and monthly withdrawals and additions, and shall submit to the Administrative Agent inventory and reconciliation reports in form reasonably satisfactory to the Administrative Agent, on such periodic basis as the Administrative Agent may reasonably request. Each Borrower shall conduct periodic cycle counts consistent with historical practices, and shall provide to the Administrative Agent a report based on each such count promptly upon completion thereof, together with such supporting information as the Administrative Agent may reasonably request. The Administrative Agent may participate in and observe each physical count at its own expense or as part of an inspection, audit or field exam under Section7.10."
"collect, liquidate and receive balances in Deposit Accounts or Securities Accounts of the Loan Parties, and take control, in any manner, of proceeds of Collateral of the Loan Parties; (v)prepare, file and sign a Loan Partys name to a proof of claim or other document in a bankruptcy of an Account Debtor, or to any notice, assignment or satisfaction of Lien or similar document; (vi)receive, open and dispose of mail addressed to a Loan Party, and notify postal authorities to deliver any such mail to an address designated by the Administrative Agent; (vii)endorse any Chattel Paper, Document, Instrument, bill of lading, or other document or agreement relating to any Accounts, Inventory or other Collateral; (viii)use a Loan Partys stationery and sign its name to verifications of Accounts and notices to Account Debtors of the Loan Parties; (ix)use information contained in any data processing, electronic or information systems relating to Collateral; (x)make and adjust claims under insurance policies of the Loan Parties; (xi)take any action as may be necessary or appropriate to obtain payment under any letter of credit, bankers acceptance or other instrument for which a Loan Party is a beneficiary; and (xii)take all other actions as the Administrative Agent reasonably deems appropriate to fulfill any Loan Partys obligations under the Loan Documents."
"(i) Liens (other than Liens on than Accounts and Inventory) securing Indebtedness permitted under Section8.03(e); provided that (i)such Liens do not at any time encumber any Property other than the Property financed by such Indebtedness, (ii)the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the Property subject to such Lien and (iii)such Liens attach to such Property concurrently with or within two hundred seventy (270)days after the acquisition, construction, replacement, repair or improvement thereof;"
"(n) Liens (i)of a collection bank arising under Section4-210 of the Uniform Commercial Code on items in the course of collection, (ii)attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business and (iii)in favor of a banking or other financial institution arising as a matter of law encumbering deposits or other funds maintained with a financial institution (including the right of setoff) and which are within the general parameters customary in the banking industry;"
"(q) Liens on property or assets acquired in connection with a Permitted Acquisition, provided, that (i)the indebtedness secured by such Liens is permitted under Section8.03, and (ii)the Liens are not incurred in connection with, or in contemplation or anticipation of, the acquisition and do not attach or extend to any other property or assets;"
"(c) Investments (i)in any Person that is a Loan Party, (ii)by AFI and its wholly-owned Domestic Subsidiaries in and to AFI and its wholly-owned Domestic Subsidiaries (iii)by any Domestic Subsidiary that is not a Guarantor or any Foreign Subsidiary in AFI or any Subsidiary, foreign or domestic, and (iv)by any Loan Party in and to any Domestic Subsidiary that is not a Guarantor, any Foreign Subsidiary or any joint venture to the extent permitted by Section8.02(g);"
"(j) any Investment (other than an Acquisition) so long as (a)no Event of Default exists prior to or after giving effect to such event, (b)either (i)both (A)pro forma Excess Availability for the thirty (30)day period ending on and including the date of such event is not less than the greater of (x)12.5% of the Line Cap and (y)$25,000,000 and (B)the Loan Parties are in pro forma compliance with the Financial Covenants, or (ii)pro forma Excess Availability for the thirty (30)day period ending on and including the date of such event is not less than the greater of (x)20% of the Line Cap and (y)$40,000,000 and (c)AFI delivers to the Administrative Agent a compliance certificate confirming the foregoing, in form and detail reasonably satisfactory to the Administrative Agent;"
"(a) any Disposition (i)for which the total consideration shall be in an amount not less than the fair market value of the Property disposed of, (ii)that does not involve a sale or other disposition of receivables, and (iii)for which the aggregate net book value of all of the assets sold or otherwise disposed of by AFI and its Subsidiaries in such Disposition, taken together with all other Dispositions (other than Involuntary Dispositions and the Disposition(s) set forth in clause (a)above) in any fiscal year of AFI shall not exceed an amount equal to fifteen percent (15%)of the total assets of AFI and its Subsidiaries on a consolidated basis determined in accordance with GAAP as of the last day of the fiscal quarter immediately preceding the date of determination; provided, that no disposition of assets included in the"
"(f) AFI may pay for the repurchase, retirement or other acquisition or retirement for value of Capital Stock of AFI by any future, present or former employee, director or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of AFI or any Subsidiary so long as such purchase is pursuant to and in accordance with the terms of any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director or consultant of AFI or any Subsidiary;"
"provided, in each case, that payment of any dividend or distribution pursuant to this Section8.06 may be made within sixty (60)days after the date of declaration thereof, if at the date of declaration (i)such payment would have complied with the provisions of this Agreement and (ii)no Event of Default occurred and was continuing."
"(11) (x) exist on the date hereof and (to the extent not otherwise permitted by this Section8.09) are listed on Schedule 8.09 hereto and (y)to the extent Contractual Obligations permitted by clause (x)are set forth in an agreement evidencing Indebtedness, are set forth in any agreement evidencing any permitted modification, replacement, renewal, extension or refinancing of such Indebtedness so long as such modification, replacement, renewal, extension or refinancing does not expand the scope of such Contractual Obligation;"
"If any Default has occurred and is continuing or shall exist immediately after giving effect thereto, make (or give any notice with respect thereto) any voluntary or optional payment or prepayment or redemption or acquisition for value of (including without limitation, by way of depositing money or securities with the trustee with respect thereto before due for the purpose of paying when due), refund, refinance or exchange of any Indebtedness of AFI or any Subsidiary (other than Indebtedness arising under the Loan Documents)."
"(d) Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of either of the Borrowers or any other 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 all respects in the case of any representation and warranty modified by materiality or Material Adverse Effect) when made or deemed made; or"
"(f) Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries 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; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for sixty calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for sixty (60)calendar days, or an order for relief is entered in any such proceeding; or"
"(g) Inability to Pay Debts; Attachment. (i)Any of the Borrowers or any Subsidiary becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (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 such Person and is not released, vacated or fully bonded within thirty (30)days after its issue or levy; or"
"(h) Judgments. There is entered against any of the Borrowers or any Subsidiary (i)one or more final judgments or orders for the payment of money in an aggregate amount exceeding $30,000,000 (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage), or (ii)any one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A)enforcement proceedings are commenced by any creditor upon such judgment or order, or (B)there is a period of ten consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or"
"(i) ERISA. (i)An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of any of the Borrowers under TitleIV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of $30,000,000, or (ii)any of the Borrowers or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of $30,000,000; or"
"(b) Waivers. No waiver or course of dealing shall be established by (i)the failure or delay of the Administrative Agent, any security trustee or any Lender to require strict performance by Loan Parties with any terms of the Loan Documents, or to exercise any rights or remedies with respect to Collateral or otherwise; (ii)the making of any Loan or issuance of any Letter of Credit during a Default, Event of Default or other failure to satisfy any conditions precedent; or (iii)acceptance by the Administrative Agent or any Lender of any payment or performance by a Loan Party under any Loan Documents in a manner other than that specified therein. It is expressly acknowledged by Loan Parties that any failure to satisfy a financial covenant on a measurement date shall not be cured or remedied by satisfaction of such covenant on a subsequent date."
"(a) Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America 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 or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and neither the Borrowers nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term agent herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties."
"The Person 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 the term Lender or Lenders shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Loan Party or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders."
"(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 Super-Majority 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 any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and"
"The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents."
"continuing), 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 30 days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the Resignation Effective Date), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above. Whether or not a successor has been appointed such resignation shall become effective in accordance with such notice on the Resignation Effective Date."
"(d) Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also constitute its resignation as L/C Issuer and Swing Line Lender. If Bank of America resigns as an L/C Issuer, its shall retain all the rights and powers, privileges and duties of the 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 Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant Section2.03(c). If Bank of America resigns as Swing Line Lender, it shall retain shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective"
"Each Lender and the 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 the 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."
"Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and L/C Issuer, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09 and 11.04."
"Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or in any such proceeding."
"(a) to release any Lien on any property granted to or held by the Collateral Agent under any Loan Document (i)upon termination of all Commitments and payment in full of all Obligations arising under the Loan Documents (other than contingent indemnification obligations) 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 L/C Issuer shall have been made), (ii)that is transferred or to be transferred as part of or in connection with any Disposition not prohibited hereunder or under any other Loan Document, or (iii)if approved, authorized or ratified in writing in accordance with Section11.01;"
"Section10.13 Loan Party Representative. Each Loan Party hereby designates AFI as its representative and agent (in such capacity, the Loan Party Representative) for all purposes under the Loan Documents, including requests for Loans and Letters of Credit, designation of interest rates, delivery or receipt of communications, preparation and delivery of any Borrowing Base and financial reports, receipt and payment of Obligations, requests for waivers, amendments or other accommodations, actions under the Loan Documents (including in respect of compliance with covenants), and all other dealings with the Administrative Agent, any L/C Issuer or any Lender. AFI hereby accepts such appointment. The Administrative Agent, each L/C Issuer and each Lender shall be entitled to rely upon, and shall be fully protected in relying upon, any notice or communication (including any Notice of Borrowing) delivered by AFI on behalf of any Loan Party and, unless otherwise expressly provided in any Australian Incremental Amendment or Canadian Incremental Amendment, any other Loan Party. The Administrative Agent, any L/C Issuer and any Lender may give any notice or communication with a Loan Party and, unless otherwise expressly provided in any Australian Incremental Amendment or Canadian Incremental Amendment, any other Loan Party hereunder to AFI on behalf of such Loan Party. Each of the Administrative Agent, any L/C Issuer and any Lender shall have the right, in its discretion, to deal exclusively with AFI for any or all purposes under the Loan Documents. Each Loan Party agrees that, unless otherwise expressly provided in any Australian Incremental Amendment or Canadian Incremental Amendment, any notice, election, communication, representation, agreement or undertaking made on its behalf by AFI shall be binding upon and enforceable against it."
"(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 facsimile 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:"
"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), 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"
"(a) Costs and Expenses. The Borrowers shall pay (i)on the date of the disbursements of any Loan pursuant to Article II all 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 of the credit facilities provided for herein, 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, (ii)all reasonable out-of-pocket expenses incurred by the 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 out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuer (including the fees, charges and disbursements of any counsel for the Administrative Agent, any Lender or 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 Section11.04, or (B)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."
"(b) Indemnification by the Borrowers. The Borrowers shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an Indemnitee) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by either of the Borrowers or any other Loan Party arising out of, in connection with, or as a result of (i)the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section3.01), (ii)any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the 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), (iii)any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by either of the Borrowers or any of their respective Subsidiaries, or any Environmental Liability related in any way to either of the Borrowers or any of their respective Subsidiaries, or (iv)any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by either of the Borrowers or any other Loan Party, 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 (x)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 or (y)result from a claim brought by either of the Borrowers or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitees obligations hereunder or under any other Loan Document, if either of the Borrowers or such other Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction. Without limiting the provisions of Section3.01(e), this Section11.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim."
"(A) the consent of the Borrowers (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 the Borrowers shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five Business Days after having received notice thereof;"
"(d) Participations. Any Lender may at any time, without the consent of, or notice to, the Borrowers or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or the Borrowers or any of the Borrowers Affiliates or Subsidiaries) (each, a Participant) in all or a portion of such Lenders rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lenders participations in L/C Obligations and/or Swing Line 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)the Borrowers, the Administrative Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly with such Lender in connection with such Lenders rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section11.04(c) without regard to the existence of any participation."
"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, waiver or other modification described in the first proviso of Section11.01(a) that affects such Participant. The Borrowers agree that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 (it being understood that the documentation required under Section3.01(e) shall be delivered to the Lender who sells the participation) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b)of this Section; provided that such Participant (A)agrees to be subject to the provisions of Sections 3.06 and 11.14 as if it were an assignee"
"under paragraph (b)of this Section and (B)shall not be entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive. Each Lender that sells a participation agrees, at the Borrowers request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section3.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section11.08 as though it were a Lender; provided that such Participant agrees to be subject to Section2.13 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an 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, 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."
"Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a)to its Affiliates and to its Related Parties (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 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 regulations 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 any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement or any Eligible Assignee invited to become a Lender as provided herein, (g)on a confidential basis to (i)any rating agency in connection with rating the Borrowers or their Subsidiaries or the credit facilities provided hereunder or (ii)the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, (h)with the consent of the Borrowers or (j)to the extent such Information (x)becomes publicly available other than as a result of a breach of this Section or (y)becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrowers."
"If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer 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"
"Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging means (e.g. pdf or tif) shall be effective as delivery of a manually executed counterpart of this Agreement."
"If (i)any Lender requests compensation under Section3.04, (ii)the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section3.01, (iii)a Lender (a Non-Consenting Lender) does not consent to a proposed change, waiver, discharge or termination with respect to any Loan Document that has been approved by the Required Lenders as provided in Section11.01, or (iv)any Lender is a Defaulting Lender, then the Borrowers may, at their 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, Section11.06), all of its interests, rights (other than its existing rights to payments pursuant to Sections 3.01 and 3.04) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:"
"(a) GOVERNING 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."
"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), the Borrowers and each other Loan Party acknowledges and agrees, and acknowledges its Affiliates understanding, that: (i)(A)the arranging and other services regarding this Agreement provided by the Administrative Agent, 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, the Arrangers and the Lenders, on the other hand, (B)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 (C)each of the Borrowers and other Loan Parties is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii)(A)the Administrative Agent, the Arrangers and each Lender 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 acting as an advisor, agent or fiduciary for any of the Borrowers, the other Loan Parties or their respective Affiliates, or any other Person and (B)neither the Administrative Agent, any of the Arrangers nor any of the Lenders has any obligation to any of the Borrowers, the other Loan Parties or their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii)the Administrative Agent, the Arrangers and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrowers, the other Loan Parties and their respective Affiliates, and neither the Administrative Agent, any of the Arrangers nor any of the Lenders has any obligation to disclose any of such interests to any of the Borrowers, the other Loan Parties or their"
"(i) ATV Transaction: collectively, (i)the sale and issuance of Capital Stock of ATV to Verizon Media LLC representing up to approximately 24.5% of the voting and economic interests therein and (ii)the sale and issuance of additional Capital Stock of ATV to HDS II, Inc. to maintain its ownership percentage of approximately 24.5% of the voting and economic interests therein, in each case, pursuant to the terms of the ATV Unit Purchase Agreement."
"(ii) ATV Unit Purchase Agreement: the Unit Purchase Agreement dated as of April5, 2016, by and among ATV, ATV Inc., DW Animation, HDS II, Inc., a Delaware corporation, and Verizon Media LLC, a Delaware limited liability company, as in effect on the First Amendment Effective Date, and any amendments thereto to the extent that such amendments, taken as a whole, are not adverse in any material respect to the interests of the Lenders."
"3.3 Continuing Effect; No Other Waivers or Amendments. This Amendment shall not constitute an amendment or waiver of or consent to any provision of the Credit Agreement or the other Loan Documents not expressly referred to herein and shall not be construed as an amendment, waiver or consent to any action on the part of DW Animation that would require an amendment, waiver or consent of the Administrative Agent or the Lenders except as expressly stated herein. Except as expressly amended 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. On and after the First Amendment Effective Date, each reference in the Credit Agreement to this Agreement, hereunder, hereof, herein, or words of like import, and each reference to the Credit Agreement in any other Loan Document shall be deemed a reference to the Credit Agreement as amended hereby. This Amendment shall constitute a Loan Document for all purposes of the Credit Agreement and the other Loan Documents."
"3.8 Severability. Any provision of this Amendment 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 prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction."
"3.9 Integration. This Amendment and the other Loan Documents represent the agreement of DW Animation, each other Loan Party, the Administrative Agent and the Lenders with respect to the subject matter hereof, 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."
"Collateral Reaffirmation Agreement that certain agreement dated as of the Second Restatement Date executed and delivered by each Loan Party in form and substance satisfactory to the Administrative Agent and the Required Lenders pursuant to which each Loan Party confirms the continuing validity, perfection and priority of the Liens created pursuant to the Security Documents to which such Loan Party is a party after giving effect to the amendment and restatement of this Agreement and the Guaranty on the Second Restatement Date."
"Debt 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 and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b) all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers acceptances, bank guaranties, surety bonds and similar instruments; (c) net obligations of such Person under any Swap Agreement; (d) all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business and, in each case, not past due for more than sixty (60) days after the date on which such trade account payable was created); (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse; (f) capital lease and synthetic lease obligations; (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 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; and (h) all Guarantees of such Person in respect of any of the foregoing. For all purposes hereof, the Debt of any Person shall include the Debt 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 Debt is expressly made non-recourse to such Person.The amount of any net obligation under any Swap Agreement on any date shall be deemed to be the swap termination value thereof as of such date.The amount of any capital lease or synthetic lease obligation as of any date shall be deemed to be the amount of debt in respect thereof as of such date determined in accordance with GAAP."
"Default Rate means (i) with respect to the principal amount of any Loan, an interest rate equal to the sum of (a) the Applicable Rate for such Loan plus (b) 2% per annum, (ii) with respect to any interest, fee or other amount payable hereunder directly relating to any Loan, an interest rate equal to the sum of (a) the Applicable Rate plus (b) 2% per annum."
"Equity Interests means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or"
"acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, whether economic or non-economic, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination."
"Eurodollar Rate shall mean with respect to each Interest Period, a rate of interest per annum equal to the offered rate for deposits of Dollars for a 3-month period at or about 11:00 a.m. (London time) on the second Business Day prior to the commencement of such Interest Period (the Interest Determination Date) as is displayed on Reuters Screen LIBOR01 Page (or on any successor or substitute page on such screen or any other service selected by Administrative Agent for the purpose of displaying such rates), provided that if on such Interest Determination Date no such rate is available, the Eurodollar Rate for such period shall be determined by reference to the Interpolated Rate."
"Excluded Taxes means, with respect to any Lender Party or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder, (a) Taxes imposed on or measured by its net income (however denominated), branch profit Taxes and franchise Taxes imposed on it (in lieu of net income Taxes) (i) by the jurisdiction (or any political subdivision thereof) under the Laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, or (ii) that are Other Connection Taxes, (b) any United States federal withholding Tax that is required to be imposed on amounts payable to such Lender Party or other recipient with respect to an applicable interest in a Loan or Commitment pursuant to the Laws in force at the time such Person acquires such interest in the Loan or Commitment (or, in the case of a Lender, designates a new Lending Office), except, in the case of a Lender, 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), to receive additional amounts from a Loan Party with respect to such withholding Tax pursuant to Section 2.08, (c) any Taxes attributable to such Persons failure to comply with Section 2.08(e), and (d) any U.S. federal withholding Taxes imposed under FATCA."
"Hold Amount means, as to any Lender at any time, the Commitments of such Lender at such time or, if the Commitments of such Lender have been terminated or expired, then the Hold Amount of such Lender shall be determined based on the Loan Amount held by such Lender at such time."
"Other Connection Taxes means, with respect to any Lender Party, Taxes imposed as a result of a present or former connection between such Lender Party and the jurisdiction imposing such Tax (other than connections arising from such Lender Party 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)."
"Quebec Security Documents means, collectively, the following: (i) the Deed of Hypothec to Secure Titles of Indebtedness, dated May 12, 2015, by RTK WP Canada, ULC, RTK WP2 Canada, ULC, and Credit Suisse AG, Cayman Islands Branch; (ii) the Debenture Pledge Agreement, dated May 12, 2015, by and between RTK WP Canada, ULC, Credit Suisse AG, Cayman Islands Branch, and (iii) the Debenture dated May 12, 2015, by RTK WP Canada, ULC in favor of Credit Suisse AG, Cayman Islands Branch."
"Subsidiary means, with respect to any Person, any corporation, partnership, limited liability company or other entity of which more than fifty percent (50%) of the securities or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other persons performing similar functions of such corporation, partnership, limited liability company or other entity (irrespective of whether or not at the time securities or other ownership interests of any other class or classes of such corporation, partnership, limited liability company or other entity shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person."
"Transaction Agreement means the Transaction Agreement, dated as of August 9, 2015, among the Issuer, the holders of the Preferred Equity parties thereto, and GSO Capital Partners LP, as Holders Representative, as such agreement is in effect on such date and, notwithstanding Section 1.04 hereof, without giving effect to any amendment, supplement or other modification thereto which is adverse to the Lenders in any material respect that is not consented to by the Lenders."
"(c) Certificates for Reimbursement.A certificate of a Lender Party setting forth the amount or amounts necessary to compensate such Lender Party or its holding company, as the case may be, as specified in Subsection (a) or (b) of this Section and delivered to Borrower shall be conclusive absent manifest error.Borrower shall pay such Lender Party the amount shown as due on any such certificate within ten (10) days after receipt thereof."
"(A) any Lender that is a U.S. Person shall deliver to 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 Borrower or Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;"
"(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate substantially in the form of Exhibit G-1 to the effect that such Foreign Lender is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a 10 percent"
"shareholder of Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a controlled foreign corporation described in Section 881(c)(3)(C) of the Internal Revenue Code (a U.S. Tax Compliance Certificate) and (y) executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable (or applicable successor form); or"
"2.09 Illegality.Notwithstanding any other provision of this Agreement, if any Lender shall notify Administrative Agent and Borrower that any Law makes it unlawful, or any central bank or other Governmental Authority asserts that it is unlawful, for any Lender to perform its obligations to make or maintain Loans hereunder, the obligation of such Lender to make or maintain its Ratable Share of the Loans shall be terminated and all Loans of such Lender, all interest thereon and all other amounts payable under this Agreement to such Lender shall become due and payable.Any Lender that becomes aware of circumstances that would permit such Lender to notify Administrative Agent of any illegality under this Section 2.09 shall use its reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to change the jurisdiction of its Lending Office if the making of such change would avoid or eliminate such illegality and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender."
"(b) Administrative Agent shall also maintain accounts in which it will record (i) the amount of each Loan made hereunder, (ii) the amount of any principal or interest due and payable or to become due and payable from Borrower to each Lender hereunder, and (iii) the amount of any sum received by Administrative Agent for the benefit of Lenders hereunder from Borrower and each Lenders share thereof."
"(d) No promissory note shall be required to evidence the Loans by Lenders to Borrower. Upon the request of a Lender, Borrower shall execute and deliver to such Lender a promissory note, which shall evidence the Loans to Borrower by such Lender in addition to such records.Any promissory note issued to a Lender shall bear the following legend:"
"(b) Borrower may, upon three (3) Business Days notice (or four (4) Business Days if such notice is not received by 12:00 noon on the applicable Business Day) to Administrative Agent, request the release from the Collateral Account of Collateral Shares up to the Designated Underlying Equity Amount, and Administrative Agent shall, following receipt of such notice, instruct Custodian to release such Collateral Shares on the date specified by Borrower in such request if (i) the notice specifies the number of Collateral Shares requested to be released and (ii) the pro forma aggregate total number of Collateral Shares released pursuant to this clause (b) does not exceed the Designated Underlying Equity Amount determined as of the Second Restatement Date."
"(ix) certificates evidencing (i) the good standing of each Loan Party in its jurisdiction of formation and (ii) the qualification of such Loan Party to do business in each jurisdiction in which it is required to so qualify, in each case, dated a date not earlier than ten (10) Business Days prior to the Second Restatement Date (other than the qualification of Fulghum Fibres, Inc. in South Carolina, which shall be delivered to the Administrative Agent within three weeks of the Second Restatement Date);"
"documentation as delivered pursuant to the Existing Restated Credit Agreement and this Agreement is true, correct and complete, provided that the parties agree that (i) the documentation for the Debt referred to in Item 20 of Schedule 8(d) of the Guaranty Agreement shall not be required to be delivered until the tenth Business Day after the Second Restatement Date and (ii) the Borrower covenants to cause such delivery to occur on or prior to such date."
"(e) Administrative Agent shall have received a pro forma consolidated balance sheet for Parent Guarantor, as of the month ending February 29, 2016 and after giving effect to the transactions contemplated hereby, which balance sheet shall have been prepared in good faith by Parent Guarantor, and shall not be materially inconsistent with the forecasts previously provided to Administrative Agent."
"(f) Each of the representations and warranties contained in Article IV herein and in each of the other Loan Documents shall be true and correct in all material respects on and as of the Second Restatement Date (except to the extent that such representations and warranties relate solely to an earlier date in which case such representations and warranties shall have been true, correct and complete in all material respects on and as of such earlier date; provided, that, if a representation and warranty is qualified as to materiality, with respect to such representation and warranty the materiality qualifier set forth above shall be disregarded)."
"(b) The execution, delivery and performance by Borrower of this Agreement and the other Loan Documents to which it is a party (when delivered) and the grant by Borrower of the security interest contemplated hereby with respect to any Collateral are within its company powers, have been duly authorized by all necessary company action, and do not (i) contravene Borrowers Constituent Documents, (ii) contravene any contractual restriction binding on it or require any consent under any material agreement or instrument to which it is a party or by which any of its properties or assets is bound, (iii) result in or require the creation or imposition of any Liens upon any property or assets of Borrower other than Permitted Liens, or (iv) violate any Law (including, but not limited to, the Securities Act of 1933 and the Exchange Act and the regulations thereunder) or writ, judgment, injunction, determination or award."
"(m) Borrower has filed all U.S. federal and state income tax returns and all other tax returns which are required to be filed by it in all jurisdictions and has paid all taxes, assessments, claims, governmental charges or levies imposed on it or its properties, except where the failure to file such tax returns or pay such taxes or other amounts could not reasonably be expected to have a Material Adverse Effect or for taxes contested in good faith by appropriate proceedings diligently conducted and as to which adequate reserves have been provided in accordance with GAAP.Borrower has not entered into an agreement or waiver or been requested in writing to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of taxes of Borrower and is not aware of any circumstances that would cause the taxable years or other taxable periods of Borrower not to be subject to the normally applicable"
"(n) (i) The present fair value of Borrowers assets exceeds the total amount of Borrowers liabilities (including, without limitation, contingent liabilities), (ii) Borrower has capital and assets sufficient to carry on its businesses, (iii) Borrower is not engaged and is not contemplating engagement in a business or a transaction for which its remaining assets are unreasonably small in relation to such business or transaction and (iv) Borrower does not intend to incur or believe that it will incur debts beyond its ability to pay as they become due.Borrower will not be rendered insolvent by the execution, delivery and performance of documents relating to this Agreement or by the consummation of the transactions contemplated under this Agreement."
"(dd) (i) None of the Loan Parties and none of their respective Subsidiaries are, and to Borrowers knowledge none of their respective Affiliates are, in violation of any requirement of Law relating to terrorism or money laundering (collectively, AML Laws), including, but not limited to, Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001 (the Executive Order), the Patriot Act, and any other enabling legislation or executive order relating thereto, and other federal, state, local or foreign laws relating to know your customer and antimony laundering rules and regulations."
"(iii) None of the Loan Parties, none of their respective Subsidiaries and, to Borrowers knowledge, none of their respective Affiliates and no broker or other agent of any Loan Party acting in any capacity in connection with the Facility (A) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any person described in clause (ii) above, (B) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order or other applicable OFAC regulations, or (C) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any applicable AML Law."
"If any Loan Party acquires or forms any Subsidiary, each of the foregoing representations and warranties referring to any Subsidiary of a Loan Party shall be thereafter deemed modified to cover, on a prospective basis, the Loan Parties and their respective Subsidiaries (including such Loan Partys newly acquired or formed Subsidiary), mutatis mutandis."
"(vii) promptly, and in any event within two (2) Business Days after receipt thereof by Borrower or any Affiliate of Borrower, copies of each notice or other correspondence received from the SEC concerning any investigation or possible investigation or other similar inquiry by such agency regarding any Loan Party (for the avoidance of doubt, routine trading inquiries not involving any Loan Party shall not be covered by this clause (vii));"
"(viii) as soon as possible and in any event within two (2) Business Days after Borrower obtains actual knowledge of the occurrence of (A) any Event of Default or Default, (B) any actual or threatened litigation which, if adversely determined to Borrower, could reasonably be expected to result in a Material Adverse Effect, and (C) any event which could reasonably be expected to result in a Material Adverse Effect, in each case, a statement of a Responsible Officer of Borrower setting forth the details thereof and the action which Borrower has taken and proposes to take with respect thereto;"
"(d) Inspection Rights.At any reasonable time during normal business hours and upon reasonable prior notice, from time to time permit any Lender Party or any agent or representative thereof (in each case, subject to Section 8.12) to (i) visit and inspect the properties of Borrower and discuss the affairs, finances, assets and accounts of Borrower with any of Borrowers officers, directors or other representatives and (ii) discuss the affairs, finances, assets and accounts of Borrower with Borrowers independent certified public accountants and to examine and make copies of and abstracts from their records and books of account, all at the expense of Borrower; provided, however, that after the occurrence of an Event of Default, any Lender Party (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of Borrower at any time during normal business hours and without advance notice."
"(h) Separate Corporate Existence.(i) Maintain all accounts separate from the accounts of any Affiliate of Borrower, and ensure that the funds of Borrower will not be diverted to any other Person, nor will such funds be commingled with the funds of any Affiliate or any shareholder of Borrower, (ii) ensure that, to the extent it shares the same officers, employees, vendors or facilities as any of its partners or Affiliates, the material expenses related hereto shall be fairly allocated among such entities, (iii) enter into all material transactions with any of its Affiliates only on an arms length basis, (iv) conduct its affairs strictly in accordance with the Constituent Documents of Borrower, and observe all necessary, appropriate and customary corporate formalities, including, but not limited to, passing all resolutions or consents to the extent necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts, and (v) not assume or guarantee any of the liabilities of its Affiliates or any of its shareholders or any Affiliate thereof."
"(k) (i) a formal investigation that could be expected to result in a material adverse effect on any Loan Party by any Governmental Authority in connection with a specific alleged violation or breach of law by any Loan Party has been publicly announced or becomes known to the public; provided, that for the avoidance of doubt any requests for information or inquiries by any Governmental Authority that are not connected with allegations of a specific violation or breach of law by any Loan Party shall not be covered by this clause (k); (ii) commencement of an official enforcement proceeding or filing of criminal or civil charges against any Loan Party by any Governmental Authority with respect to any violation or breach, by any Loan Party, of any anti-fraud or fiduciary provisions of federal or state securities laws applicable to any Loan Party; or (iii) indictment of any principal officer of any Loan Party, acting in such officers capacity as such, for fraud or violation or breach of securities law, rule or regulation; or"
"7.02 Rights as a Lender.If the Person serving as Administrative Agent hereunder also acts as a Lender hereunder, it 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 Administrative Agent and the term Lender or Lenders shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as Administrative Agent hereunder in its individual capacity.Administrative Agent 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 Borrower or other Affiliate (including Issuer) thereof as if such Person were not Administrative Agent hereunder and without any duty to account therefor to Lenders."
"(f) change any provision of this Section 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; or"
"(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 telecopier 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:"
"8.03 No Waiver; Remedies.No failure on the part of any Lender Party to exercise, and no delay in exercising, any right hereunder or under any other Loan Document shall operate as a waiver thereof nor shall the single or partial exercise of any such right 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 Law.No notice to or demand on Borrower in any case shall entitle Borrower to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of any Lender Party to any other or further action in any circumstances without notice or demand."
"(c) Subject to acceptance and recording thereof by Administrative Agent, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lenders rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 2.07, 2.08, 2.10, and 8.04 with respect to facts and circumstances occurring prior to the effective date of such assignment.Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (f) of this Section."
"and warranties have been or will be relied upon by Administrative Agent and each other Lender Party, regardless of any investigation made by Administrative Agent or any other Lender Party or on their behalf and notwithstanding that Administrative Agent or any other Lender Party may have had notice or knowledge of any Default or Event of Default at the time of making any Loan, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied."
"Assignee will not, without the prior written consent of Assignor, disclose any confidential information with respect to Assignor furnished to it under this Agreement or otherwise, except as may be required to comply with any applicable law or the request of any regulatory body (including, but not limited to, any self-regulatory organization) having jurisdiction over Assignee or pursuant to legal process or otherwise as required in connection with litigation(and Assignee agrees that it will, to the extent reasonably practicable and if permitted by applicable law, give Assignor prior notice of such disclosure reasonably sufficient to permit Assignor to contest such disclosure)."
"2. Payments.From and after the Effective Date, Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts that have accrued to but excluding the Effective Date and to the Assignee for amounts that have accrued from and after the Effective Date."
"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 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 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."
"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 IRS Form W-8BEN-E, as applicable (or applicable successor form) or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable (or applicable successor form) 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."
"Reference is hereby made to the Second Amended and Restated Term Loan Credit Agreement dated as of April 1, 2016 (as amended, supplemented or otherwise modified from time to time, the Credit Agreement), among Rentech Nitrogen Holdings, Inc., as Borrower, Credit Suisse AG, Cayman Islands Branch, as Administrative Agent and each Lender from time to time party thereto."
"C. In connection with the Credit Agreement, (i) Guarantors (other than Wilhelmina Creative, LLC, Artists at Wilhelmina LLC, and Wilhelmina Licensing (Texas) LLC) executed and delivered to Bank that certain Unlimited Guaranty dated April20, 2011, (ii) Wilhelmina Creative, LLC, at the time of its formation as an additional subsidiary of Borrower, executed and delivered to Bank pursuant to Section 4.14 of the Credit Agreement that certain Unlimited Guaranty dated effective as of May 25, 2012, and (iii) Artists at Wilhelmina LLC and Wilhelmina Licensing (Texas) LLC executed and delivered to Bank those certain Unlimited Guaranties dated effective October 24, 2015 (collectively, the Guaranty Agreements)."
"Section 5.7. Successors and Assigns. This Amendment is binding upon and shall inure to the benefit of the parties hereto and their respective successors, assigns, heirs, executors, and legal representatives, except that none of the parties hereto other than Bank may assign or transfer any of its rights or obligations hereunder without the prior written consent of Bank."
" |  | LW1, INC., ---|---|---  |  | a California corporation  |  |   |  | By: | /s/ Jim McCarthy  |  |  | Jim McCarthy  |  |  | Chief Financial Officer  |  |   |  |   |  | WILHELMINA CREATIVE, LLC, a Florida limited liability company  |  |   |  | By: | /s/ Jim McCarthy  |  | | Jim McCarthy  |  | | Chief Financial Officer  |  |   |  |   |  | ARTISTS AT WILHELMINA LLC,  |  | a Florida limited liability company  |  |   |  | By: | /s/ Jim McCarthy  |  |  | Jim McCarthy  |  |  | Chief Financial Officer "
"""Educational Approval"" means any license, authorization, approval, certification or accreditation, issued or required to be issued by an Educational Agency with respect to any aspect of a Borrower's school's operations in order for such school or any location or educational program thereof to operate or participate in Title IV, but excluding approvals or licenses with respect to the activities of individual recruiters at any school."
"""Governmental Authority"" means any national, state or local government (whether domestic or foreign), any political subdivision thereof or any other governmental, quasigovernmental, judicial, administrative, public or statutory instrumentality, authority, body, agency, bureau, commission, board, department or other entity (including, without limitation, the Federal Deposit Insurance Corporation, the Comptroller of the Currency or the Federal Reserve Board, any central bank or any comparable authority) or any arbitrator with authority to bind a party at law."
"""Indebtedness"" of any Person means, without duplication, (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (iii) all obligations of such Person under conditional sale or other title retention agreements relating to Property used and/or acquired by such Person, (iv) all obligations of such Person in respect of the deferred purchase price of Property or services (excluding accounts payable incurred in the ordinary course of business), (v) 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, (vi) all guarantees by such Person of Indebtedness of others, (viii) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (ix) all obligations, contingent or otherwise, of such Person in respect of bankers' acceptances, and (x) all other liabilities and obligations which would be classified in accordance with GAAP as indebtedness on a balance sheet or to which reference should be made in footnotes thereto. The amount of any guarantee shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such guarantee is made and (b) the maximum amount for which the Person giving such guarantee may be liable pursuant to the terms of the agreement embodying such guarantee unless such primary obligation and the maximum amount for which such Person may be liable are not stated or determinable, in which case the amount of such guarantee shall be such Person's maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith."
"""One Month LIBOR Rate"" means, as of any date of determination, a rate of interest per annum equal to the one month London interbank offered rate for Dollar loans in effect two (2) Business Days prior to such date, as reported in (i) the appropriate display page of the website of Thomson Reuters, or (ii) if not so reported therein, then as determined by the Bank from another recognized source or interbank quotation. If such rate is no longer available for any reason, the Bank will choose a new index which is based upon comparable information. The Bank will give Borrower notice of this choice."
"""Prime Rate"" means the rate of interest per annum established from time to time by the Bank as its prime lending rate for commercial loans. Each change in the Prime Rate shall result in a corresponding change in the Prime Rate on the effective date of such change in the Prime Rate. The Prime Rate is a reference rate that does not necessarily represent the lowest or best rate actually charged to any customer. The Bank may make commercial loans or other loans at rates of interest at, above or below such Prime Rate."
"During the Availability Period, the Bank agrees from time to time to issue or cause an affiliate to issue Letters of Credit at one hundred percent (100%) margin against the available funds in the Cash Collateral Account (defined below); provided, however, that the aggregate drawn and undrawn amount of all outstanding Letters of Credit shall not at any time exceed $9,500,000.00. The form and substance of each Letter of Credit shall be subject to the approval of the Bank, in its sole discretion. Each Letter of Credit shall be issued for a term not to exceed three hundred sixty-five (365) days, as designated by the Borrower; provided however, that no Letter of Credit shall have an expiration date more than three hundred sixty-five (365) days beyond the Maturity Date. Standby letters of credit may include a provision providing that their expiry date will automatically be extended each year for an additional one year period unless the Bank delivers notice to the contrary. The undrawn amount of all Letters of Credit shall be reserved and such amount shall not be available for borrowings. Each Letter of Credit shall be subject to the additional terms and conditions of the Letter of Credit agreements, applications, and any related documents required by the Bank in connection with the issuance of Letters of Credit. The Borrower shall deposit in a cash collateral account with the Bank (the ""Cash Collateral Account""), an amount equal to the aggregate outstanding undrawn face amount of all Letters of Credit which remain outstanding at any time. The Borrower grants a security interest in such Cash Collateral Account to the Bank. Amounts held in the Cash Collateral Account shall be applied by the Bank to the payment of drafts drawn under such Letters of Credit and to the obligations and liabilities of the Borrower and the Bank, in such order of application as the Bank may in its sole discretion elect."
"(a) Borrower may from time to time during the Availability Period request, upon at least five (5) Business Days' notice given not later than 12:00 P.M. (New York time), that the Bank issue a Letter of Credit by delivering to the Bank (i) a Letter of Credit Application specifying the date on which such Letter of Credit is to be issued (which shall be a Business Day), the expiration date thereof, the Stated Amount thereof and the name and address of the Beneficiary thereof; and (ii) such other information and documents as the Bank reasonably requires in accordance with its customary practices for the issuance of letters of credit."
"(b) The Revolving Maturity Date will be considered renewed for an additional twelve (12) months if and only if the Bank has sent to the Borrower a written notice of renewal (the ""Renewal Notice""), which Renewal Notice shall be sent at least thirty (30) days prior to the Revolving Maturity Date."
"(b) So long as no Default or Event of Default shall have occurred and be continuing, if at any time insufficient funds are received by and available to the Bank to pay fully all amounts of outstanding draws on any Letter of Credit, interest and fees, if any, then due hereunder, such funds shall be applied (i) first, to the payment of all fees and expenses due from the Borrower to the Bank, other than late fees; (ii) second, to the payment of accrued and unpaid interest; (iii) third, to the payment of the outstanding draws on any Letter of Credit then due hereunder, and (iv) fourth, to the payment of all late fees due from the Borrower to the Bank."
"(a) In the event that any amount is drawn under a Letter of Credit by the Beneficiary thereof, the Borrower shall immediately pay to the Bank the full amount drawn, which amount shall be withdrawn immediately by the Bank from the Cash Collateral Account. If the full amount drawn cannot be paid immediately from the Cash Collateral Account, interest will accrue at a rate per annum equal to the One-Month LIBOR Rate plus four percent (4.0%). In such event, the Borrower agrees that the Bank, it its sole discretion, may debit any account maintained by the Borrower with the Bank for the amount of any such drawing."
"(b) The Borrower shall reimburse the Bank for the full amount of all Indemnified Taxes or Other Taxes paid by the Bank on or with respect to any payment by or on account of any obligation of the Borrower under the Loan Documents (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) and any penalties, interest and expenses arising therefrom or with respect thereto (other than any such penalties, interest or expenses that are incurred by the Bank's unreasonably taking or omitting to take action with respect to such Indemnified Taxes or Other Taxes), within thirty (30) days after written demand therefor, setting forth in reasonable detail the basis for and calculation of such amounts, 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 Borrower by the Bank shall be conclusive absent manifest error. In the event that the Bank determines that it received a refund or credit for Indemnified Taxes or Other Taxes paid by the Borrower under this Section, the Bank shall promptly notify the Borrower of such fact and shall remit to the Borrower the amount of such refund or credit."
"The Loan Documents (other than the Note) constitute, and the Note, when issued and delivered pursuant hereto for value received, will constitute, the valid and legally binding obligations of the Borrower party thereto, enforceable in accordance with their respective terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally."
"The Borrower has heretofore delivered to the Bank the balance sheet of the Borrower as of the December Fiscal Year end and the related statements of income, retained earnings and cash flows (or changes in financial position, as the case may be) for such Fiscal Year (the ""Financial Statements""), each of which fairly present the financial condition of the Borrower and its consolidated Subsidiaries on such dates and results of operations for the years ended on such dates, and have been prepared in conformity with GAAP. Except as reflected in the Financial Statements or in the notes thereto, the Borrower does not have any obligation or liability of any kind (whether fixed, accrued, contingent, unmatured or otherwise) which, in accordance with GAAP, should have been shown on the Financial Statements and was not. Since the date of the Financial Statements, the Borrower has conducted its business only in the ordinary course and there has been no Material Adverse Change."
"(a) The representations and warranties of the Borrower set forth in each Loan Document shall be true and correct in all material respects (provided that if any representation or warranty is by its terms qualified by concepts of materiality, such representation or warranty shall be true and correct in all respects) on and as of the date of such Letter of Credit, except to the extent such representations and warranties specifically relate to an earlier date, in which case the accuracy of such representations and warranties shall be determined as of such earlier date."
"The Borrower shall keep proper books of record and account in which full, true and correct entries shall be made in accordance with GAAP throughout the periods involved, and the Borrower shall furnish to the Bank promptly following any request therefor, (A) all documentation and other information that the Bank reasonably requests as necessary in order for it to comply with its ongoing obligations under applicable ""know your customer"" and anti-money laundering rules and regulations, including the USA Patriot Act, and (B) such other information regarding the operations, business affairs and financial condition of the Borrower, or compliance with the terms of the Loan Documents, as the Bank may reasonably request."
"The Borrower shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and do or cause to be done all things reasonably necessary to preserve, renew and keep in full force and effect the rights, licenses, permits, privileges, franchises, trademarks, copyrights and patents material to the conduct of its business."
"(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or its or his debts, or of a substantial part of its or his assets, under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or for a substantial part of its or his assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered; or"
"No modification or waiver of or with respect to any provision of this Agreement, the Note, and all other agreements, instruments and documents delivered pursuant hereto or thereto, nor consent to any departure by the Borrower from any of the terms or conditions thereof, shall in any event be effective unless it shall be in writing and signed by both parties, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on the Borrower (not otherwise required by the terms hereof) shall, of itself entitle the Borrower to any other or further notice or demand in similar or other circumstances. This Agreement embodies the entire agreement and understanding between the Bank and the Borrower and supersedes all prior agreements and understandings relating to the subject matter hereof."
"All covenants, agreements, representations and warranties made by the Borrower herein and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the Bank and shall survive the execution and delivery of any Loan Document and the issuance of any Letter of Credit, regardless of any investigation made by the Bank or on its behalf and notwithstanding that the Bank may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Letter of Credit or any fee or any other amount payable under the Loan Documents is outstanding and unpaid and so long as the Revolving Facility has not expired or terminated. The provisions of Section 9.5 shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of outstanding draws under any Letters of Credit and the termination of the Revolving Facility or the termination of this Agreement or any provision hereof."
"(c) To the 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, any Loan Document or any agreement, instrument or other document contemplated thereby, the Transactions or any Letter of Credit or the use of the proceeds thereof."
"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 AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION."
"Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Letter of Credit, together with all fees, charges and other amounts that are treated as interest on such Letter of Credit under applicable law (collectively the ""charges""), shall exceed the maximum lawful rate (the ""maximum rate"") that may be contracted for, charged, taken, received or reserved by the Bank in accordance with applicable law, the rate of interest payable in respect of such Letter of Credit hereunder, together with all of the charges payable in respect thereof, shall be limited to the maximum rate and, to the extent lawful, the interest and the charges that would have been payable in respect of such Letter of Credit but were not payable as a result of the operation of this Section 9.14 shall be cumulated, and the interest and the charges payable to the Bank in respect of other Letters of Credit or periods shall be increased (but not above the maximum rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by the Bank."
" | (b) | Representations; Default. Both before and after giving effect to this Amendment Agreement, the following statements by the Borrower shall be true and correct (and the Borrower, by its execution of this Amendment Agreement, hereby represents and warrants to the Administrative Agent and the Lenders that such statements are true and correct as at such times): ---|---|--- "
"Section4.1. Ratifications. The terms and provisions set forth in this Amendment Agreement shall modify and supersede all inconsistent terms and provisions set forth in the Agreement and except as expressly modified and superseded by this Amendment Agreement, the terms and provisions of the Agreement and the other Loan Documents are ratified and confirmed and shall continue in full force and effect. The Borrower, the Administrative Agent and the Lenders agree that the Agreement as amended hereby and the other Loan Documents shall continue to be legal, valid, binding and 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). For all matters arising prior to the effective date of this Amendment Agreement, the Agreement (as unmodified by this Amendment Agreement) shall control."
"Section4.3 . Government Approval, Regulation, etc. The execution, delivery and performance by the Borrower of this Amendment Agreement (a)does not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect and except for filings necessary to perfect Liens created pursuant to the Collateral Documents, and (b)will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of the Borrower or any of its Restricted Subsidiaries or any order of any Governmental Authority."
"(a) Each of Bank of America, Wells Fargo Bank, National Association, SunTrust Bank, PNC Bank, National Association, Citizens Bank, Goldman Sachs Bank USA, Regions Bank and Florida Community Bank (each an Incremental Lender and collectively, the Incremental Lenders) hereby agrees to provide a Term Loan Commitment to the Borrower in an amount equal to its Term Loan Commitment set forth on Schedule 2.01 attached hereto. Each Incremental Lenders Applicable Percentage of the aggregate amount of Term Loan Commitments as of the date hereof shall be as set forth on Schedule 2.01 attached hereto. The existing Schedule 2.01 to the Credit Agreement shall be deemed to be amended to include the information set forth on Schedule 2.01 attached hereto."
"Joint Lead Arrangers means Merrill Lynch, Pierce, Fenner & Smith Incorporated (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporations or any of its subsidiaries investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement) and Wells Fargo Securities, in their capacities as joint lead arrangers and joint bookrunners."
"(c) Certificates. Receipt of (A) a compliance certificate from a Responsible Officer of the Borrower demonstrating compliance with the financial covenants in Section 7.07 of the Credit Agreement after giving effect to the Additional Term Loan established pursuant to this Agreement on a Pro Forma Basis (assuming for purposes hereof, that such Additional Term Loan is fully drawn and funded), and (B) a certificate from a Responsible Officer of the Borrower certifying that the conditions set forth in Sections 2.01(c)(v), 5.02(a)(i) and 5.02(a)(ii) of the Credit Agreement have been satisfied."
"(d) Fees and Expenses. Receipt by the Administrative Agent and the Lenders of all fees then owing on the Effective Date and receipt by legal counsel to the Administrative Agent of all reasonable and documented fees, expenses and disbursements required to be paid on or before the Effective Date that have been invoiced a reasonable period of time prior to the Effective Date."
"Sanctioned Country means a country or territory, or a country or territory whose government is subject to a sanctions program identified on the list maintained by OFAC and available at http://www.treasury.gov/resource- center/sanctions/Programs/Pages/Programs.aspx, or as otherwise published from time to time, or subject to any other sanctions program of the United States of America, the United Nations, the Norwegian State, the European Union, the United Kingdom or any agency or subdivision thereof."
"Eurodollar Rate means, for the Interest Period for each Eurodollar Rate Advance comprising the same Borrowing, the British Bankers Association LIBOR (or the successor thereto if the British Bankers Association is no longer making a LIBOR available) (BBA LIBOR), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) for deposits in Dollars at 11:00 a.m. (London, England time) two Business Days before the first day of such Interest Period and for a period equal to such Interest Period; provided, that, if such rate is not available to the Administrative Agent for any reason, the Eurodollar Rate shall be an interest rate per annum equal to the rate per annum at which deposits in Dollars are offered by the principal office of Socit Gnrale in London, England to prime banks in the London interbank market at 11:00 a.m. (London, England time) two Business Days before the first day of such Interest Period in an amount substantially equal to the Eurodollar Rate Advance to be maintained by the Lender that is the Administrative Agent in respect of such Borrowing and for a period equal to such Interest Period; provided further, that, if the Eurodollar Rate shall be less than zero, such rate shall be deemed to be zero."
"Lender Insolvency Event means that (i) a Lender or its Parent Company is insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors, (ii) other than via an Undisclosed Administration, such Lender or its Parent Company is the subject of a proceeding under any Debtor Relief Law, or a receiver, custodian, trustee, conservator, intervenor or sequestrator or the like has been appointed for such Lender or its Parent Company, or such Lender or its Parent Company has taken any action in furtherance of or indicating its"
"(ii) The Borrower shall deliver to the Administrative Agent and each Lender on or before each August 31, beginning August 31, 2014, an Internal Engineering Report dated effective as of the immediately preceding June 30, an updated Schedule 4.20 (Hedging Agreements) setting forth the information indicated in Section 4.20 as of the date such Schedule is delivered, and such other information as may be reasonably requested by the Administrative Agent or any Lender with respect to the Oil and Gas"
"(A) Borrowing Base Reduction Amount means (x) with respect to a Disposition of Oil and Gas Properties by a Loan Party, an amount equal to the PV-10, as determined by the Administrative Agent in its sole discretion, of such Oil and Gas Properties, and (y) with respect to a Hedge Termination, the reduction in Collateral value, as determined by the Administrative Agent in its sole discretion, of the Oil and Gas Properties which are given value in the Borrowing Base in effect as of the most recent redetermination, resulting from such Hedge Termination."
"(A) Upon any reductions to the Borrowing Base pursuant to Section 2.02(d) in connection with a Disposition, if a Borrowing Base Deficiency exists, then the Borrower shall prepay Advances or, if the 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 aggregate amount equal to the lesser of (1) the amount necessary to cure the Borrowing Base Deficiency and (2) 100% of the net cash proceeds of such Disposition."
"(C) Upon any Hedge Termination, regardless of whether the Borrowing Base is reduced in connection with such Hedge Termination, the Borrower shall prepay Advances or, if the 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 aggregate amount equal to 100% of the net cash proceeds of such Hedge Termination."
"6.02(l) and in existence on the Second Amendment Effective Date) and (b) shall, and shall cause each Subsidiary to, grant to the Administrative Agent an Acceptable Security Interest in at least 90% of the PV-10 of the Proven Reserves of the Borrower and its Subsidiaries based on its most recently delivered Engineering Report."
"(ii) (A) Mortgages or other Security Instruments as are necessary or reasonably requested by the Administrative Agent to create an Acceptable Security Interest of all of the Property set forth on Schedule 5.14(d) and (B) surveys, environmental reports, title commitments and title insurance policies, consents, transfer letters, and other items reasonably requested by the Administrative Agent in connection therewith;"
"(iv) with respect to any Property that will become a Mortgaged Property pursuant to this Section 5.14(d) on which a building or mobile home (in each case, as such terms are defined for purposes of the National Flood Insurance Program) is located, (A) a flood determination certificate issued by the appropriate Governmental Authority or third party indicating whether such Property is designated as a flood hazard area and (B) if such Property is designated to be in a flood hazard area, evidence of flood insurance on such property obtained by the applicable Loan Party in such total amount as required by Regulation H of the Federal Reserve Board, and all official rulings and interpretations thereunder or thereof, and otherwise in compliance with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973;"
"Section 5.15 Hedge Contracts. The Borrower shall maintain its position in the Hydrocarbon Hedge Agreements through their stated termination dates, as set forth in Schedule 4.20 as in effect from time to time; provided, however, that Borrower may consummate a Hedge Termination with respect to such Hydrocarbon Hedge Agreements if the Borrower uses 100% of the net cash proceeds thereof in accordance with the terms of Section 2.05(b)(ii)."
"SECTION 9.20 Acknowledgment and Consent to Bail-In of EEA Financial Institutions. 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:"
"Section 4. Reaffirmation of Guaranty. Each Guarantor hereby ratifies, confirms, and acknowledges that its obligations under the Guaranty are in full force and effect and that such Guarantor continues to unconditionally and irrevocably guarantee the full and punctual payment, when due, whether at stated maturity or earlier by acceleration or otherwise, of all of the Obligations, as such Obligations may have been amended by this Agreement. Each Guarantor hereby acknowledges that its execution and delivery of this Agreement do not indicate or establish an approval or consent requirement by such Guarantor under the Guaranty in connection with the execution and delivery of amendments, modifications or waivers to the Credit Agreement, the Notes or any of the other Loan Documents."
"(b) (i) the execution, delivery, and performance of this Agreement are within the corporate, limited liability company or other power and authority of the Borrower or such Guarantor, as applicable, and have been duly authorized by appropriate proceedings and (ii) this Agreement constitutes a legal, valid, and binding obligation of the Borrower or such Guarantor, as applicable, enforceable against the Borrower or such Guarantor in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the rights of creditors generally and general principles of equity; and"
"Thence S 47 31' 03"" W continuing along a northwest line of said 2,800.07 acre tract, a southeast line of said 5,794.93 acre tract, and a southeast line of this tract, a distance of 188.53 feet to a 5/8"" iron rod found for an angle corner of said 2,800.07 acre tract, an angle corner of said 5,794.93 acre tract, and an angle corner of this tract;"
"Thence S 89 30' 53"" W along the north line of said 2,800.07 acre tract, the south line of said 5794.93 acre tract, and the south line of this tract, a distance of 5,673.44 feet to a 5/8"" iron rod with surveyors cap stamped RPLS 1907 set for the southwest corner of this tract;"
"(d) All articles of personal property of every kind and nature whatsoever owned by Borrower or any Guarantor located on and used in connection with the HQ Land or the HQ Improvements, including, but not limited to, all inventory, equipment, furniture, shades, awnings, beds, screens, and carpets, now or hereafter affixed to, attached to or placed upon, and used in connection with the use, enjoyment, occupancy or operation (including the planning, development and financing) of the HQ Land or HQ Improvements, but excluding any such articles of personal property belonging to any tenant of the HQ Land or HQ Improvements unless it is necessary to the operation of the HQ Improvements (collectively, the HQ Personal Property);"
"This AMENDMENT NO. 1 TO CREDIT AGREEMENT (this Amendment), dated as of April 14, 2016 is made by and among PANERA BREAD COMPANY, a Delaware corporation (the Borrower), BANK OF AMERICA, N.A. (Bank of America), in its capacity as administrative agent for the Lenders (defined below) (in such capacity, the Administrative Agent), and each of the Lenders signatory hereto. Capitalized terms used but not otherwise defined herein have the respective meanings ascribed to them in the Credit Agreement as defined below."
"WHEREAS, the Borrower, Bank of America, as Administrative Agent, and the lenders from time to time party thereto (collectively, the Lenders) have entered into that certain Term Loan Agreement dated as of July 16, 2015 (as hereby amended and as from time to time hereafter further amended, modified, supplemented, restated, or amended and restated, the Credit Agreement); and"
"WHEREAS, in connection with the foregoing, the Borrower has advised the Administrative Agent and the Lenders that it desires to amend certain provisions of the Credit Agreement, and the Administrative Agent and the Lenders signatory hereto, collectively constituting the Required Lenders, are willing to effect such amendments on the terms and conditions contained in this Amendment;"
"D) The Lender and Borrower desire to amend and restate the Existing Loan Agreement, to among other things, establish a term loan facility for up to US$8,000,000, subject to certain conditions and in consideration of the representations, warranties, covenants, security and other undertakings hereinafter contained, which term loan facility of US$8,000,000 together with the Existing Loan Balance amount in the aggregate of US$26,928,571.20, being the sum now secured by this Agreement and the Security Documents; and"
"1.43 Legal Requirements means, with respect to any Person or its property, shall mean all laws, statutes, codes, acts, ordinances, permits, licenses, authorizations, directions and requirements of all governmental departments, commissions, boards, courts, authorities and agencies, and any material deed restrictions or other requirements or record, applicable to such Person or such property, or any portion thereof or interest therein or any use or condition of such property or any portion thereof or interest therein (including those relating to zoning, planning, subdivision, building, safety, health, use, environmental quality and other similar matters)."
"1.45 LIBOR means, in relation to any period for which an interest rate is to be determined, the London interbank offered rate administered by the ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) (where such is available for the relevant currency and period) appearing at or about 11:00 hours a.m. London time on the relevant Reuters screen page(s)two business days before the first day of such interest period for a period equal to such interest period. The period between the day of each advance and the day of payment in full of the principal amount of each advance shall be divided into successive periods, each such period being an interest period;"
"1.72 Subsidiary means, with respect to any Person, any corporation or other legal entity of which more than fifty per cent (50%), of the outstanding capital stock or other equity interests having ordinary voting power to elect a majority of the board of directors or other applicable governing body of such corporation or entity (irrespective of whether at the time capital stock or other equity interests of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency) is at the time directly or indirectly owned by such Person, by such Person and one or more other Subsidiaries of such Person, or by one or more other Subsidiaries of such Person."
"1.81 With respect to (i)any date or time period occurring and ending prior to the Amendment Effective Date, the rights and obligations of the parties hereto shall be governed by the Existing Loan Agreement and the Security Documents, which for such purposes shall remain in full force and effect; and (ii)any date or time period occurring or ending on or after the Restatement Effective Date, the rights and obligations of the parties hereto shall be governed by this Agreement and the Security Documents. This Agreement is an amendment and restatement of the Existing Loan Agreement, it being acknowledged and agreed that the principal amount outstanding under the Existing Loan Agreement constitutes the same obligations evidenced by this Agreement and that this Agreement is in no way intended to constitute a novation of the Existing Loan Agreement or the principal amount outstanding thereunder. From and after the Amendment Effective Date, any reference in any Security Documents to the Existing Loan Agreement shall be deemed to be a reference to this Agreement and in the event of any conflict or inconsistency between the provisions of this Agreement and the Security Documents provided hereunder and those of the Existing Loan Agreement and the Security Documents provided thereunder, the provisions of this Agreement and the Security Documents provided hereunder shall prevail. Without limiting the generality of the foregoing, the parties agree that all indebtedness of the Borrower, including principal and interest, outstanding on the date of this Agreement under the Existing Loan Agreement shall, on and after the Amendment Effective Date, be deemed to be indebtedness outstanding hereunder under this Agreement and subject to the terms of this Agreement. All Security Documents between any one or more of the parties hereto or issued by a Borrower to the Bank, including current account documents, are hereby ratified and confirmed in all respects and shall continue in full force and effect. The Borrower hereby undertakes to enter into any amending agreements that may be reasonably required by the Bank to ensure that all Security Documents secure all of the Obligations."
"The Borrower shall make mandatory prepayment of the Loan, plus the Make Whole Amount (if any) but without Prepayment Fee as follows: (i)in an amount equal to the expropriation proceeds and/or insurance proceeds received by Borrower from the Insurance Policies to the extent such amounts are not applied to restoration or repair"
"Upon (i)the prepayment of all or part of the Loan after the Fixed Interest Rate Notice Date by the Borrower under Section2.6 and/or 2.7, or (ii)the Lender accelerating the Loan after the Fixed Interest Rate Notice Date, as set out in Section9.2 hereof, the Borrower shall, in addition to any other amount then payable by the Borrower pursuant to the terms hereof, in respect of the amount to be prepaid (the Prepayment Amount), pay to the Lender, in Dollars, an amount (such amount, the Make-Whole Amount) equal to the one-time payment, if any, that the Lender would be required to pay, if the Lender were to enter into a notional fixed-to-floating interest rate swap (the Swap) with an acceptable investment grade financial institution counterpart, having the terms set out below;"
"4.1 The obligations of the Bank to make available Advances hereunder and amendments under this Agreement are subject to the performance by the Borrower of all the Borrowers obligations set out hereunder and which are to be performed prior to disbursement of any Advance under the Facility B. Prior to the first Advance under Facility B, the Borrower shall provide the Bank with the following, each in a form and substance satisfactory to the Bank (the date of which all such conditions have been satisfied or waived in the sole discretion of the Bank, herein referred to as the Amendment Effective Date):"
"payable to the Lender under this Agreement and the transactions it contemplates, (such reasonable amounts with any reasonable costs incurred by Lender for the termination of the funding arrangements, (e.g. break-funding costs related to the Lenders cancellation or prepayment of existing funding arrangements)), any reasonable documented, and out-of-pocket legal or business costs incurred by the Lender in order to investigate, assess, attempt to maintain or terminate the Loan, as mandated by competent authorities or reasonably determined by the Lender to be necessary and desirable and any other reasonable documented out-of-pocket costs, unforeseen by the Lender as of the Original Effective Date hereof, directly related to the purpose of this applicable section."
"8.2 The obligations expressed as being assumed by the Borrower under this Agreement constitute the Borrowers legal, valid and binding obligations, enforceable against the Borrower in accordance with their respective terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors generally and general principles of equity;"
"(b) the entering into and performance of this Agreement, Security Documents and the documents set out in Appendices, by the Borrower, (including any action brought by or on behalf of the Borrower as a result of any determination by the Lender to suspend the Lenders obligations to make Advances pursuant to Section9.2 of the Agreement or to terminate an Advance pursuant to Section7 of the Agreement but not including any breach of this Agreement and any breach of the documents set out in Appendices thereto by the Lender); and"
"(c) any investigation, litigation or proceeding which relates directly to the Borrower related to any aspect of this Agreement, Security Documents and the documents set out in Appendices thereto, except, (in relation to (a), (b)and (c)above), for any such Indemnified Liabilities arising for the account of a particular Indemnified Party by reason of the relevant Indemnified Parties gross negligence, bad faith, or willful misconduct."
"FOR VALUE RECEIVED, Seven Seas Water (Trinidad) Unlimited, having its principal office located at First Floor, Briar Place, 10 Sweet Briar Road, St. Clair, Port-of-Spain, Trinidad& Tobago the Republic of Trinidad& Tobago (the Borrower) by this promissory note (this Promissory Note) hereby unconditionally promises to pay to the order of The Bank of Nova Scotia at 44 King Street West, Toronto, Ontario, Canada M5H IHI (the Lender), the principal sum of UNITED STATES DOLLARS (US$) or such lesser amount as shall be advanced by the Lender to the Borrower and evidenced hereby as set forth on the grid attached hereto as Schedule 1, in instalments as hereinafter provided and to pay interest on the principal balance from time to time outstanding, on each Payment Date, such interest accruing at a rate equal to one month LIBOR plus the Margin Facility B until the first Payment Date following the Fixed Interest Rate Date notice and at:"
"All payments to be made by the Borrower under this Promissory Note shall be made in United States Dollars in immediately available and freely transferable funds no later than 1:00 pm (Eastern time) on the date on which due, without set-off, counterclaim, deduction, withholding on account of taxes levied or imposed under the laws of the Republic of Trinidad& Tobago subject, however, to the provisions of Section11.8 of the Credit Agreement."
"1.11. Subsidiary means, with respect to any Person, any corporation or other legal entity of which more than 50% of the outstanding capital stock or equity interests having ordinary voting power to elect a majority of the board of directors or other applicable governing body of such corporation or entity (irrespective of whether at the time capital stock or other equity interests of any other class or classes of such corporation or other legal entity shall or might have voting power upon the occurrence of any contingency) is at the time directly or indirectly owned by such Person, by such Person and one or more other Subsidiaries of such Person, or by one or more other Subsidiaries of such Person."
"This Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by any Person upon the insolvency, bankruptcy or reorganization of the Borrower or otherwise, all as though such payment had not been made."
"Subsidiaries, to collect and enforce, and to submit claims in respect of, Subordinated Obligations and to apply any amounts received thereon to the Guaranteed Obligations (including any and all Post Petition Interest), and (ii)to require the Guarantor and its Subsidiaries (A)to collect and enforce, and to submit claims in respect of, Subordinated Obligations and (B)to pay any amounts received on such obligations to the Lender for application to the Guaranteed Obligations (including any and all Post Petition Interest)."
"7.1 Continuing Guarantee; Assignments. This Guarantee is a continuing guarantee and shall (a)remain in full force and effect until the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guarantee, (b)be binding upon the Guarantor, its successors and assigns, and (c)inure to the benefit of and be enforceable by the Lender and the Lenders and their successors, transferees and assigns. Without limiting the generality of clause(c)of the immediately preceding sentence, the Lender may assign or otherwise transfer all or any portion of its rights and obligations under this Agreement (including, without limitation, the Promissory Note held by it) to any other Person with the prior written consent of the Guarantor (not to be unreasonably withheld or delayed), and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such assignor herein. The Guarantor shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lender."
"WHEREAS, the Loan Parties (defined herein), the lenders from time to time party thereto, and Wells Fargo (as defined herein), as administrative agent, have entered into that certain Third Amended and Restated Credit Agreement, dated as of May 30, 2014 (as amended or modified from time to time, the Existing Credit Agreement); and"
"WHEREAS, the Loan Parties wish to amend and restate the Existing Credit Agreement to (a) provide for loans and other financial accommodations to the Loan Parties in an aggregate principal amount of up to $750,000,000, (b) appoint Bank of America, N.A., as Administrative Agent, Swingline Lender and an L/C Issuer, and (c) make certain other amendments and modifications to the Existing Credit Agreement, all as more fully set forth herein."
"Acquisition means the acquisition, whether through a single transaction or a series of related transactions, of (a) a majority of the Voting Stock or other controlling ownership interest in another Person (including the purchase of an option, warrant or convertible or similar type security to acquire such a controlling interest at the time it becomes exercisable by the holder thereof), whether by purchase of such equity or other ownership interest or upon the exercise of an option or warrant for, or conversion of securities into, such equity or other ownership interest, or (b) assets of another Person which constitute all or substantially all of the assets of such Person or of a division, line of business or other business unit of such Person."
"Additional Secured Obligations means (a) all obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements, and (b) all costs and expenses incurred in connection with enforcement and collection of the foregoing, including the fees, charges and disbursements of counsel, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided, that, Additional Secured Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor."
"Alternative Currency Equivalent means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the Administrative Agent or the L/C Issuer, 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 Alternative Currency with Dollars."
"Applicable Time means, with respect to any borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment."
"Appropriate Lender means, at any time, (a) with respect to any Facility, a Lender that has a Commitment with respect to such Facility or holds a Loan under such Facility at such time, (b) with respect to the Letter of Credit Sublimit, (i) the L/C Issuers and (ii) if any Letters of Credit have been issued pursuant to Section 2.03 (or any Existing Letters of Credit are at such time outstanding), the Revolving Lenders and (c) with respect to the Swingline Sublimit, (i) the Swingline Lender and (ii) if any Swingline Loans are outstanding pursuant to Section 2.04(a), the Revolving Lenders."
"Consolidated Interest Coverage Ratio means, as of any date of determination, the ratio of (a) Consolidated EBITDAP for the Measurement Period most recently ended on or prior to such date to (b) Consolidated Interest Charges (net of interest income) for the Measurement Period most recently ended on or prior to such date. Notwithstanding the foregoing, for any calculation of the Consolidated Interest Charge Coverage Ratio occurring prior to the one-year anniversary of the Closing Date, actual Consolidated Interest Charges shall be annualized for purposes of calculating Consolidated Interest Charges for the relevant Measurement Period."
"Consolidated Net Leverage Ratio means, as of any date of determination, the ratio of (a) the total of (i) Consolidated Funded Indebtedness of the Borrower and its Restricted Subsidiaries 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."
"Defaulting Lender means, subject to Section 2.15(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 the Administrative Agent and the Borrower 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 the Administrative Agent, any L/C Issuer, the Swingline 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 Swingline Loans) within two (2) Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, any L/C Issuer or the Swingline 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 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 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, and the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower, each L/C Issuer, the Swingline Lender and each other Lender promptly following such determination."
"Excluded Property means, with respect to any Loan Party, (a) (i) any owned real property other than the Mortgaged Properties, and (ii) any leased real property, (b) unless requested by the Administrative Agent or the Required Lenders, any personal property (including, without limitation, motor vehicles) in respect of which perfection of a Lien is not either (i) governed by the Uniform Commercial Code or (ii) effected by appropriate evidence of the Lien being filed in either the United States Copyright Office or the United States Patent and Trademark Office, (c) the Equity Interests of any Subsidiary to the extent not required to be pledged to secure the Secured Obligations pursuant to Section 6.14(a), (d) any property which, subject to the terms of Section 7.02(c), is subject to a Lien of the type described in Section 7.01(c) pursuant to documents that prohibit such Loan Party from granting any other Liens in such property, (e) any real or personal property as to which the Administrative Agent and the Borrower agree in writing that the costs or other consequences of obtaining a security interest or perfection thereof are excessive in view of the benefits to be obtained by the Secured Parties therefrom, (f) any intent-to-use application for registration of a Trademark (as defined in the Security Agreement) of such Loan Party filed in the United States Patent and Trademark Office pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. 1051, prior to the filing of a Statement of Use pursuant to Section 1(d) of the Lanham Act or an Amendment to Allege Use pursuant to Section 1(c) of the Lanham Act with respect thereto, solely to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of any registration that issues from such intent-to-use application under applicable federal law, and (g) any general intangible, investment property or other right of any Loan Party arising under any contract, instrument, license or other document if (but only to the extent that) the grant of a security interest therein would constitute a violation of a valid and enforceable restriction in respect of such general intangible, investment property or other right in favor of a third party or under any law, regulation, permit, order or decree of any Governmental Authority, unless and until all required consents shall have been obtained; provided, that, (i) any such restriction described in this clause (g) on the security interests granted under the Collateral Documents shall only apply to the extent that any such restriction could not be rendered ineffective pursuant to the UCC or any other applicable Law or principles of equity and (ii) in the event of the termination or elimination of any such restriction, a security interest in such assets shall be automatically and simultaneously granted under the Collateral Documents and such assets shall be included as Collateral."
"Excluded Swap Obligation means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a Lien 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 thereof) by virtue of such Guarantors failure for any reason to constitute an eligible contract participant as defined in the Commodity Exchange Act (determined after giving effect to Section 10.11 and any other keepwell, support or other agreement for the benefit of such Guarantor and any and all guarantees of such Guarantors Swap Obligations by other Loan Parties) at the time the Guaranty of such Guarantor, or grant by such Guarantor of a Lien, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a Master Agreement governing more than one Swap Contract, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Swap Contracts for which such Guaranty or Lien is or becomes excluded in accordance with the first sentence of this definition."
"Foreign Lender means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the 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 the Borrower is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction."
"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 (1), two (2), three (3) or six (6) months thereafter (or, in the case of the initial Revolving Borrowing and the initial Term Borrowing, such other period as may be agreed by the Administrative Agent) (in each case, subject to availability for the interest rate applicable to the relevant currency), as selected by the Borrower in its Loan Notice, or such other period that is twelve (12) or fewer months requested by the Borrower and consented to by all of the Lenders with respect to the Facility under which such Eurocurrency Rate Loan is to be made; provided, that:"
"Laws means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law."
"Lien means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), 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)."
"Loan Documents means, collectively, this Agreement, the Notes, the Guaranty, the Collateral Documents, the Fee Letter, each Issuer Document, each Incremental Term Loan Lender Joinder Agreement, each Joinder Agreement, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.14, the Intercreditor Agreement, any intercreditor agreement entered into by the Administrative Agent in connection with Additional Second Lien Indebtedness, any subordination agreement entered into by the Administrative Agent in connection with any Indebtedness permitted hereunder, the Successor Agency Agreement, and all other certificates, agreements, documents and instruments executed and delivered, in each case, by or on behalf of any Loan Party pursuant to the foregoing (but specifically excluding any Secured Hedge Agreement and any Secured Cash Management Agreement)."
"Mortgage or Mortgages means, individually and collectively, as the context requires, each of the fee mortgages, deeds of trust and deeds executed by a Loan Party that purports to grant a Lien to the Administrative Agent (or a trustee for the benefit of the Administrative Agent) for the benefit of the Secured Parties in any Mortgaged Properties, in form and substance satisfactory to the Administrative Agent."
"Net Cash Proceeds means the aggregate cash or Cash Equivalents proceeds received by any Loan Party or any Restricted Subsidiary (other than an Excluded Subsidiary) in respect of any Disposition, Debt Issuance, or Recovery Event, net of (a) direct costs whether paid or accrued (including, without limitation, legal, accounting and investment banking fees, and sales commissions associated therewith), (b) with respect to any Disposition, amounts held in escrow to be applied as part of the purchase price of any Disposition, (c) taxes paid or payable as a result thereof, (d) with respect to any Disposition or Recovery Event, payment of the outstanding principal amount of, premium (if any) and interest on any Indebtedness secured by a Lien on the assets subject to such Disposition or Recovery Event, and (e) with respect to any Disposition or Recovery Event, amounts payable directly or indirectly to Governmental Authorities for such Disposition or Recovery Event to the extent required by such Governmental Authorities or Contractual Obligations. The term Net Cash Proceeds shall include, without limitation, any cash or Cash Equivalents proceeds from the sale or other disposition of any non-cash consideration (but only as and when such cash is actually received) received by any Loan Party or any Restricted Subsidiary (other than an Excluded Subsidiary) in any Disposition, Debt Issuance, or Recovery Event and any cash or Cash Equivalents released from escrow as part of the purchase price in connection with any Disposition."
"Recovery Event means the receipt by any Loan Party or any Restricted Subsidiary (other than any Excluded Subsidiary) of any cash insurance proceeds or condemnation or expropriation award payable by reason of theft, loss, physical destruction or damage, taking or similar event with respect to any of their respective property or assets other than obsolete property or assets no longer used or useful in the business of the Borrower and its Restricted Subsidiaries."
"Restricted Payment means (a) any dividend or other distribution, direct or indirect, on account of any shares (or equivalent) of any class of Equity Interests of the Borrower or any of its Restricted Subsidiaries, now or hereafter outstanding, (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares (or equivalent) of any class of Equity Interests of the Borrower or any of its Restricted Subsidiaries, now or hereafter outstanding, (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of Equity Interests of any Loan Party or any of its Restricted Subsidiaries, now or hereafter outstanding, and (d) any payment made in cash to holders of Convertible Bond Indebtedness in excess of the original principal (or notional) amount thereof and interest thereon (and, to the extent not permissible to be satisfied with shares of common stock, customary redemption, mandatory conversion or similar premiums, if any)."
"Revaluation Date means (a) with respect to any Loan, each of the following: (i) each date of a Borrowing of a Eurocurrency Rate Loan denominated in an Alternative Currency, (ii) each date of a continuation of a Eurocurrency Rate Loan denominated in an Alternative Currency pursuant to Section 2.02, and (iii) such additional dates as the Administrative Agent shall determine or the Required Lenders shall require; and (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance, amendment and/or extension of a Letter of Credit denominated in an Alternative Currency, (ii) each date of any payment by an L/C Issuer under any Letter of Credit denominated in an Alternative Currency, (iii) in the case of all Existing Letters of Credit denominated in Alternative Currencies, the Closing Date, and (iv) such additional dates as the Administrative Agent or an L/C Issuer shall determine or the Required Lenders shall require."
"Revolving Lender means, at any time, (a) so long as any Revolving Commitment is in effect, any Lender that has a Revolving Commitment at such time or (b) if the Revolving Commitments have terminated or expired, any Lender that has a Revolving Loan or a participation in L/C Obligations or Swingline Loans at such time."
"Swingline Loan Notice means a notice of a Swingline Borrowing pursuant to Section 2.04(b), which shall be substantially in the form of Exhibit M or such other form as reasonably 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."
"Term Lender means (a) on the Closing Date, any Lender that has a Term Commitment at such time, (b) at any time during the Availability Period in respect of the Term Facility, any Lender that has a Term Commitment at such time, and (c) at any time after the Availability Period in respect of the Term Facility, any Lender that holds Term Loans at such time."
"Weighted Average Life to Maturity means, when applied to any Indebtedness at any date of determination, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one twelfth) that will elapse between such date of determination and the making of such payment by (b) the then outstanding principal amount of such Indebtedness as of such date of determination."
"(a) 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 will shall be construed to have the same meaning and effect as the word shall. Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including the Loan Documents and any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, amended and restated, modified, extended, restated, replaced or supplemented from time to time (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Persons successors and assigns, (iii) the words hereto, herein, hereof and hereunder, and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Preliminary Statements, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the Loan Document in which such references appear, (v) 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, and (vi) 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. Any and all references to Borrower regardless of whether preceded by the term a, any, each of, all, and/or, or any other similar term shall be deemed to refer, as the context requires, to each and every (and/or any one or all) parties constituting the Borrower, individually and/or in the aggregate."
"(c) Consolidation of Variable Interest Entities. All references herein to Consolidated financial statements of the Borrower and its Subsidiaries or to the determination of any amount for the Borrower and its Subsidiaries on a Consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that the Borrower is required to consolidate pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary as defined herein."
"(b) Any such request shall be made to the Administrative Agent not later than 11:00 a.m., twenty (20) Business Days prior to the date of the desired Credit Extension (or such other time or date as may be agreed by the Administrative Agent and, in the case of any such request pertaining to Letters of Credit, each L/C Issuer, in its or their sole discretion). In the case of any such request pertaining to Eurocurrency Rate Loans, the Administrative Agent shall promptly notify each Lender thereof; and in the case of any such request pertaining to Letters of Credit, the Administrative Agent shall promptly notify each L/C Issuer thereof. Each Lender (in the case of any such request pertaining to Eurocurrency Rate Loans) or each L/C Issuer (in the case of a request pertaining to Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m., ten (10) Business Days after receipt of such request whether it consents, in its sole discretion, to the making of Eurocurrency Rate Loans or the issuance of Letters of Credit, as the case may be, in such requested currency."
"(c) Any failure by a Lender or an L/C Issuer, as the case may be, to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such Lender or such L/C Issuer, as the case may be, to permit Eurocurrency Rate Loans to be made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and all of the Lenders consent to making Eurocurrency Rate Loans in such requested currency and the Administrative Agent and the Lenders reasonably determine that an appropriate interest rate is available to be used for such requested currency, the Administrative Agent shall so notify the Borrower and (i) the Administrative Agent and the Lenders may amend the definition of Eurocurrency Rate for any Non-LIBOR Quoted Currency to the extent necessary to add the applicable Eurocurrency Rate for such currency and (ii) to the extent the definition of Eurocurrency Rate reflects the appropriate interest rate for such currency or has been amended to reflect the appropriate rate for such currency, such currency shall thereupon be deemed for all purposes to be an Alternative Currency for purposes of any Borrowings of Eurocurrency Rate Loans. If the Administrative Agent and each L/C Issuer consent to the issuance of Letters of Credit in such requested currency, the Administrative Agent shall so notify the Borrower and (A) the Administrative Agent and the L/C Issuers may amend the definition of Eurocurrency Rate for any Non-LIBOR Quoted Currency to the extent necessary to add the applicable Eurocurrency Rate for such currency and (B) to the extent the definition of Eurocurrency Rate reflects the appropriate interest rate for such currency or has been amended to reflect the appropriate rate for such currency, such currency shall thereupon be deemed for all purposes to be an Alternative Currency, for purposes of any Letter of Credit issuances. If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section 1.09, the Administrative Agent shall promptly so notify the Borrower. Any specified currency of an Existing Letter of Credit that is neither Dollars nor one of the Alternative Currencies specifically listed in the definition of Alternative Currency shall be deemed an Alternative Currency with respect to such Existing Letter of Credit only."
"(a) Term Borrowings. Subject to the terms and conditions set forth herein, each Term Lender severally agrees to make a term loan to the Borrower in Dollars in one (1) advance on any Business Day during the Availability Period for the Term Facility, in an aggregate amount not to exceed such Lenders Term Commitment. Each Term Borrowing shall consist of Term Loans made simultaneously by the Term Lenders in accordance with their respective Term Commitments. Term Borrowings repaid or prepaid may not be reborrowed. Term Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein; provided, however, any Term Borrowing made on the Closing Date or any of the three (3) Business Days following the Closing Date shall be made as Base Rate Loans unless the Borrower delivers a Funding Indemnity Letter not less than three (3) Business Days prior to the date of such Term Borrowing."
"(b) Advances. Following receipt of a Loan Notice for a Facility, the Administrative Agent shall promptly notify each Appropriate Lender of the amount and currency of its Applicable Percentage under such Facility of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Appropriate Lender of the details of any automatic conversion to Base Rate Loans or continuation of Loans denominated in a currency other than Dollars, in each case as described in Section 2.02(a). In the case of a Borrowing, each Appropriate Lender shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at the Administrative Agents Office for the applicable currency not later than 1:00 p.m., in the case of any Loan denominated in Dollars, and not later than the Applicable Time specified by the Administrative Agent in the case of any Loan in an Alternative Currency, in each case on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.03 (and, if such Borrowing is (x) the initial Credit Extension, Section 4.01, and (y) the initial Term Borrowing, Section 4.02), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower; provided, however, that if, on the date a Loan Notice with respect to a Revolving Borrowing denominated in Dollars is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Revolving Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings, and second, shall be made available to the Borrower as provided above."
"(d) Notice of Interest Rates. The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the 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."
"(f) Cashless Settlement Mechanism. Notwithstanding anything to the contrary in this Agreement, any Lender may exchange, continue or rollover all or the portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Borrower, the Administrative Agent and such Lender."
"(ii) Institution of Incremental Term Facilities. The Borrower may at any time from the date of the Term Borrowing pursuant to Section 2.01(a) until the date that is six (6) months prior to the Term Facility Maturity Date, upon prior written notice to the Administrative Agent, institute an Incremental Term Facility from one or more Incremental Term Lenders; provided, that:"
"(E) any Revolving Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to such L/C Issuer (in its sole discretion) with the Borrower or such Revolving Lender to eliminate such L/C Issuers actual or potential Fronting Exposure (after giving effect to Section 2.15(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or"
"(v) 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 the Letter of Credit."
"(vi) Each L/C Issuer shall act on behalf of the Revolving Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX 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 Issuer Documents pertaining to such Letters of Credit as fully as if the term Administrative Agent as used in Article IX included such L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to such L/C Issuer."
"(ii) Each Revolving Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds available (and the Administrative Agent may apply Cash Collateral provided for this purpose) for the account of the applicable L/C Issuer, in Dollars, at the Administrative Agents Office for Dollar- denominated payments in an amount equal to its Applicable Revolving Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Revolving Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the applicable L/C Issuer in Dollars."
"(v) Each Revolving Lenders obligation to make Revolving Loans or L/C Advances to reimburse an L/C Issuer for amounts drawn under Letters of Credit, 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, the Borrower, any Restricted Subsidiary 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 Revolving Lenders obligation to make Revolving Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.03 (other than delivery of a 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 such L/C Issuer under any Letter of Credit, together with interest as provided herein."
"(ii) If any payment received by the Administrative Agent for the account of an L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by such L/C Issuer in its discretion), each Revolving Lender shall pay to the Administrative Agent for the account of such L/C Issuer its Applicable Revolving Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the applicable Overnight Rate from time to time in effect. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement."
"(e) Obligations Absolute. The obligation of the Borrower to reimburse each 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:"
"(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, no L/C Issuer shall have any responsibility to obtain any document (other than any sight or time draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of any L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Revolving Lenders, the Required Lenders or the Required Revolving Lenders, as applicable, (ii) any action taken or omitted in the absence of gross negligence or willful misconduct, or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Borrowers pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of any L/C Issuer shall be liable or responsible for any of the matters described in Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against an L/C Issuer, and an L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves, as determined by a final nonappealable judgment of a court of competent jurisdiction, were caused by such L/C Issuers willful misconduct or gross negligence or such L/C Issuers willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, each L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and no L/C Issuer shall be responsible for the validity or sufficiency of any instrument transferring, endorsing or assigning or purporting to transfer, endorse 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."
"(i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The Borrower shall pay directly to (i) Bank of America, as an L/C Issuer for its own account, a fronting fee with respect to each Letter of Credit issued by Bank of America, at the rate per annum specified in the Fee Letter, computed on the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears, and due and payable on or prior to the date that is ten (10) Business Days following each fiscal quarter end, 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) each other L/C Issuer, a fronting fee with respect to each Letter of Credit issued by such L/C Issuer at a rate separately agreed between such L/C Issuer and the Borrower. 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. In addition, the Borrower shall pay directly to each L/C Issuer for its own account, in Dollars, the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of such L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable."
"(i) reasonably prior to the time that such L/C Issuer issues, amends, renews, increases or extends a Letter of Credit, the date of such issuance, amendment, renewal, increase or extension and the stated amount of the applicable Letters of Credit after giving effect to such issuance, amendment, renewal or extension (and whether the amounts thereof shall have changed);"
"(v) for so long as any Letter of Credit issued by an L/C Issuer is outstanding, such L/C Issuer shall deliver to the Administrative Agent (A) on the last Business Day of each calendar month, (B) at all other times a Letter of Credit Report is required to be delivered pursuant to this Agreement, and (C) on each date that (1) an L/C Credit Extension occurs or (2) there is any expiration, cancellation and/or disbursement, in each case, with respect to any such Letter of Credit, a Letter of Credit Report appropriately completed with the information for every outstanding Letter of Credit issued by such L/C Issuer."
"(m) Letters of Credit Issued for Restricted Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Restricted Subsidiary, the Borrower shall be obligated to reimburse the applicable L/C Issuer hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Restricted Subsidiaries inures to the benefit of the Borrower, and that the Borrowers business derives substantial benefits from the businesses of such Restricted Subsidiaries."
"(i) The Swingline Lender at any time in its sole discretion may request, on behalf of the Borrower (which hereby irrevocably authorizes the Swingline Lender to so request on its behalf), that each Revolving Lender make a Base Rate Loan in an amount equal to such Lenders Applicable Revolving Percentage of the amount of Swingline 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 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 Revolving Facility and the conditions set forth in Section 4.03. The Swingline Lender shall furnish the 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 Applicable Revolving Percentage of the amount specified in such Loan Notice available to the Administrative Agent in Same Day Funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swingline Loan) for the account of the Swingline Lender at the Administrative Agents Office for Dollar-denominated payments not later than 1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Revolving Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender."
"(iv) Each Revolving Lenders obligation to make Revolving Loans or to purchase and fund risk participations in Swingline Loans pursuant to this Section 2.04(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 the Swingline Lender, the 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 Revolving Lenders obligation to make Revolving Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.03 (other than delivery of a Loan Notice). No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swingline Loans, together with interest as provided herein."
"(iv) Recovery Events. 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 Recovery Events; 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 Recovery Events in any fiscal year is equal to or greater than $25,000,000 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 Recovery Event), so long as no Default or Event of Default shall have occurred and be continuing at the time of such Recovery Event 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 Recovery Event (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 (iv) shall be applied as set forth in clause (v) below."
"(v) Application of Payments. Each prepayment of Loans pursuant to the foregoing provisions of Sections 2.05(b)(ii) through (iv) shall be applied, first, to the Term Loans and any Incremental Term Loans on a pro rata basis and to the principal repayment installments thereof in the inverse order of maturity, second, to outstanding Swingline Loans, and third, to outstanding Revolving Loans (without a corresponding permanent reduction of the Revolving Facility). Subject to Section 2.15, such prepayments shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of each of the relevant Facilities."
"(ii) The Administrative Agent will promptly notify the Lenders of any termination or reduction of the unused portion of the aggregate Term Commitments under this Section 2.06. Upon any reduction of the unused portion of the aggregate Term Commitments, the Term Commitment of each Term Lender shall be reduced by such Lenders ratable portion of such reduction amount. All fees in respect of the Term Facility accrued until the effective date of any termination of the Term Facility shall be paid on the effective date of such termination."
"(a) Maintenance of Accounts. The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. 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 Borrower 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 Borrower 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 Borrower 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, currency and maturity of its Loans and payments with respect thereto."
"(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurocurrency Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 Noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lenders share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in Same Day Funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the Overnight Rate, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans or in the case of Alternative Currencies in accordance with such market practice, in each case, as applicable. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lenders Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent."
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
"(a) Certain Credit Support Events. If (i) an 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, (ii) as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, (iii) the Borrower shall be required to provide Cash Collateral pursuant to Section 2.05 or 8.02(c), or (iv) there shall exist a Defaulting Lender, the Borrower shall immediately (in the case of clause (iii) above) or within one (1) Business Day (in all other cases) following any request by the Administrative Agent or such L/C Issuer, provide Cash Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (iv) above, after giving effect to Section 2.15(a)(iv) and any Cash Collateral provided by the Defaulting Lender). Additionally, if the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all L/C Obligations at such time exceeds one hundred five percent (105%) of the Letter of Credit Sublimit then in effect, then within two (2) Business Days after receipt of such notice, the Borrower shall provide Cash Collateral for the Outstanding Amount of the L/C Obligations in an amount not less than the amount by which the Outstanding Amount of all L/C Obligations exceeds the Letter of Credit Sublimit."
"(b) Grant of Security Interest. The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuers and the Lenders, and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.14(c). If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent or any L/C Issuer as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in one or more blocked, non-interest bearing deposit accounts at Bank of America. The Borrower shall pay on demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral."
"(i) Each of the Loan Parties shall, and does hereby, jointly and severally indemnify each Recipient, and shall make payment in respect thereof within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified 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 Borrower by a Lender or an L/C Issuer (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. Each of the Loan Parties shall also, and does hereby, jointly and severally indemnify the Administrative Agent, and shall make payment in respect thereof within ten (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 pursuant to Section 3.01(c)(ii) below."
"(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 copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;"
"(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 an L/C Issuer, or have any obligation to pay to any Lender or any L/C Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such Lender or such L/C Issuer, as the case may be. If any Recipient determines, in its sole discretion exercised in good faith, that it has received a refund, credit or other reduction of any Taxes (a Tax Benefit) 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 Section 3.01, it shall pay to such Loan Party an amount equal to such Tax Benefit (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section 3.01 with respect to the Taxes giving rise to such Tax Benefit), net of all out-of-pocket expenses (including Taxes) incurred in obtaining such Tax Benefit by such Recipient, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such Tax Benefit), provided that each Loan Party, upon the request of the Recipient, agrees to repay the amount paid over to such 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 Tax Benefit 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 such 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 Tax subject to indemnification and giving rise to such Tax Benefit 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 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."
"(b) Notwithstanding the foregoing, if the Administrative Agent has made the determination described in clause (a)(i) of this Section, the Administrative Agent, in consultation with the Borrower and the Appropriate Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (i) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (a)(i) of this Section, (ii) the Administrative Agent or the Appropriate Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (iii) any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrower written notice thereof."
"(e) Delay in Requests. Failure or delay on the part of any Lender or any L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not constitute a waiver of such Lenders or such L/C Issuers right to demand such compensation, provided, that, the Borrower shall not be required to compensate a Lender or an L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that such Lender or such L/C Issuer, 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 L/C Issuers intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine (9) month period referred to above shall be extended to include the period of retroactive effect thereof)."
"including any loss of anticipated profits, any foreign exchange losses and 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 or from the performance of any foreign exchange contract. The Borrower shall also pay customary administrative fees charged by such Lender in connection with the foregoing."
"(a) Designation of a Different Lending Office. If any Lender requests compensation under Section 3.04, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender, any L/C Issuer, or any Governmental Authority for the account of any Lender or any L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then at the request of the Borrower, such Lender or such L/C Issuer shall, as applicable, 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 Lender or such L/C Issuer, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or Section 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender or such L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or such L/C Issuer, as the case may be. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or any L/C Issuer in connection with any such designation or assignment."
"(iv) a budget of the Borrower and its Subsidiaries on a Consolidated basis, including forecasts prepared by management of the Borrower, of Consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries for each year following the Closing Date to the Stated Maturity Date."
"(i) (A) searches of UCC filings in the jurisdiction of incorporation or formation, as applicable, of each Loan Party and each jurisdiction where any Collateral is located or where a filing would need to be made in order to perfect the Administrative Agents security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens and (B) tax lien, judgment and bankruptcy searches;"
"Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Agreement 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 a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto."
"There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Loan Parties, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against any Loan Party or any Restricted Subsidiary or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document or any of the transactions contemplated hereby, or (b) either individually or in the aggregate could reasonably be expected to have a Material Adverse Effect."
"(b) None of the properties currently or formerly owned or operated by any Loan Party or any of the Restricted Subsidiaries during the last five (5) years is listed or proposed for listing on the NPL or on the CERCLIS; there are no, and to the knowledge of the Loan Parties, there have never been any, underground or above-ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned or operated by any Loan Party or any of the Restricted Subsidiaries or, to the best of the knowledge of the Loan Parties, on any property formerly owned or operated by any Loan Party or any of the Restricted Subsidiaries; there is no asbestos or asbestos- containing material on any property currently owned or operated by any Loan Party or any of the Restricted Subsidiaries; and Hazardous Materials have not been released, discharged or disposed of on any property currently or formerly owned or operated by any Loan Party or any of the Restricted Subsidiaries in violation of, or in a manner requiring any reporting, investigation, response, remediation, removal, cleanup or monitoring action pursuant to, any Environmental Law, in each case of this clause (b) where such occurrences and events could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect."
"The properties of the Borrower and its Restricted Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of the Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the applicable Loan Party or the applicable Restricted Subsidiary operates. The general liability, casualty, property, terrorism and business interruption insurance coverage of the Loan Parties as in effect on the Closing Date is outlined as to carrier, policy number, expiration date, type, amount and deductibles on Schedule 5.10 and such insurance coverage complies with the requirements set forth in this Agreement and the other Loan Documents."
"Each Loan Party and the Restricted 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 (a) not yet delinquent or (b) 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 any Loan Party or any Restricted Subsidiary that would, if made, have a Material Adverse Effect, nor is there any tax sharing agreement applicable to the Borrower or any Restricted Subsidiary."
"(a) Except for the Multiemployer Plan described on Schedule 5.12, each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other federal or state laws. Each Pension Plan that is intended to be a qualified plan under Section 401(a) of the Code has received a favorable determination letter or is subject to a favorable opinion letter from the IRS to the effect that the form of such Plan is qualified under Section 401(a) of the Code and the trust related thereto has been determined by the IRS to be exempt from federal income tax under Section 501(a) of the Code, or an application for such a letter is currently being processed by the IRS. To the best knowledge of the Loan Parties, nothing has occurred that would prevent or cause the loss of such tax-qualified status."
"(c) (i) Except for the Multiemployer Plan described on Schedule 5.12, no ERISA Event has occurred, 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 or Multiemployer Plan, (ii) as of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is sixty percent (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 sixty percent (60%) as of the most recent valuation date, (iii) 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; (iv) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA, and (v) 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."
"(a) The provisions of the Collateral Documents are effective to create in favor of the Administrative Agent for the benefit of the Secured Parties a legal, valid and enforceable first priority Lien (subject to Permitted Liens) on all right, title and interest of the respective Loan Parties in the Collateral described therein. Except for filings completed prior to the Closing Date and as contemplated hereby and by the Collateral Documents, no filing or other action will be necessary to perfect or protect such Liens."
"(c) Set forth on Schedule 5.19(c), as of the Closing Date, is a list of all real property located in the United States that is owned or leased by any Loan Party (in each case, including (i) the name of the Loan Party owning (or leasing) such property, (ii) with respect to each Mortgaged Property, the number of buildings located on such property, (iii) the property address, and (iv) the city, county, state and zip code which such property is located)."
"Except as set forth on Schedule 5.22, there are no collective bargaining agreements or Multiemployer Plans covering the employees of any Loan Party or any Restricted Subsidiary as of the Closing Date. Neither any Loan Party nor any Restricted Subsidiary has suffered any strikes, walkouts, work stoppages or other material labor difficulty within the last five (5) years preceding the Closing Date."
"Set forth on Schedule 5.23 is a complete and accurate list of all Material Contracts of the Loan Parties and their Restricted Subsidiaries in effect as of the Closing Date. Other than as set forth on Schedule 5.23, each Material Contract is, and after giving effect to the transactions contemplated hereby will be, in full force and effect in accordance with the terms thereof. The Loan Parties and their Restricted Subsidiaries have made available to the Administrative Agent a true and complete copy of each Material Contract requested by the Administrative Agent. No Loan Party nor any Restricted Subsidiary is in default in the performance, observance, or fulfillment of any of the obligations, covenants, or conditions contained in any Material Contract to which it is a party, except to the extent such defaults could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect."
"(b) Compliance Certificate. Concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), (i) a duly completed Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer or controller, in each case, which is a Responsible Officer of the Borrower, including (A) a certification as to whether the Loan Parties and their respective Restricted Subsidiaries have performed and observed each covenant and condition of the Loan Documents applicable to it during the period covered by the Compliance Certificate (or, if not, a listing of the conditions or covenants that have not been performed or observed and the nature and status of each such Default), (B) a certification of compliance with the financial covenants set forth in Section 7.11, including financial covenant analyses and calculation for the period covered by the Compliance Certificate and a calculation of the Available Amount as of such date, (C) for any Compliance Certificate delivered concurrently with the delivery of the financial statements referred to in Section 6.01(a), a listing of (1) 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), (D) for any Compliance Certificate delivered concurrently with the delivery of the financial statements referred to in Section 6.01(a), any updated insurance binder or other evidence of insurance for any insurance coverage of any Loan Party that was renewed, replaced or modified during the period covered by such Compliance Certificate, and (E) for any Compliance Certificate delivered concurrently with the delivery of the financial statements referred to in Section 6.01(a), an updated copy of Schedule 5.23 setting forth all Material Contracts entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (ii) a management report setting forth customary information with respect to contract backlog. Unless the Administrative Agent or a Lender requests executed originals, delivery of the Compliance Certificate may be by electronic communication including fax or email and shall be deemed to be an original and authentic counterpart thereof for all purposes."
"Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (a) on which the Borrower posts such documents, or provides a link thereto on the Borrowers website on the Internet at the website address listed on Schedule 1.01(a), or (b) 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: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its request to 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 (ii) the Borrower shall notify the Administrative Agent and each Lender (by fax transmission or e-mail transmission) of the posting of any such documents and provide to the Administrative Agent by e-mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper 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 by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents."
"Permit, during regular business hours and upon reasonable notice by the Administrative Agent or any Lender, the Administrative Agent or any Lender to visit and inspect any of its properties and examine and make abstracts from any of its books and records at any reasonable time, upon reasonable notice and as often as may reasonably be desired, and to discuss the business, operations, properties and financial and other condition of the Loan Parties with officers and employees of the Loan Parties and with their independent certified public accountants (it being understood and agreed that a representative of the Borrower may be present at any such meeting with the independent certified public accountants)."
"Within thirty (30) days (or such longer period of time as is agreed to by the Administrative Agent in its sole discretion) after the acquisition or formation of any Material Domestic Subsidiary (it being understood that any Domestic Restricted Subsidiary that is not a Material Domestic Subsidiary becoming a Material Domestic Subsidiary shall be deemed to be the acquisition of a Material Domestic Subsidiary for purposes of this Section 6.13), cause such Person to become a Guarantor hereunder by way of execution of a Joinder Agreement; provided, however, no Excluded Subsidiary shall be required to become a Guarantor. In connection with the foregoing, the Loan Parties shall deliver to the Administrative Agent, with respect to each new Guarantor to the extent applicable, substantially the same documentation required pursuant to Sections 4.01(b), (f) and (g), Section 6.14 and, if requested by the Administrative Agent in its sole discretion, favorable opinions of counsel to such Person (which should cover, among other things, legality, binding effect and enforceability), all in form, content and scope satisfactory to the Administrative Agent."
"(b) Other Property. Cause all property of each Loan Party to be subject at all times to first priority, perfected and, in the case of owned real property, title insured Liens in favor of the Administrative Agent, for the benefit of the Secured Parties, to secure the Secured Obligations pursuant to the Collateral Documents or, with respect to any such property acquired subsequent to the Closing Date, such other additional security documents as the Administrative Agent shall reasonably request and, in connection with the foregoing, deliver to the Administrative Agent such other documentation as the Administrative Agent may reasonably request including filings and deliveries necessary to perfect such Liens, Organization Documents, resolutions, Mortgaged Property Support Documents and favorable opinions of counsel to such Person, all in form, content and scope reasonably satisfactory to the Administrative Agent."
"(b) Within thirty (30) days of the Closing Date (or such later date as the Administrative Agent may agree in its sole discretion), with respect to any personal property Collateral located at any premises leased by a Loan Party and set forth on Schedule 5.19(c), to the extent requested by the Administrative Agent, use commercially reasonable efforts to obtain estoppel letters, consents and waivers from the landlords of such leased real property, which estoppel letters, consents and waivers shall be in form and substance reasonably satisfactory to the Administrative Agent."
"Each of the Loan Parties hereby covenants and agrees that on the Closing Date and thereafter until the Facility Termination Date, no Loan Party shall, nor shall it permit any Restricted Subsidiary (or, in the case of the covenants set forth in Sections 7.17 and 7.18, any Subsidiary) (other than, with respect to each covenant in this Article VII other than the covenants set forth in Sections 7.17 and 7.18, any Excluded Subsidiary) to, directly or indirectly:"
"(c) Liens securing Indebtedness permitted under Section 7.02(c); provided, that: (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness together with any accessions thereto and proceeds thereof, and (ii) such Liens attach to such property concurrently with or within one hundred twenty (120) days after the acquisition thereof;"
"(d) Liens for taxes not yet due and payable or which are being contested in good faith by appropriate proceedings diligently pursued; provided, that, (i) any proceedings commenced for the enforcement of such Liens shall have been stayed or suspended within thirty (30) days of the commencement thereof, and (ii) provision for the payment of all such taxes known to such Person has been made on the books of such Person to the extent required by GAAP;"
"(e) Indebtedness of any Target acquired after the Closing Date in a Permitted Acquisition to the extent existing at the time of such Permitted Acquisition; provided, that, (i) such Indebtedness shall not have been incurred in contemplation of such Permitted Acquisition, and (ii) the aggregate principal amount of all such Indebtedness outstanding at any one time shall not exceed an amount equal to the greater of (A) $40,000,000, and (B) two percent (2%) of Consolidated Total Assets of the Borrower and its Restricted Subsidiaries as of the end of 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, in the case of any such calculation required prior to the delivery of such financial statements, the Consolidated Total Assets of the Borrower and its Restricted Subsidiaries as of December 31, 2015);"
"(g) the Borrower or any Restricted Subsidiary may make any Restricted Payment; provided, that, (i) no Default or Event of Default shall have occurred and be continuing at the time of such Restricted Payment or would result therefrom, (ii) the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving Pro Forma Effect to such Restricted Payment, 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 (iii) the sum of (A) the aggregate amount of all such Restricted Payments plus (B) the aggregate amount of all Junior Debt Payments made in reliance on Section 7.14(b) shall not exceed an amount equal to (1) $125,000,000, plus (2) the Available Amount; provided, further, that, any Restricted Payment may be made (subject to satisfaction of clauses (i) and (ii) of this Section 7.06(g)) if the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving Pro Forma Effect to such Restricted Payment, the Consolidated Net Leverage Ratio is less than 3.25 to 1.0."
"Enter into any Sale and Leaseback Transaction, other than (a) Sale and Leaseback Transactions to the extent that (i) the property subject to such Sale and Leaseback Transaction was acquired after the Closing Date and (ii) such Sale and Leaseback Transaction is consummated within two hundred seventy (270) days of the acquisition of the property subject to such Sale and Leaseback Transaction, (b) Sale and Leaseback Transactions to the extent that the property subject to such Sale and Leaseback Transaction is owned by a Subsidiary that is not a Loan Party, (c) Sale and Leaseback Transactions as a result of a contribution of real property to any Plan pursuant to clause (g) of the definition of Disposition, and (d) any Sale and Leaseback Transaction with respect to any Mortgaged Property so long as the aggregate amount of all such Sale and Leaseback Transactions during the term of this Agreement does not exceed $100,000,000."
"Directly or indirectly, use any Credit Extension or the proceeds of any Credit Extension, or lend, contribute or otherwise make available such Credit Extension or the proceeds of any Credit Extension to any Person, to fund any activities of or business with any Person, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as Lender, Arranger, Administrative Agent, L/C Issuer, Swingline Lender, or otherwise) of Sanctions."
"(f) Insolvency Proceedings, Etc. The Borrower or any Restricted Subsidiary thereof that is a Material Domestic Subsidiary or a Material Foreign Subsidiary 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; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for sixty (60) days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for sixty (60) days, or an order for relief is entered in any such proceeding; or"
"Without limiting the provisions of Article IX, if a Default shall have occurred under the Loan Documents, then such Default will continue to exist until it either is cured (to the extent specifically permitted) in accordance with the Loan Documents or is otherwise expressly waived by the Administrative Agent (with the approval of requisite Appropriate Lenders (in their sole discretion) as determined in accordance with Section 11.01); and once an Event of Default occurs under the Loan Documents, then such Event of Default will continue to exist until it is expressly waived by the requisite Appropriate Lenders or by the Administrative Agent with the approval of the requisite Appropriate Lenders, as required hereunder in Section 11.01."
"Second, to payment of that portion of the Secured Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuers (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuers) arising under the Loan Documents and amounts payable under Article III, ratably among them in proportion to the respective amounts described in this clause Second payable to them;"
"Subject to Sections 2.03(c) and 2.14, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fourth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Secured Obligations, if any, in the order set forth above. Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts received from such Guarantor or its assets, but appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the allocation to Secured Obligations otherwise set forth above in this Section."
"Notwithstanding the foregoing, Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements shall be excluded from the application described above if the Administrative Agent has not received a Secured Party Designation Notice, 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. Each Cash Management Bank or Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX for itself and its Affiliates as if a Lender party hereto."
"The Administrative Agent shall be entitled to rely upon, and shall be fully protected in relying 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 Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Loan Parties), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. For purposes of determining compliance with the conditions specified in Section 4.01, each Lender that has signed this Agreement 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 a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objections."
"Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or any L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Secured Obligations or the rights of any Lender or any L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or any L/C Issuer or in any such proceeding."
"Each Loan Party that is a Qualified ECP Guarantor at the time the Guaranty or the grant of a Lien under the Loan Documents, in each case, by any Specified Loan Party becomes effective with respect to any Swap Obligation, 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 ECP Guarantors obligations and undertakings under this Article X voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section shall remain in full force and effect until the Secured Obligations have been indefeasibly paid and performed in full. 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 Specified Loan Party for all purposes of the Commodity Exchange Act."
(a) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the written consent of such Lender (it being understood and agreed that a waiver of any condition precedent in Section 4.03 or of any Default or a mandatory reduction in Commitments is not considered an extension or increase in Commitments of any Lender);
"(b) postpone any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due to the Lenders (or any of them) or any scheduled or mandatory reduction of the Commitments hereunder or under such other Loan Document without the written consent of each Lender entitled to such payment or whose Commitments are to be reduced;"
"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 Section 8.02 for the benefit of all the Lenders and the L/C Issuers; 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) any L/C Issuer or the Swingline Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swingline Lender, as the case may be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 11.08 (subject to the terms of Section 2.13), 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; 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 Section 8.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.13, 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."
"(a) Costs and Expenses. The Loan Parties shall pay (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable and documented fees, charges and disbursements of one primary counsel for the Administrative Agent, of one firm of special counsel (to the extent necessary) in each relevant specialty and of one firm of local counsel retained by the Administrative Agent in each applicable jurisdiction), in connection with the syndication of the credit facilities provided for herein, 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), (ii) all reasonable and documented out-of-pocket 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 out-of-pocket expenses incurred by the Administrative Agent, any Lender or any L/C Issuer (limited in the case of expenses of counsel to the reasonable and documented fees, charges and disbursements of (A) one primary counsel for the Administrative Agent and the Lenders, taken together, (B) one local counsel in each relevant jurisdiction, (C) one specialty counsel in each relevant specialty, and (D) in the case of any actual or potential conflict of interest with respect to any of the counsels identified in clauses (A) through (C) above, upon notice by the affected party or parties to the Borrower, one additional counsel to each group of similarly situated Persons in each applicable jurisdiction or specialty), in connection with the enforcement or protection of its rights (1) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (2) in connection with Loans made or Letters of Credit issued hereunder, including all such reasonable out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit."
"(f) Survival. The agreements in this Section and the indemnity provisions of Section 11.02(e) shall survive the resignation of the Administrative Agent, any L/C Issuer and the Swingline Lender, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations."
"(A) in the case of an assignment of the entire remaining amount of the assigning Lenders Commitment under any Facility and/or the Loans at the time owing to it (in each case with respect to any Facility) or contemporaneous assignments to related Approved Funds (determined after giving effect to such assignments) that equal at least the amount specified in paragraph (b)(i)(B) of this Section in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and"
"If an Event of Default shall have occurred and be continuing, each Lender, each L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, after obtaining the prior written consent of the Administrative Agent, 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 L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower or any other Loan Party against any and all of the obligations of the Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or such L/C Issuer or their respective Affiliates, irrespective of whether or not such Lender, such L/C Issuer or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower or such Loan Party may be contingent or unmatured, secured or unsecured, or are owed to a branch, office or Affiliate of such Lender or such 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, (a) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.15 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 Issuers and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Secured Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, each 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, such L/C Issuer or their respective Affiliates may have. Each Lender and each L/C Issuer agrees to notify the Borrower 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."
"This Agreement and each of the other Loan Documents 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. This Agreement, the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent or any L/C Issuer, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement or any other Loan Document, or any certificate delivered thereunder, by fax transmission or e-mail transmission (e.g. pdf or tif) shall be effective as delivery of a manually executed counterpart of this Agreement or such other Loan Document or certificate. Without limiting the foregoing, to the extent a manually executed counterpart is not specifically required to be delivered under the terms of any Loan Document, upon the request of any party, such fax transmission or e-mail transmission shall be promptly followed by such manually executed counterpart."
"If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, an L/C Issuer or the Swingline Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited."
"2. Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date."
"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 fax transmission or other electronic mail transmission (e.g. pdf or tif) 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."
"Capitalized terms used but not defined herein have the meanings set forth in the Credit Agreement. In the event of conflict between the provisions and formulas set forth in this Schedule A and the provisions and formulas set forth in the Credit Agreement, the provisions and formulas of the Credit Agreement shall prevail."
"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"
"in the event that the Borrower re-designates any Unrestricted Subsidiary (other than any Excluded Subsidiary or any other Unrestricted Subsidiary to which any Excluded Subsidiary transfers all or any significant portion of its assets after the Closing Date) as a Restricted Subsidiary after the Closing Date but prior to the Statement Date, the Fair Market Value (as determined in good faith by the Borrower (such determination to be subject to the approval of the Administrative Agent (not to be unreasonably withheld or delayed))) of the Borrowers Investment in such Unrestricted Subsidiary at the time of such re-designation"
"3. The Subsidiary Guarantor hereby acknowledges, agrees and confirms that, by its execution of this Agreement, the Subsidiary Guarantor will be deemed to be a party to the Security Agreement, and shall have all the rights and obligations of a Grantor (as such term is defined in the Security Agreement) thereunder as if it had executed the Security Agreement. The Subsidiary Guarantor hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Security Agreement. Without limiting the generality of the foregoing terms of this Paragraph 3, the Subsidiary Guarantor hereby grants and assigns to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in, and a right of set off, to the extent applicable, against any and all right, title and interest of the Subsidiary Guarantor in and to the Collateral (as such term is defined in Section 2 of the Security Agreement) of the Subsidiary Guarantor."
"4. The Subsidiary Guarantor hereby acknowledges, agrees and confirms that, by its execution of this Agreement, the Subsidiary Guarantor will be deemed to be a party to the Pledge Agreement, and shall have all the rights and obligations of a Pledgor (as such term is defined in the Pledge Agreement) thereunder as if it had executed the Pledge Agreement. The Subsidiary Guarantor hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Pledge Agreement. Without limiting the generality of the foregoing terms of this Paragraph 4, the Subsidiary Guarantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in, and a right of set off against any and all right, title and interest of the Subsidiary Guarantor in and to the Pledged Collateral (as such term is defined in Section 2 of the Pledge Agreement) of the Subsidiary Guarantor."
"(a) Set forth on Schedule 1 attached hereto are the Responsible Officers of the Subsidiary Guarantor, holding the offices indicated next to their respective names, as of the date hereof, and such Responsible Officers are the duly elected and qualified officers of the Subsidiary Guarantor and are duly authorized to execute and deliver, on behalf of the Subsidiary Guarantor, this Agreement, and the other Loan Documents."
"(b) Set forth on Schedule 2 attached hereto is a complete and accurate list as of the date hereof of (i) all Subsidiaries (including an indication as to whether such Subsidiary is a Restricted Subsidiary, Unrestricted Subsidiary and/or an Excluded Subsidiary), joint ventures and partnerships and other equity investments of the Subsidiary Guarantor, (ii) the number of shares of each class of Equity Interests in each Subsidiary Guarantor outstanding, (iii) the number and percentage of outstanding shares of each class of Equity Interests owned by the Subsidiary Guarantor and its Subsidiaries and (iv) the class or nature of such Equity Interests (i.e. voting, non-voting, preferred, etc.). The outstanding Equity Interests in all Restricted Subsidiaries of the Subsidiary Guarantor are validly issued, fully paid and non-assessable and are owned free and clear of all Liens (other than Permitted Liens). There are no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments (other than stock options granted to employees or directors and directors qualifying shares) of any nature relating to the Equity Interests of the Subsidiary Guarantor or any Restricted Subsidiary thereof, except as contemplated in connection with the Loan Documents."
"(f) Set forth on Schedule 6 attached hereto is a list of all real property located in the United States that is owned or leased by the Subsidiary Guarantor as of the date hereof (in each case, including (i) if such real property is a Mortgaged Property, the number of buildings located on such property, (ii) the property address, and (iii) the city, county (if such real property is a Mortgaged Property), state and zip code which such property is located)."
"6. The Borrower confirms that the Credit Agreement is, and upon the Subsidiary Guarantor becoming a Guarantor, shall continue to be, in full force and effect. The parties hereto confirm and agree that immediately upon the Subsidiary Guarantor becoming a Guarantor the term Obligations, as used in the Credit Agreement, shall include all obligations of the Subsidiary Guarantor under the Credit Agreement and under each other Loan Document."
"IN WITNESS WHEREOF, each of the Borrower and the Subsidiary Guarantor has caused this Agreement to be duly executed by its authorized officer, and the Administrative Agent, for the benefit of the Secured Parties, has caused the same to be accepted by its authorized officer, as of the day and year first above written."
"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:"
"This Revolving Note is one of the Revolving Notes referred to in the Credit Agreement, and the holder is entitled to the benefits thereof. Revolving 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 Note and endorse thereon the date, amount and maturity of its Revolving Loans and payments with respect thereto."
"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:"
"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 owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (b) 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)), (c) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, 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 Section 881(c)(3)(A) of the Code, (d) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (e) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code."
"The undersigned has furnished the Administrative Agent and the Borrower 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: (a) an IRS Form W-8BEN or (b) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partners/members beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (i) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (ii) the undersigned shall have at all times furnished the 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."
"Effective with its acquisition of the Pratt & Whitney Rocketdyne business in June 2013, the Borrower became a participating employer in the Western Conference of Teamsters Pension Plan (Plan) with respect to approximately 6 employees working at the Borrowers Canoga Park, California facility. As of December 31, 2014, the Borrower ceased to contribute to the Plan following negotiations with the Teamsters local union in Canoga Park, resulting in a complete withdrawal from the Plan. On January 8, 2016, the Borrower was notified by the Plan of withdrawal liability in the amount of $202,324.87, which amount was consistent with the Borrowers existing reserve for this matter. The withdrawal liability was fully paid prior to the March 10, 2016 due date."
"Unified Nexsys - In January 2013, Aerojet Rocketdyne, Inc. (formerly Aerojet- General Corporation) purchased 2,272,727 shares of Series A Preferred Stock and 454,545 shares of common stock from Unified Nexsys, Inc. representing an approximate 27% interest in Unified Nexsys. The Company wrote down its approximately $0.5 million investment in Unified Nexsys to zero in 2014."
"This Amendment No.1 to Forbearance Agreement and First Amendment to Credit Agreement (this Amendment No.1) is entered into as of April28, 2016 (the Effective Date), by and among Hercules Offshore, Inc., a Delaware corporation (the Borrower), the Subsidiary Guarantors, Jefferies Finance LLC, as administrative agent (in such capacity, the Administrative Agent) and collateral agent (in such capacity, the Collateral Agent) and the Lenders signatory hereto. Any capitalized terms not specifically defined herein will have the meaning ascribed to them in the First Amendment or the Credit Agreement."
"B. WHEREAS, the Borrower, the Subsidiary Guarantors, certain Lenders, the Administrative Agent and the Collateral Agent are parties to that certain Forbearance Agreement and First Amendment to Credit Agreement, dated as of April18, 2016 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the First Amendment);"
"(c) The execution, delivery and effectiveness of this Amendment No.1 shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent or the Collateral Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents. On and after the effectiveness of this Amendment No.1, this Amendment No.1 shall for all purposes constitute a Loan Document."
"7\. Signatures. This Amendment No.1 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 No.1 by telecopy or other electronic imaging (including in .pdf format) means shall be effective as delivery of a manually executed counterpart of this Amendment No.1\."
"2.1 Promise to Pay. Borrower hereby unconditionally promises to pay to each Lender in accordance with each Lenders respective Pro Rata Share of each Credit Facility, the outstanding principal amount of all Credit Extensions made by the Lenders under such Credit Facility and accrued and unpaid interest thereon and any other amounts due hereunder as and when due in accordance with this Agreement."
"(i) Any and all payments by or on account of any obligation of Borrower hereunder shall be made without deduction or withholding for any Taxes, except as required by applicable law. For purposes of this Section2.6(h), the term applicable law shall include FATCA. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then Borrower shall make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section2.6(h)) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made. If Borrower fails to make any such required deduction or withholding, then Agent may make any such deduction or withholding and payment to the relevant Governmental Authority."
"with applicable Laws and such other matters as Agent shall deem reasonably appropriate, which shall be due and payable on the first Business Day of the month following the date of issuance by Agent of a written request for payment thereof to any Borrower; provided, that, as long as no Default has occurred within the preceding twelve (12)months, Agent shall be entitled to such reimbursement for no more than one audit and inspection and appraisal per calendar year."
"(c) Borrower shall promptly (and in any event within 30 days of acquiring any of the following) deliver to Agent all letters of credit with an aggregate face amount in excess of $50,000 on which any Borrower is the beneficiary and which give rise to letter of credit rights owned by such Borrower which constitute part of the Collateral in each case duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance reasonably satisfactory to Agent. Borrower shall take any and all actions as may be necessary or desirable, or that Agent may reasonably request, from time to time, to cause Agent to obtain exclusive control (as defined in the Code) of any such letter of credit rights in a manner acceptable to Agent."
"(k) On the Closing Date, each Borrower will execute and deliver to Agent the Intellectual Property Security Agreement.The Intellectual Property Security Agreement shall be held in escrow by Agent, and shall not be in force and effect, unless and until the occurrence of the Springing IP Lien Event, at which time (i)the Intellectual Property Security Agreement shall immediately and automatically become effective without further action or consent by any Credit Party and (ii)Agent shall be automatically authorized to file the Intellectual Property Security Agreement (including any updated schedules thereto delivered pursuant to Section6.15(a) with the United States Patent and Trademark Office and/or United States Copyright Office, as applicable)."
"5.6 Tax Returns and Payments; Pension Contributions. Each Credit Party has timely filed all required tax returns and reports, and, except for those Taxes that are subject to a Permitted Contest, each Credit Party has timely paid all foreign, federal, state and material local Taxes, assessments, deposits and contributions owed by such Credit Party. Other than as disclosed to Agent in accordance with Section6.2, Borrower is unaware of any claims or adjustments proposed for any prior tax years of any Credit Party which could result in additional Taxes becoming due and payable by such Credit Party. No Credit Party nor any trade or business (whether or not incorporated) that is under common control with any Credit Party within the meaning of Section414(b) or (c)of the IRC (and Sections 414(m) and (o)of the IRC for purposes of the provisions relating to Section412 of the IRC) or Section4001 of ERISA (an ERISA Affiliate) (i)has failed to satisfy the minimum funding standards (as defined in Section412 of or Section302 of ERISA), whether or not waived, with respect to any Pension Plan, (ii)has incurred liability with respect to the withdrawal or partial withdrawal of any Credit Party or ERISA Affiliate from any Pension Plan or incurred a cessation of operations that is treated as a withdrawal, (iii)has incurred any liability under Title IV of ERISA (other than for PBGC premiums due but not delinquent under Section4007 of ERISA), (iv)has had any reportable event as defined in Section4043(c) of ERISA (or the regulations issued thereunder) (other than an event for which the 30-day notice requirement is waived) occur with respect to any Pension Plan or (v)failed to maintain (1)each plan (as defined by Section3(3) of ERISA) in all material respects with the applicable provisions of ERISA, the IRC and other federal or state laws, and (2)the tax qualified status of each plan (as defined above) intended to be so qualified."
"5.9 Accuracy of Schedules and Perfection Certificate. All information set forth in the Disclosure Schedule, Intangible Assets Schedule, the Required Permits Schedule and the Products Schedule is true, accurate and complete as of the Closing Date, and true, accurate and complete in all material respects on the date of delivery of the last Compliance Certificate and any other subsequent date on which Borrower is requested to update such certificate. All information set forth in the Perfection Certificate is true, accurate and complete as of the Closing Date and each other subsequent date on which Borrower delivers an updated Perfection Certificate pursuant to Agents reasonable request, and true, accurate and complete in all material respects on the date of each Credit Extension (other than the initial Credit Extension on the Closing Date)."
"(c) Borrower shall cause each Credit Party to keep proper books of record and account in accordance with GAAP in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. Upon commercially reasonable prior written notice and during business hours (which such limitations shall not apply if a Default or Event of Default has occurred), Borrower shall allow, and cause each Credit Party to allow, Agent and Lenders (1)to visit and inspect any properties of a Credit Party, (2)to examine and make abstracts or copies from any Credit Partys books, to conduct a collateral audit and analysis of its operations and the Collateral (3)if an Event of Default has occurred and is continuing, to verify the amount and age of the accounts, the identity and credit of the respective account debtors, (4)to review the billing practices of the Credit Party and (5)to discuss its respective affairs, finances and accounts with their respective officers, employees and independent public accountants as often as may reasonably be desired and which at all times a representative from the Borrowers shall have the right to be present. Borrower shall reimburse Agent and each Lender for all reasonable costs and out-of-pocket expenses associated with such visits and inspections; provided, however, that Borrower shall be required to reimburse Agent and each Lender for such costs and expenses for no more than two (2)such visits and inspections per twelve (12)month period unless a Default or Event of Default has occurred during such period."
"(c) Borrowers further agrees to comply, and cause their respective Subsidiaries to comply with the following requirements with respect to the Restricted Foreign Subsidiaries (i)the total amount of cash and cash equivalents held by the Restricted Foreign Subsidiaries in Accounts other than a Collateral Account that is subject to an Control Agreement, in aggregate for all such Accounts, shall not, at any time, exceed $100,000 and (ii)such Restricted Foreign Subsidiaries shall not own or hold any other assets except for assets with a de minis value individually and in the aggregate."
"(a) If any release or disposal of Hazardous Materials shall occur or shall have occurred on any real property or any other assets of any Borrower or any other Credit Party, such Borrower will cause, or direct the applicable Credit Party to cause, the prompt containment and removal of such Hazardous Materials and the remediation of such real property or other assets as is necessary to comply with all Laws and to preserve the value of such real property or other assets. Without limiting the generality of the foregoing, each Borrower shall, and shall cause each other Credit Party to, comply with each Law requiring the performance at any real property by any Borrower or any other Credit Party of activities in response to the release or threatened release of a Hazardous Material."
"(b) Borrower will provide Agent within thirty (30)days after written demand therefor with a bond, letter of credit or similar financial assurance evidencing to the reasonable satisfaction of Agent that sufficient funds are available to pay the cost of removing, treating and disposing of any Hazardous Materials or Hazardous Materials Contamination and discharging any assessment which may be established on any property as a result thereof, such demand to be made, if at all, upon Agents determination that the failure to remove, treat or dispose of any Hazardous Materials or Hazardous Materials Contamination, or the failure to discharge any such assessment could reasonably be expected to have a Material Adverse Change."
"6.14 Disclosure Schedule Updates. Borrower shall, in the event of any information in the Disclosure Schedule becoming outdated, inaccurate, incomplete or misleading, deliver to Agent, together with the next Compliance Certificate required to be delivered under this Agreement after such event, a proposed update to the Disclosure Schedule correcting all outdated, inaccurate, incomplete or misleading information; provided, however, (i)with respect to any proposed updates to the Disclosure Schedule involving Permitted Liens, Permitted Indebtedness or Permitted Investments, Agent will replace the Disclosure Schedule attached hereto with such proposed update only if such updated information is consistent with the definitions of and limitations herein pertaining to Permitted Liens, Permitted Indebtedness or Permitted Investments and (ii)with respect to any proposed updates to the Disclosure Schedule involving other matters, Agent will replace the applicable portion of the Disclosure Schedule attached hereto with such proposed update upon Agents approval thereof."
"(c) Borrower shall take such steps as Agent reasonably requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x)all licenses or agreements to be deemed Collateral and for Agent to have a security interest in it that might otherwise be restricted or prohibited by Law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y)Agent to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Agents rights and remedies under this Agreement and the other Financing Documents."
"7.3 Mergers or Acquisitions. Merge or consolidate with any other Person, or acquire all or substantially all of the capital stock or property of or make any Investment in another Person; provided, however, that a Subsidiary of Borrower may merge or consolidate into another Subsidiary that is a Borrower, so long as (a)Borrower has provided Agent with prior written notice of such transaction, (b)a Person already comprising the Borrower shall be the surviving legal entity, (c)Borrowers tangible net worth is not thereby reduced, (d)no Event of Default has occurred and is continuing prior thereto or arises as a result therefrom, and (e)Borrower shall be in compliance with the covenants set forth in this Agreement both before and after giving effect to such transaction."
"(e) (i) any Credit Party defaults under or breaches any Material Agreement (after any applicable grace period contained therein), or a Material Agreement shall be terminated by a third party or parties party thereto prior to the expiration thereof, or there is a loss of a material right of a Credit Party under any Material Agreement to which it is a party, in each case which could reasonably be expected to result in a Material Adverse Change, (ii)(A)any Credit Party fails to make (after any applicable grace period) any payment when due (whether due because of scheduled maturity, required prepayment provisions, acceleration, demand or otherwise) on any"
"(h) (i)any court order enjoins, restrains, or prevents Borrower from conducting any material part of its business for a period of longer than five (5)Business Day in the aggregate over the term of this Agreement, (ii)the institution by any Governmental Authority of criminal proceedings against any Credit Party, or (iii)one or more judgments or orders for the payment of money (not paid or fully covered by insurance and as to which the relevant insurance company has acknowledged coverage in writing) aggregating in excess of $250,000 shall be rendered against any or all Credit Parties and either (A)enforcement proceedings shall have been commenced by any creditor upon any such judgments or orders, or (B)there shall be any period of twenty (20)consecutive Business Days during which a stay of enforcement of any such judgments or orders, by reason of a pending appeal, bond or otherwise, shall not be in effect;"
"(j) (i) A Change in Control occurs or (ii)any Credit Party or direct or indirect equity owner in a Credit Party shall enter into an agreement which contemplates a Change in Control (unless such agreement is either (A)non- binding on such Credit Party or (B)provides for, as a condition precedent to the consummation of such agreement, either (x)the payment in full in cash of all Obligations or (y)the consent of Agent and Lenders);"
"(m) If any Borrower is or becomes an entity whose equity is registered with the SEC, and/or is publicly traded on and/or registered with a public securities exchange, such Borrowers equity fails to remain registered with the SEC in good standing, and/or such equity fails to remain publicly traded on and registered with a public securities exchange; or"
"(a) Upon the occurrence and during the continuance of an Event of Default, Agent may, and at the written direction of any Lender shall, without notice or demand, do any or all of the following: (i)deliver notice of the Event of Default to Borrower, (ii)by notice to any Borrower declare all Obligations immediately due and payable (but if an Event of Default described in Section10.1(f) occurs all Obligations shall be immediately due and payable without any action by Agent or the Lenders), or (iii)by notice to any Borrower suspend or terminate the obligations, if any, of the Lenders to advance money or extend credit for Borrowers benefit under this Agreement or under any other agreement between any Credit Party and Agent and/or the Lenders (but if an Event of Default described in Section10.1(f) occurs all obligations, if any, of the Lenders to advance money or extend credit for Borrowers benefit under this Agreement or under any other agreement between Borrower and Agent and/or the Lenders shall be immediately terminated without any action by Agent or the Lenders)."
"12.4 CONFESSION OF JUDGMENT. UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, EACH BORROWER AUTHORIZES ANY ATTORNEY ADMITTED TO PRACTICE BEFORE ANY COURT OF RECORD IN THE UNITED STATES OR THE CLERK OF SUCH COURT TO APPEAR ON BEHALF OF SUCH BORROWER IN ANY COURT IN ONE OR MORE PROCEEDINGS, OR BEFORE ANY CLERK THEREOF OR PROTHONOTARY OR OTHER COURT OFFICIAL, AND TO CONFESS JUDGMENT AGAINST BORROWER IN FAVOR OF AGENT (FOR THE BENEFIT OF ALL LENDERS) IN THE FULL AMOUNT DUE ON THIS AGREEMENT (INCLUDING PRINCIPAL, ACCRUED INTEREST AND ANY AND"
"(c) Agent, acting solely for this purpose as an agent of Borrower, shall maintain at its offices located in Bethesda, Maryland a copy of each assignment agreement delivered to it and a Register for the recordation of the names and addresses of each Lender, and the commitments of, and principal amount (and stated interest) of the Credit Extensions owing to, such Lender pursuant to the terms hereof (the Register). The entries in such Register shall be conclusive, absent manifest error, and Borrower, Agent and Lenders may treat each Person"
"(a) No amendment, modification, termination or waiver of any provision of this Agreement or any other Financing Document, no approval or consent thereunder, or any consent to any departure by Borrower therefrom (in each case, other than amendments, waivers, approvals or consents deemed ministerial by Agent), shall in any event be effective unless the same shall be in writing and signed by Borrower, Agent and Required Lenders. Except as set forth in clause (b)below, all such amendments, modifications, terminations or waivers requiring the consent of the Lenders shall require the written consent of Required Lenders."
"13.15 Borrower Liability. If there is more than one entity comprising Borrower, then (a)any Borrower may, acting singly, request Credit Extensions hereunder, (b)each Borrower hereby appoints the other as agent for the other for all purposes hereunder, including with respect to requesting Credit Extensions hereunder, (c)each Borrower shall be jointly and severally obligated to pay and perform all obligations under the Financing Documents, including, but not limited to, the obligation to repay all Credit Extensions made hereunder and all other Obligations, regardless of which Borrower actually receives said Credit Extensions, as if each Borrower directly received all Credit Extensions, and (d)each Borrower waives (1)any suretyship defenses available to it under the Code or any other applicable law, and (2)any right to require the Lenders or Agent to: (A)proceed against any Borrower or any other person; (B)proceed against or exhaust any security; or (C)pursue any other remedy.The Lenders or Agent may exercise or not exercise any right or remedy they have against any Credit Party or any security (including the right to foreclose by judicial or non-judicial sale) without affecting any other Credit Partys liability or any Lien against any other Credit Partys assets.Notwithstanding any other provision of this Agreement or other related document, until the indefeasible payment in cash in full of the Obligations (other than inchoate indemnity obligations for which no claim has yet been made) and termination of the Applicable Commitments, each Borrower irrevocably waives all rights that it may have at law or in equity (including, without limitation, any law subrogating Borrower to the rights of the Lenders and Agent under this Agreement) to seek contribution, indemnification or any other form of reimbursement from any other Credit Party, or any other Person now or hereafter primarily or secondarily liable for any of the Obligations, for any payment made by any Credit Party with respect to the Obligations in connection with this Agreement or otherwise and all rights that it might have to benefit from, or to participate in, any security for the Obligations as a result of any payment made by a Credit Party with respect to the Obligations in connection with this Agreement or otherwise.Any agreement providing for indemnification, reimbursement or any other arrangement prohibited under this Section shall be null and void.If any payment is made to a Credit Party in contravention of this Section, such Credit Party shall hold such payment in trust for the Lenders and Agent and such payment shall be promptly delivered to Agent for application to the Obligations, whether matured or unmatured."
"(a) Agent may at any time assign its rights, powers, privileges and duties hereunder to (i)another Lender or an Affiliate of Agent or any Lender or any Approved Fund, or (ii)any Person to whom Agent, in its capacity as a Lender, has assigned (or will assign, in conjunction with such assignment of agency rights hereunder) fifty percent (50%)or more of the Credit Extensions or Applicable Commitments then held by Agent (in its capacity as a Lender), in each case without the consent of the Lenders or Borrower. Following any such assignment, Agent shall give notice to the Lenders and Borrower. An assignment by Agent pursuant to this subsection (a)shall not be deemed a resignation by Agent for purposes of subsection (b)below."
"14.4 Liability of Agent. Except as otherwise provided herein, no Agent- Related Person (as defined below) shall (a)be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Financing Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct in connection with its duties expressly set forth herein), or (b)be responsible in any manner to any Lender or participant for any recital, statement, representation or warranty made by any Credit Party or any officer thereof, contained herein or in any other Financing Document, or in any certificate, report, statement or other document referred to or provided for in, or received by Agent under or in connection with, this Agreement or any other Financing Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Financing Document, or for any failure of any Credit Party or any other party to any Financing Document to perform its obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any Lender or participant to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Financing Document, or to inspect the Collateral, other properties or books or records of any Credit Party or any Affiliate thereof. The term Agent-Related Person means the Agent, together with its Affiliates, and the officers, directors, employees, agents, advisors, auditors and attorneys-in-fact of such Persons; provided, however, that no Agent-Related Person shall be an Affiliate of Borrower."
"14.10 Agent May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Credit Party, Agent (irrespective of whether the principal of any Credit Extension, shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Agent shall have made any demand on such Credit Party) shall be entitled and empowered, by intervention in such proceeding or otherwise:"
"(a) Advances; Payments. If Agent receives any payment for the account of Lenders on or prior to 11:00 a.m. (New York time) on any Business Day, Agent shall pay to each applicable Lender such Lenders Pro Rata Share of such payment on such Business Day. If Agent receives any payment for the account ofLenders after 11:00 a.m. (New York time) on any Business Day, Agent shall pay to each applicable Lender such Lenders Pro Rata Share of such payment on the next Business Day. To the extent that any Lender has failed to fund any Credit Extension (a Non-Funding Lender), Agent shall be entitled to set-off the funding short-fall against that Non-Funding Lenders ProRata Share of all payments received from Borrower."
"(ii) If Agent determines at any time that any amount received by Agent under this Agreement must be returned to a Credit Party or paid to any other person pursuant to any insolvency law or otherwise, then, notwithstanding any other term or condition of this Agreement or any other Financing Document, Agent will not be required to distribute any portion thereof to any Lender. In addition, each Lender will repay to Agent on demand any portion of such amount that Agent has distributed to such Lender, together with interest at such rate, if any, as Agent is required to pay to a Credit Party or such other person, without set-off, counterclaim or deduction of any kind."
"(a) Neither Agent nor any Lender shall be responsible for the failure of any Non-Funding Lender to make a Credit Extension or make any other advance required hereunder. The failure of any Non-Funding Lender to make any Credit Extension or any payment required by it hereunder shall not relieve any other Lender (each such other Lender, an Other Lender) of its obligations to make the Credit Extension or payment required by it, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make a Credit Extension or make any other payment required hereunder. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Financing Document or constitute a Lender (or be included in the calculation of Required Lender hereunder) for any voting or consent rights under or with respect to any Financing Document. At Borrowers request, Agent or a person reasonably acceptable to Agent shall have the right with Agents consent and in Agents sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agents request, sell and assign to Agent or such person, all of the Applicable Commitments and all of the outstanding Credit Extensions of that Non-Funding Lender for an amount equal to the principal balance of the Credit Extensions held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed assignment agreement reasonably acceptable to Agent."
"Applicable Interest Rate Determination Date means the second (2nd)Business Day prior to the first (1st)day of the related Applicable Interest Period; provided, however, that at any time that the Applicable Prime Rate is the Applicable Index Rate, Applicable Interest Rate Determination Date means the date of any change in the Base Rate Index; and provided, further, that at any time the Libor Rate Index is adjusted as set forth in the definition thereof, the Applicable Interest Rate Determination Date shall mean the date of such adjustment or the second (2nd)Business Day prior to the first (1st)day of the related Applicable Interest Period, as elected by Agent."
"Eligible Assignee means (a)a Lender, (b)an Affiliate of a Lender, (c)an Approved Fund, and (d)any other Person (other than a natural person) approved by Agent; provided, however, that notwithstanding the foregoing, Eligible Assignee shall not include (i)any Credit Party or any Subsidiary of a Credit Party or (ii)unless an Event of Default has occurred and is continuing, (A)any hedge fund or private equity fund that is primarily engaged in the business of purchasing distressed debt or (B)any direct competitor of Borrower, in each case, as determined by Agent in its reasonable discretion. Notwithstanding the foregoing, in connection with assignments by a Lender due to a forced divestiture at the request of any regulatory agency, the restrictions set forth herein shall not apply and Eligible Assignee shall mean any Person or party becoming an assignee incident to such forced divestiture."
"Excluded Property means (i)that certain Common Stock Award Agreement, dated as of October16, 2015 by and between Variant Pharmaceuticals, Inc. and Sancilio and Company, Inc. (the Common Stock Award Agreement) and the Shares as defined in the Common Stock Award Agreement, if and to the extent that, and only for so long as the grant of a security interest therein shall (1)constitute or result in a breach, termination or default under the Common Stock Award Agreement or render it unenforceable, (2)be prohibited by any applicable law or (3)require the consent of any third party that cannot be obtained after the use of commercially reasonable efforts to obtain such consent (in each case of clauses (1), (2)and (3), other than to the extent that any such breach, termination, default, prohibition or requirement for consent would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant jurisdiction or any other applicable law); provided that such security interest shall attach immediately to each portion of the Common Stock Award Agreement and the Shares as defined in the Common Stock Award Agreement that does not result in any of the consequences specified above, and (ii)(1)with respect to any first-tier Subsidiary that is not a U.S. Person (a Foreign Subsidiary), more than 65% of its securities that are entitled to vote (within the meaning of Treasury Reg. Section1.956-2(c)(2)) or (ii)with respect to any Foreign Subsidiary that is not first-tier Foreign Subsidiary, any stock or equity of such Foreign Subsidiary, in each case, if and to the extent the inclusion of any greater amount of securities of such Foreign Subsidiary in the Collateral would result in material adverse tax consequences to Borrower or any of its Subsidiaries under Section956 of the IRC; provided, however, Excluded Property shall not include any proceeds, products, substitutions, receivables or replacements of Excluded Property (unless such proceeds, products, substitutions, receivables or replacements would otherwise constitute Excluded Property)."
"Excluded Taxes means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a 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 Lender, 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 Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Credit Extension or Applicable Commitment pursuant to a law in effect on the date on which (i)such Lender acquires such interest in the Credit Extension or Applicable Commitment or (ii)such Lender changes its lending office, except in each case to the extent that, pursuant to Section2.6(h)(i) or 2.6(h)(iii), amounts with respect to such Taxes were payable either to such Lenders assignor immediately before such Lender 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 Section2.6(h)(vi) and (vii)and (d)any U.S. federal withholding Taxes imposed under FATCA."
"Financing Documents means, collectively, this Agreement, the Perfection Certificate, the Mortgage and the other Security Documents, each Subordination Agreement and any subordination or intercreditor agreement pursuant to which any Indebtedness and/or any Liens securing such Indebtedness is subordinated to all or any portion of the Obligations, the Fee Letter(s), each note and guarantee executed by one or more Credit Parties in connection with the indebtedness governed by this Agreement, and each other present or future agreement executed by one or more Credit Parties and, or for the benefit of, the Lenders and/or Agent in connection with this Agreement, all as amended, restated, or otherwise modified from time to time."
"GAAP means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other Person as may be approved by a significant segment of the accounting profession in the United States, which are applicable to the circumstances as of the date of determination."
"Investment means, with respect to any Person, directly or indirectly, (a)to purchase or acquire any stock or stock equivalents, or any obligations or other securities of, or any interest in, any Person, including the establishment or creation of a Subsidiary, (b)to make or commit to make any acquisition (including through licensing) of (i)of all or substantially all of the assets of another Person, or (ii)any business, Product, business line or product line, division or other unit operation of any Person or (c)make or purchase any advance, loan, extension of credit or capital contribution to, or any other investment in, any Person."
"Material Intangible Assets means (i)all of Borrowers Intellectual Property and (ii)each license or sublicense agreements or other agreements with respect to rights in Intellectual Property, that, in the case of each of clauses (i)and (ii), is material to the condition (financial or other), business or operations of Borrower, as determined by Agent."
"Obligations means all of Borrowers obligations to pay when due any debts, principal, interest, Protective Advances, fees, indemnities and other amounts Borrower owes the Agent or Lenders now or later, under this Agreement or the other Financing Documents, including, without limitation, interest accruing after Insolvency Proceedings begin (whether or not allowed) and debts, liabilities, or obligations of Borrower assigned to the Lenders and/or Agent, and the payment and performance of each other Credit Partys covenants and obligations under the Financing Documents. Obligations does not include obligations under any warrants issued to Agent or a Lender."
"Other Tax Certification means such certification or evidence, in each case in form and substance satisfactory to Agent, that any Lender or prospective Lender is exempt from, or eligible for a reduction in, U.S. federal withholding tax or backup withholding tax, including evidence supporting the basis for such exemption or reduction."
"Permitted Indebtedness means: (a)Borrowers Indebtedness to the Lenders and Agent under this Agreement and the other Financing Documents; (b)Indebtedness existing on the Closing Date and described on the Disclosure Schedule; (c)Indebtedness secured by Permitted Liens; (d)Subordinated Debt; (e)unsecured Indebtedness to trade creditors incurred in the Ordinary Course of Business; (f)Permitted Contingent Obligations; (g)extensions, refinancings, modifications, amendments and restatements of any items of Permitted Indebtedness"
"Secretarys Certificate means, with respect to any Person, a certificate, in form and substance reasonably satisfactory to Agent, executed by such Persons secretary (or other appropriate officer acceptable to Agent in its sole but reasonable discretion) on behalf of such Person certifying (a)that attached to such certificate is a true, correct, and complete copy of Borrowing Resolutions then in full force and effect authorizing and ratifying the execution, delivery, and performance by such Person of the Financing Documents to which it is a party, (b)the name(s) of the Person(s) authorized to execute the Financing Documents on behalf of such Person, together with a sample of the true signature(s) of such Person(s), (c)that attached to such certificate are true, correct, and complete copies of the Operating Documents of Borrower and good standing certificates of Borrower certified by the Secretary of State of the state(s) of organization of Borrower as of a date no earlier than thirty (30)days prior to the Closing Date, (d)that attached to such certificate is true, correct, and complete copy of the Borrowers Registration"
"Subject to the terms and conditions hereof and of the 2016 Increase Term Joinder, each 2016 Incremental Term A Facility Lender severally agrees to make, on the 2016 Increase Term Joinder Effective Date, a single Incremental Term A Loan to the Borrower in Dollars in an amount equal to such 2016 Incremental Term A Facility Lenders 2016 Incremental Term A Commitment as set forth on Schedule 1.1 (after giving effect to the 2016 Increase Term Joinder)."
"Notwithstanding anything in this Agreement (including Sections 11.2 and 11.6 hereof) or the other Loan Documents to the contrary, on or after the Amendment No. 1 Effective Date, the Borrower may assign all or a portion of the outstanding Term A Loans and its Obligations related thereto (any such assigned Term A Loans and related Obligations, the Foreign Obligations) to a wholly-owned direct or indirect Subsidiary of the Borrower organized under the laws of the Cayman Islands (the Cayman Borrower), subject to receipt of customary legal opinions, organizational documents, resolutions and other appropriate corporate documentation as Administrative Agent may reasonably request, and subject to satisfaction of applicable know your customer requirements as reasonably requested by the applicable Term A Lenders. This Agreement and the other Loan Documents may be amended (or amended and restated), modified or supplemented with the written consent of the Administrative Agent and the Borrower to permit or effect such assignment and to make certain other related changes as the Administrative Agent may deem necessary or advisable in connection therewith. The Administrative Agent and Collateral Agent are hereby authorized to enter into any additional collateral documents related to any grant of security interest by the Cayman Borrower to secure the Foreign Obligations subject to sharing arrangements reasonably satisfactory to the Administrative Agent and Collateral Agent."
"(b) After giving effect to this Joinder and the transactions contemplated hereby (i) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of the Effective Date as if made on and as of such date (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date), (ii) no Default or Event of Default shall have occurred and be continuing or would result from the borrowings to be made on the Effective Date;"
"SECTION 7.Execution in Counterparts. This Joinder may be executed by one or more of the parties to this Joinder on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Joinder by facsimile transmission or electronic mail (in .pdf or similar format) shall be effective as delivery of a manually executed counterpart hereof."
"AMENDMENT NO. 2, dated as of April 14, 2016 (this Amendment), to the Credit Agreement, dated as of April 17, 2013 (as amended prior to the date hereof, the Credit Agreement), among EVERTEC GROUP, LLC (the Borrower), EVERTEC INTERMEDIATE HOLDINGS, LLC (Holdings), the lenders from time to time party thereto (the Lenders) and JPMORGAN CHASE BANK, N.A., as administrative agent and collateral agent (in such capacity, the Administrative Agent),"
"Notwithstanding anything to the contrary in the definition of Pro Forma Compliance and Test Period, the calculations of Consolidated Total Assets, EBITDA, Financial Performance Covenant, Senior Secured Leverage Ratio and Total Secured Leverage Ratio as of and for any period ended (i) December 31, 2015 shall be made by reference to the unaudited financial information for the fiscal year ended December 31, 2015 set forth in the Current Report on Form 8-K furnished to the SEC on February 17, 2016, until the delivery of the 2015 Audited Financial Statements and such calculations shall be made as of December 31, 2015 until such calculations can be made through the use of financial information for the fiscal quarter ended March 31, 2016 pursuant to clause (ii) below, (ii) March 31, 2016 shall be made (for any determination made on or after May 16, 2016) by reference to the unaudited financial information for the fiscal quarter ended March 31, 2016 to be set forth in the 1Q2016 Earnings Release, until the delivery of unaudited financial statements for such fiscal quarter and (iii) June 30, 2016 shall be made (for any determination made on or after August 15, 2016) by reference to the unaudited financial information for the fiscal quarter ended June 30, 2016 to be set forth in the 2Q2016 Earnings Release, until the delivery of unaudited financial statements for such fiscal quarter, in each of clauses (i), (ii) and (iii), subject to reasonable adjustments to account for differences between the financial results and condition of Evertec and the Borrower."
"delivery of the 2015 Audited Financial Statements under Section 5.04(a) and (ii) the deadline for delivery of the financial statements and certification required by this Section 5.04(b) for the fiscal quarter ended June 30, 2016 shall be the earlier of (x) September 15, 2016, so long as Evertec publicly issues an earnings release (the 2Q2016 Earnings Release) with respect to such fiscal quarter (in a form consistent in all material respects with quarterly earnings releases historically issued by Evertec (except for any qualifications in connection with the matters set forth in the Restatement 8-K)) not later than August 15, 2016 and (y) the later of (A) August 14, 2016 and (B) the date of delivery of the 2015 Audited Financial Statements under Section 5.04(a);."
"(c) (x) concurrently with any delivery of financial statements under paragraphs (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) commencing with the first full fiscal quarter ending after the Closing Date, setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the Financial Performance Covenant, and (iii) setting forth the calculation of Excess Cash Flow for Applicable Period then ended and the Applicable Percentage of such Excess Cash Flow and any changes in the Cumulative Credit since the last delivery of a certificate under this paragraph (c) or since the Closing Date in the case of the first such certificate; provided that (A) such certificate with respect to the fiscal year ended December 31, 2015 shall be provided not later than April 14, 2016, (B) such certificate with respect to the fiscal quarter ended March 31, 2016 shall be provided not later than the earlier of (I) May 16, 2016 and (II) the deadline for delivery of the financial statements for the fiscal quarter ended March 31, 2016 pursuant to the proviso of Section 5.04(b), (C) such certificate with respect to the fiscal quarter ended June 30, 2016 shall be provided not later than the earlier of (I) August 15, 2016 and (II) the deadline for delivery of the financial statements for the fiscal quarter ended June 30, 2016 pursuant to the proviso of Section 5.04(b), and (D) any such certificate delivered prior to the delivery of the 2015 Audited Financial Statements may be subject to reasonable qualifications in connection with the matters set forth in the Restatement 8-K, in which case, a replacement certificate not including such qualification shall be delivered within two Business Days of the delivery of the 2015 Audited Financial Statements, (y) concurrently with any delivery of financial statements under paragraph (a) above, if the accounting firm is not restricted from providing such a certificate by its policies, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) and (z) concurrently with any delivery of financial statements under paragraphs (a) or (b) above, a copy of managements discussion and analysis with respect to such financial statements, all of which shall be in form and detail reasonably satisfactory to the Administrative Agent (it being understood that the delivery by Evertec of reports on Form 10-Q or Form 10-K of Evertec and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(c)(z) to the extent such reports include such managements discussion and analysis);."
"as of the date hereof. Applicable Lender shall mean each Lender that has executed and delivered to the Administrative Agent its consent to this Amendment prior to 5:00 p.m., New York City time, on April 13, 2016 or such later date and time specified by the Borrower and notified in writing to the Lenders by the Administrative Agent."
"(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower dated as of the Amendment No. 2 Effective Date stating that, after giving effect to this Amendment, each of the representations and warranties set forth in Article IV of this Amendment are true and correct on such date."
"(e) The Administrative Agent shall have received a certificate of a Responsible Officer of each Loan Party dated the Amendment No. 2 Effective Date (in each case, the Certificate) and certifying (I) to the effect that (A) attached thereto is a true and complete copy of the certificate or articles of incorporation, certificate of limited partnership, articles of incorporation, certificate of formation or other equivalent organizational documents of such Loan Party certified as of a recent date, or in the alternative (other than in the case of the Borrower), the Certificate will certify that such organizational documents have not been amended since April 17, 2013, and that such organizational documents are in full force and effect, (B) attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of each Loan Party as in effect on the Amendment No. 2 Effective Date, or in the alternative (other than in the case of the Borrower), the Certificate will certify that such governing documents have not been amended since April 17, 2013, and that such governing documents are in full force and effect and (C) attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party (or its managing general partner, managing member or equivalent) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party, and that such resolutions have not been modified, rescinded or amended, and that such resolutions are in full force and effect, and (II) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and signed by another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant to this clause (e); provided that any Specified Subsidiary may deliver its Certificate in accordance with Section 5.3."
"138. | Falcon Cable Systems Company II, L.P. ---|--- 139. | Falcon Cablevision, a California Limited Partnership ---|--- 140. | Falcon Community Cable, L.P. ---|--- 141. | Falcon Community Ventures I Limited Partnership ---|--- 142. | Falcon First Cable of the Southeast, LLC ---|--- 143. | Falcon First, LLC ---|--- 144. | Falcon Telecable, a California Limited Partnership ---|--- 145. | Falcon Video Communications, L.P. ---|--- 146. | Helicon Partners I, L.P. ---|--- 147. | Hometown T.V., LLC ---|--- 148. | HPI Acquisition Co. LLC ---|--- 149. | ICI Holdings, LLC ---|--- 150. | Insight Blocker LLC ---|--- 151. | Insight Capital LLC ---|--- 152. | Insight Communications Company LLC ---|--- 153. | Insight Communications Company, L.P. ---|--- 154. | Insight Communications Midwest, LLC ---|--- 155. | Insight Communications of Central Ohio, LLC ---|--- 156. | Insight Communications of Kentucky, L.P. ---|--- 157. | Insight Interactive, LLC ---|--- 158. | Insight Kentucky Capital, LLC ---|--- 159. | Insight Kentucky Partners I, L.P. ---|--- 160. | Insight Kentucky Partners II, L.P. ---|--- 161. | Insight Midwest Holdings, LLC ---|--- 162. | Insight Midwest, L.P. ---|--- 163. | Insight Phone of Indiana, LLC ---|--- 164. | Insight Phone of Kentucky, LLC ---|--- 165. | Insight Phone of Ohio, LLC ---|--- 166. | Interactive Cable Services, LLC ---|--- 167. | Interlink Communications Partners, LLC ---|--- 168. | Intrepid Acquisition LLC ---|--- 169. | Long Beach, LLC ---|--- 170. | Marcus Cable Associates, L.L.C. ---|--- 171. | Marcus Cable of Alabama, L.L.C. ---|--- 172. | Marcus Cable, LLC ---|--- 173. | Midwest Cable Communications, LLC ---|--- 174. | NaviSite LLC ---|--- 175. | New Wisconsin Procurement LLC ---|--- 176. | Oceanic Time Warner Cable LLC ---|--- 177. | Parity Assets LLC ---|--- 178. | Peachtree Cable TV, L.P. ---|--- 179. | Peachtree Cable TV, LLC ---|--- 180. | Phone Transfers (AL), LLC ---|--- 181. | Phone Transfers (CA), LLC ---|--- 182. | Phone Transfers (GA), LLC ---|--- 183. | Phone Transfers (NC), LLC ---|--- 184. | Phone Transfers (TN), LLC ---|--- 185. | Phone Transfers (VA), LLC ---|--- * * *"
"236. | Time Warner Cable Texas LLC ---|--- 237. | TWC Administration LLC ---|--- 238. | TWC Communications, LLC ---|--- 239. | TWC Digital Phone LLC ---|--- 240. | TWC Media Blocker LLC ---|--- 241. | TWC NewCo LLC ---|--- 242. | TWC News and Local Programming Holdco LLC ---|--- 243. | TWC News and Local Programming LLC ---|--- 244. | TWC Regional Sports Network I LLC ---|--- 245. | TWC Security LLC ---|--- 246. | TWC SEE Holdco LLC ---|--- 247. | TWC Wireless LLC ---|--- 248. | TWC/Charter Dallas Cable Advertising, LLC ---|--- 249. | TWCIS Holdco LLC ---|--- 250. | Vista Broadband Communications, LLC ---|--- 251. | VOIP Transfers (AL), LLC ---|--- 252. | VOIP Transfers (CA) LLC ---|--- 253. | VOIP Transfers (GA), LLC ---|--- 254. | VOIP Transfers (NC), LLC ---|--- 255. | VOIP Transfers (TN), LLC ---|--- 256. | VOIP Transfers (VA), LLC ---|--- 257. | Wisconsin Procurement Holdco LLC ---|--- * * *"
"|  |  | 1.00 | % |  |  | N/A |  ; provided, that (i) the Applicable Margin with respect to Revolving Loans made pursuant to any Extended Revolving Commitment following the Restatement Effective Date shall be as set forth in the applicable Incremental Activation Notice and (ii) the Applicable Margin for Swingline Loans, at any time, shall be equal to the highest Applicable Margin that would be applicable to any Revolving Loan that is an ABR Loan at such time;"
"Attributable Debt: in respect of a sale and leaseback transaction entered into by the Borrower or any of its Subsidiaries, at the time of determination, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction including any period for which such lease has been extended or may, at the sole option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP."
"Available Revolving Commitment: as to any Revolving Lender at any time, an amount equal to the excess, if any, of (a) such Lenders Revolving Commitment then in effect over (b) such Lenders Revolving Extensions of Credit then outstanding; provided, that in calculating any Lenders Revolving Extensions of Credit for the purpose of determining such Lenders Available Revolving Commitment pursuant to Section 2.6(a), the aggregate principal amount of Swingline Loans then outstanding shall be deemed to be zero."
"CATV System: any cable distribution system owned or acquired by the Borrower or any of its Subsidiaries which receives audio, video, digital, other broadcast signals or information or telecommunications by cable, optical, antennae, microwave or satellite transmission and which amplifies and transmits such signals to customers of the Borrower or any of its Subsidiaries."
"Change in Law means the occurrence, after the Restatement Effective Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; 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 to be a Change in Law, regardless of the date enacted, adopted or issued."
"Eurodollar Base Rate: for any Interest Period with respect to a Eurodollar 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; provided that to the extent a comparable or successor rate is approved by the Administrative Agent in connection herewith, the approved rate shall be applied in a manner consistent with market practice; provided, further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent."
"First Lien Intercreditor Agreement: (a) the First Lien Intercreditor Agreement, dated as of the Restatement Effective Date, by and among the Borrower, the Guarantors, the Administrative Agent, The Bank of New York Mellon Trust Company, N.A. and each other other party from time to time thereto or (b) any other agreement by and among the Administrative Agent and one or more collateral agents for the holders of First Lien Notes and/or Pre- Existing Debt (an Other First Lien Agent) appropriately completed and acknowledged by the Borrower and the Guarantors providing, among other customary items (as determined by the Administrative Agent in consultation with the Borrower), that (i) for so long as any Commitments, Loans, Letters of Credit, or other Obligations are outstanding under this Agreement (other than contingent obligations for which no claim has been asserted) the Administrative Agent, on behalf of the Lenders, shall have the sole right to enforce any Lien against any Collateral in which it has a perfected security interest (except that, to the extent the principal amount of First Lien Notes and/or Pre-Existing Debt exceeds the principal amount of Loans and L/C Obligations under this Agreement, such agreement may provide that the applicable Other First Lien Agent shall instead be subject to a 90 day standstill requirement with respect to such enforcement (which period shall be extended if the Administrative Agent commences enforcement against the Collateral during such period or is prohibited by any Requirement of Law from commencing such proceedings) in the event it has given notice of an event of default under the indenture or other agreement governing First Lien Notes or Pre-Existing Debt for which it is agent and (ii) distributions on account of any enforcement against the Collateral by the Administrative Agent or the Other First Lien Agent (including any distribution on account of the Collateral in any such proceeding pursuant to any Debtor Relief Laws) with respect to which each of the Administrative Agent and such Other First Lien Agent have a perfected security interest shall be on a pro rata basis (subject to customary provisions dealing with intervening Liens that are prior to the Administrative Agents or such Other First Lien Agents security interest and the unenforceability of any obligations purportedly secured by such Liens) based on the amount of the Obligations and the obligations owing under the First Lien Notes and Pre-Existing Debt, respectively."
"GAAP: generally accepted accounting principles in the United States as in effect from time to time, except that for purposes of Section 7.1, GAAP shall be determined on the basis of such principles in effect on the Restatement Effective Date as applied in the preparation of the most recent audited financial statements delivered pursuant to Section 6.1 prior to the Restatement Effective Date. In the event that any Accounting Change (as defined below) shall occur and such change results in a change in the method of calculation of financial covenants, standards or terms in this Agreement, then the Borrower and the Administrative Agent agree to enter into negotiations in order to amend such provisions of this Agreement so as to equitably reflect such Accounting Changes with the desired result that the criteria for evaluating the Borrowers financial condition shall be the same after such Accounting Changes as if such Accounting Changes had not been made. Until such time as such an amendment shall have been executed and delivered by the Borrower, the Administrative Agent and the Required Lenders, all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Changes had not occurred. Accounting Changes refers to changes in (a) accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable, the SEC, (b) the Borrowers manner of accounting as directed or otherwise required or requested by the SEC (including such SEC changes affecting a Qualified Parent Company and applicable to the Borrower), and (c) the Borrowers manner of accounting addressed in a preferability letter from the Borrowers independent auditors to the Borrower (or a Qualified Parent Company and applicable to the Borrower) in order for such auditor to deliver an opinion on the Borrowers financial statements required to be delivered pursuant to Section 6.1 without qualification."
"Immaterial Subsidiary: at any date of determination, each Subsidiary of the Borrower that, when aggregated with each other Subsidiary as to which a specified condition in Section 8.1 applies at such time, does not account for more than 5% of (i) Total Assets at such date or (ii) Consolidated Operating Cash Flow for the period of four fiscal quarters ending on the date of the most recent consolidated balance sheet delivered pursuant to Section 6.1(a) or (b)."
"Interest Payment Date: (a) as to any ABR Loan (including Swingline Loans), the last Business Day of each March, June, September and December to occur while such Loan is outstanding and the final maturity date of such Loan, (b) as to any Eurodollar Loan having an Interest Period of three months or less, the last day of such Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer than three months, each day that is three months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period and (d) as to any Loan (other than any Revolving Loan that is an ABR Loan and any Swingline Loan), the date of any repayment or prepayment made in respect thereof."
"holding the relevant Class of Loans, twelve months or one week thereafter, as selected by the Borrower in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and (b) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Eurodollar Loan and ending one, two, three, six or, if consented to by (which consent shall not be unreasonably withheld) each Lender holding the relevant Class of Loans, twelve months thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent not less than three Business Days prior to the last day of the then current Interest Period with respect thereto; provided that, all of the foregoing provisions relating to Interest Periods are subject to the following:"
"Material Adverse Effect: a material adverse effect on (a) the business, property, operations or condition (financial or otherwise) of the Borrower and its Subsidiaries taken as a whole or (b)the validity or enforceability of any material provision of this Agreement or any of the other Loan Documents or the rights or remedies of the Administrative Agent or the Lenders hereunder or thereunder."
"Ratings Decline Period means the period that (i)begins on the earlier of (a) the date of the first public announcement of the occurrence of a transaction that, if consummated, would constitute a Change of Control and (b) the occurrence of such Change of Control and (ii) ends 90 days following consummation of such Change of Control; provided that such period shall be extended for so long as the rating of the Ratings Entity, as noted by the applicable Rating Agency, is under publicly announced consideration for downgrade by the applicable Rating Agency."
"(ii) the Ratings Entity does not have a corporate family rating (or equivalent term) of at least B1 from Moodys and at least B+ from S&P (or the equivalent ratings in the case of any other Rating Agency), in each case, with a stable or positive outlook, at the time of the applicable Change of Control or at any time thereafter until the termination of the applicable Ratings Decline Period; or"
"Recovery Event: any settlement of or payment, or series of related settlements or payments, in respect of any property or casualty insurance claim or any condemnation proceeding relating to any asset of the Borrower or any of its Subsidiaries that yields gross cash proceeds to the Borrower or any of its Subsidiaries in excess of $100,000,000."
"Regulated Subsidiary: any Subsidiary that is prohibited, in connection with telephony licenses issued to it, from becoming a Loan Party by reason of the requirement of consent from any Governmental Authority, but only for so long as such consent has not been obtained; provided, that, until such Subsidiary becomes a Loan Party and all of the Equity Interests of such Subsidiary owned by any Loan Party is pledged as Collateral, (a) such Subsidiary owns no assets other than (i) governmental licenses to operate a telephony business and leases of infrastructure necessary to operate such licenses and (ii) other assets (held either directly or through any Subsidiary or other Equity Interests) with an aggregate value not exceeding $250,000 and (b) the Borrower shall not directly own any Equity Interests in such Subsidiary unless all such Equity Interests have been pledged as Collateral."
"Revolving Commitment Cap: the greater of (x) $1,750,000,000 and (y) 0.5x Annualized Operating Cash Flow calculated in the manner contemplated by Section 1.2(f) as if any Material Acquisition or Material Disposition made prior to or concurrently with the incurrence of such Indebtedness was incurred on the first day of the applicable Test Period for the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 6.1(a) or (b); provided that to the extent any Revolving Commitment was permitted by clause (y) at the time it was incurred, it shall be deemed to be permitted at all times thereafter regardless of any subsequent decrease in Annualized Operating Cash Flow."
"Series: Incremental Term Loans, Extended Term Loans and/or Replacement Term Loans, as applicable, that are established pursuant to a single Incremental Activation Notice and provide for the same terms unless such Incremental Activation Notice provides that such Incremental Term Loans, Extended Term Loans and/or Replacement Term Loans shall be a part of a previously established Class of Term Loans."
"related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time."
"under this Agreement as a Term A Loan.Term A Loans that were Eurodollar Loans of a particular Eurodollar Tranche under the Existing Credit Agreement immediately prior to the effectiveness of this Agreement on the Restatement Effective Date shall initially be Eurodollar Loans of a Eurodollar Tranche under this Agreement with an initial Interest Period equal to the then remaining Interest Period for such Eurodollar Tranche under the Existing Credit Agreement (and with the same Eurodollar Rate).Term A Loans that were ABR Loans under the Existing Credit Agreement immediately prior to the effectiveness of this Agreement on the Restatement Effective Date shall initially be ABR Loans under this Agreement.The Term A Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.10."
"Term I 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 I Maturity Date), the remaining principal balance of such Term I Loan outstanding on such date."
"transmission system as shall be approved by the Administrative Agent pursuant), appropriately completed and signed by a Responsible Officer of the Borrower (which notice must be received by the Swingline Lender not later than 1:00 P.M., New York City time, on the proposed Borrowing Date), specifying (i) the amount to be borrowed and (ii) the requested Borrowing Date (which shall be a Business Day during the Revolving Commitment Period for any Revolving Commitments).Each borrowing under the Swingline Commitment shall be in an amount equal to $1,000,000 or a whole multiple of $500,000 in excess thereof.Not later than 3:00 P.M., New York City time, on the Borrowing Date specified in a notice in respect of Swingline Loans, the Swingline Lender shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the amount of the Swingline Loan to be made by the Swingline Lender.The Administrative Agent shall make the proceeds of such Swingline Loan available to the Borrower on such Borrowing Date by depositing such proceeds in the account of the Borrower with the Administrative Agent on such Borrowing Date in immediately available funds."
"(b) The Swingline Lender, at any time and from time to time in its sole and absolute discretion and in consultation with the Borrower (provided that the failure to so consult shall not affect the ability of the Swingline Lender to make the following request) may, on behalf of the Borrower (which hereby irrevocably directs the Swingline Lender to act on its behalf), on one Business Days notice given by the Swingline Lender no later than 1:00 P.M., New York City time, request each Revolving Lender to make, and each Revolving Lender hereby agrees to make, a Revolving Loan, in an amount equal to such Revolving Lenders Revolving Percentage of the aggregate amount of the Swingline Loans (the Refunded Swingline Loans) outstanding on the date of such notice, to repay the Swingline Lender. Each Revolving Lender shall make the amount of such Revolving Loan available to the Administrative Agent at the Funding Office in immediately available funds, not later than 12:00 Noon, New York City time, one Business Day after the date of such notice. The proceeds of such Revolving Loans shall be immediately made available by the Administrative Agent to the Swingline Lender for application by the Swingline Lender to the repayment of the Refunded Swingline Loans. The Borrower irrevocably authorizes the Swingline Lender to charge the Borrowers accounts with the Administrative Agent (up to the amount available in each such account) in order to immediately pay the amount of such Refunded Swingline Loans to the extent amounts received from the Revolving Lenders are not sufficient to repay in full such Refunded Swingline Loans."
"(c) If prior to the time a Revolving Loan would have otherwise been made pursuant to Section 2.5(b), one of the events described in Section 8.1(g) shall have occurred and be continuing with respect to the Borrower or if for any other reason, as determined by the Swingline Lender in its sole discretion, Revolving Loans may not be made as contemplated by Section 2.5(b), each Revolving Lender shall, on the date such Revolving Loan was to have been made pursuant to the notice referred to in Section 2.5(b), purchase for cash an undivided participating interest in the then outstanding Swingline Loans by paying to the Swingline Lender an amount (the Swingline Participation Amount) equal to (i) such Revolving Lenders Revolving Percentage times (ii) the sum of the aggregate principal amount of Swingline Loans then outstanding that were to have been repaid with such Revolving Loans."
"(d) Whenever, at any time after the Swingline Lender has received from any Revolving Lender such Lenders Swingline Participation Amount, the Swingline Lender receives any payment on account of the Swingline Loans, the Swingline Lender will distribute to such Lender its Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lenders participating interest was outstanding and funded and, in the case of principal and interest payments, to reflect such Lenders pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all Swingline Loans then due); provided, however, that in the event that such payment received by the Swingline Lender is required to be returned, such Revolving Lender will return to the Swingline Lender any portion thereof previously distributed to it by the Swingline Lender."
"Voluntary Prepayment Notice), delivered to the Administrative Agent no later than 1:00P.M., New York City time, three Business Days prior to the date of such Offered Voluntary Prepayment, which notice shall specify the date and amount of the Offered Voluntary Prepayment and the Applicable Price determined by the Administrative Agent.Upon receipt of any Offered Voluntary Prepayment Notice, the Administrative Agent shall promptly notify each relevant Lender thereof.If any Offered Voluntary Prepayment Notice is given, the amount specified in such notice shall be due and payable to the applicable Lenders, subject to the Applicable Price on the applicable Term Loans, on the date specified therein together with accrued interest (on the par principal amount) to but not including such date on the amount prepaid."
"(a) If on any date the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, with respect to an amount equal to 75% of such Net Cash Proceeds (Allocated Proceeds; provided that the Borrower or such Subsidiary may instead deem a portion of such Net Cash Proceeds equal to the first 75% of the Total Net Proceeds to the Borrower or such Subsidiary from such Asset Sale or Recovery Event, when and as received, to be the Allocated Proceeds of such Asset Sale or Recovery Event), (i) if such Allocated Proceeds are not Reinvestment Proceeds, such Allocated Proceeds shall be applied on the fifth Business Day after the date such proceeds are received toward the prepayment of the Term Loans or (ii) if such Allocated Proceeds are Reinvestment Proceeds, on each Reinvestment Prepayment Date, an amount equal to the relevant Reinvestment Prepayment Amount shall be applied toward the prepayment of the Term Loans in the manner specified in Section 2.9(c); provided that, notwithstanding clauses (i) and (ii) above, to the extent"
"(c) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate for the period until such Lender makes such amount immediately available to the Administrative Agent and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lenders share of such borrowing is not made available to the Administrative Agent by such Lender within three Business Days of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans of the relevant Class, on demand, from the Borrower. Nothing in this paragraph shall be deemed to limit the rights of the Administrative Agent or the Borrower against any Lender."
"(d) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment being made hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three Business Days of such required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower."
"(i) shall subject any Lender (including any Issuing Lender) to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any Application or any Eurodollar Loan made by it, or change the basis of taxation of payments to such Lender in respect thereof (except for Non-Excluded Taxes covered by Section 2.17 and changes in the rate of tax on the overall net income of such Lender);"
"and the result of any of the foregoing is to increase the cost to such Lender or Issuing Lender, by an amount that such Lender or Issuing Lender deems to be material, of making, converting into, continuing or maintaining Eurodollar Loans or issuing or participating in Letters of Credit, or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay such Lender or Issuing Lender, upon its demand, any additional amounts necessary to compensate such Lender for such increased cost or reduced amount receivable.If any Lender or Issuing Lender becomes entitled to claim any additional amounts pursuant to this paragraph, it shall promptly notify the Borrower (with a copy to the Administrative Agent) of the event by reason of which it has become so entitled."
"levied, collected, withheld or assessed by any Governmental Authority, excluding net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or any Lender as a result of a present or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising 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), and excluding any U.S. federal withholding Taxes under FATCA imposed on the Administrative Agent or any Lender. If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (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, provided, however, that the Borrower shall not be required to increase any such amounts payable to any Lender with respect to any Non-Excluded Taxes (i) that are attributable to such Lenders failure to comply with the requirements of paragraph (d) or (e) of this Section or (ii) that are United States withholding taxes imposed on amounts payable to such Lender at the time the Lender becomes a party to this Agreement, except to the extent that such Lenders assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such Non-Excluded Taxes pursuant to this paragraph."
(f) Any Lender (or Transferee) claiming any indemnity payment or additional amounts payable pursuant to Section 2.17(a) shall use reasonable efforts (consistent with legal and regulatory restrictions) to file any certificate or document reasonably requested in writing by the Borrower if the making of such a filing would avoid the need for or reduce the amount of any such indemnity payment or additional amounts that may thereafter accrue.
"2.19. Change of Lending Office.Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 2.16 or 2.17(a) with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Loans affected by such event with the object of avoiding the consequences of such event; provided, that such designation is made on terms that, in the sole judgment of such Lender, cause such Lender and its lending office(s) to suffer no economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section shall affect or postpone any of the obligations of any Borrower or the rights of any Lender pursuant to Section 2.16 or 2.17(a)."
"In the event that any Lender (a Non-Consenting Lender) fails to consent to any proposed amendment, modification, termination, waiver or consent with respect to any provision hereof or of any other Loan Document that requires the unanimous approval of all of the Lenders or the approval of all of the Lenders directly affected thereby, in each case in accordance with the terms of Section 10.1, the Borrower shall be permitted to replace such Non- Consenting Lender with a replacement financial institution satisfactory to the Administrative Agent (if such replacement financial institution was not already a Lender) and, if such replacement involves the assignment of a Revolving Commitment to a Person other than a Revolving Lender that is not a Defaulting Lender, the Administrative Agent and each Issuing Lender, so long as the consent of the Required Lenders shall have been obtained with respect to"
"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 or except as provided in Section 10.19, 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."
"(a) Notwithstanding anything to the contrary contained in this Agreement, pursuant to one or more offers (each, a Permitted Debt Exchange Offer) made from time to time by the Borrower to all 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) with outstanding Term Loans of a particular Class, the Borrower may from time to time consummate one or more exchanges of such Term Loans for Indebtedness (in the form of senior secured, senior unsecured, senior subordinated, or subordinated notes or loans) (such Indebtedness, Permitted Debt Exchange Notes and each such exchange, a Permitted Debt Exchange), so long as the following conditions are satisfied:"
"(iii) the stated final maturity of such Permitted Debt Exchange Notes is not earlier than the Term Maturity Date for the Class or Classes of Term Loans being exchanged, and such stated final maturity is not subject to any conditions that could result in such stated final maturity occurring on a date that precedes such Term Maturity Date (it being understood that acceleration or mandatory repayment, prepayment, redemption or repurchase of such Permitted Debt Exchange Notes upon the occurrence of an event of default, a change in control, an event of loss or an asset disposition shall not be deemed to constitute a change in the stated final maturity thereof);"
"(ii) any Lender is at that time a Defaulting Lender, unless such Issuing Lender has entered into arrangements, including, if requested, the delivery of Cash Collateral, reasonably satisfactory to the Issuing Lender with the Borrower or such Lender to eliminate such Issuing Lenders actual or potential Fronting Exposure (after giving effect to Section 2.21(a)(iii)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such Issuing Lender has actual or potential Fronting Exposure, as it may elect in its sole discretion;"
"(a) The Borrower will pay a fee for the benefit of each Revolving Lender on all outstanding Letters of Credit at a per annum rate equal to the product of (i) the Applicable Margin then in effect with respect to Eurodollar Loans made pursuant to the Revolving Commitment of such Revolving Lender and (ii) such Revolving Lenders daily Revolving Percentage of the undrawn and unexpired amount of each Letters of Credit, payable quarterly in arrears on each L/C Fee Payment Date after the issuance date; provided, however, for the avoidance of doubt, any such fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral satisfactory to the Issuing Lender pursuant to this Section 3 shall be payable, to the maximum extent permitted by applicable Law, to the other Revolving Lenders in accordance with the upward adjustments in their respective Revolving Percentages allocable to such Letter of Credit pursuant to Section 2.21(a)(iii), with the balance of such fee, if any, payable to the Issuing Lender for its own account.In addition, the Borrower shall pay to the relevant Issuing Lender for its own account a fronting fee with respect to each Letter of Credit at a per annum rate of 0.125% or a lower rate separately agreed between the Borrower and such Issuing Lender on the undrawn and unexpired amount of each Letter of Credit issued by such Issuing Lender, payable quarterly in arrears on each L/C Fee Payment Date after the relevant issuance date."
"(c) Whenever, at any time after the relevant Issuing Lender has made payment under any Letter of Credit and has received from any L/C Participant its pro rata share of such payment in accordance with Section 3.4(a), such Issuing Lender receives any payment through the Administrative Agent related to such Letter of Credit (whether directly from the Borrower or otherwise, including proceeds of collateral applied thereto by such Issuing Lender), or any payment of interest on account thereof, the Administrative Agent will distribute to each such Issuing Lender will distribute to each L/C Participant its pro rata share thereof; provided, however, that in the event that any such payment received by such Issuing Lender shall be required to be returned by such Issuing Lender, such L/C Participant shall return to the Administrative Agent the portion thereof previously distributed by such Issuing Lender to it."
"(a) as soon as available, but in any event within 90 days after the end of each fiscal year of the Borrower, a copy of the audited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such year and the related audited consolidated statements of income and of cash flows for such year, setting forth in each case in comparative form the figures for the previous year, reported on without a going concern or like qualification or exception, or qualification arising out of the scope of the audit, by KPMG or other independent certified public accountants of nationally recognized standing; and"
"Documents required to be delivered pursuant to Section 6.1(a) or (b) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrowers website on the Internet at the website address listed on Schedule 10.2; 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"
"(b) concurrently with the delivery of any financial statements pursuant to Section 6.1, (i) a certificate of a Responsible Officer stating that, to the best of each such Responsible Officers knowledge, each Loan Party during such period has observed or performed all of its covenants and other agreements, and satisfied every condition, contained in this Agreement and the other Loan Documents to which it is a party to be observed, performed or satisfied by it, and that such Responsible Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate and (ii) a Compliance Certificate containing all information and calculations necessary for determining compliance by Holdings, the Borrower and its Subsidiaries with the provisions of this Agreement referred to therein as of the last day of the fiscal quarter or fiscal year of the Borrower, as the case may be;"
"(e) the Borrower shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender reasonably requests in order to comply with its ongoing obligations under applicable know your customer an anti- money laundering rules and regulations, including the Patriot Act (as hereinafter defined)."
"(d) the following events: (i) the occurrence of any Reportable Event with respect to any Plan, a failure to make any required contribution to a Plan, the creation of any Lien in favor of the PBGC or a Plan or any withdrawal from, or the termination, Reorganization or Insolvency of, any Multiemployer Plan, (ii) the institution of proceedings or the taking of any other action by the PBGC or any Loan Party or any Commonly Controlled Entity or any Multiemployer Plan with respect to the withdrawal from, or the termination, Reorganization or Insolvency of, any Plan or (iii) within five Business Days after the receipt thereof by any Loan Party or any Commonly Controlled Entity, a copy of any notice from the PBGC stating its intention to terminate a Plan or to have a trustee appointed to administer any Plan;"
"6.9. Additional Collateral.With respect to any new Subsidiary (other than any Specified Excluded Subsidiary so long as it qualifies) created or acquired by the Borrower or any of its Subsidiaries (which shall be deemed to have occurred in the event that any Specified Excluded Subsidiary ceases to qualify as such, it being understood that such Subsidiaries will not be required to become Subsidiary Guarantors until such time), promptly (a) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or"
"(e) Indebtedness of Holdings, the Borrower and Charter Communications Operating Capital Corp. (and Guarantee Obligations of any Guarantor in respect thereof) so long as (i) at the time of the incurrence or issuance of such Indebtedness, no Default or Event of Default shall have occurred and be continuing or would result therefrom, (ii) such Indebtedness shall have no scheduled amortization prior to the date that is six months after the Term I Maturity Date, (iii) the terms of the documentation for such Indebtedness do not require Holdings, the Borrower or any of its Subsidiaries to repurchase, repay or redeem such debt securities (or make an offer to do any of the foregoing) upon the happening of any event (other than as a result of an event of default thereunder or pursuant to customary change of control provisions or asset sale offers) prior to the Term I Maturity Date and (iv) the documentation for such Indebtedness does not contain financial maintenance covenants (which term shall not include financials-based incurrence tests) and provides for other covenants, events of default and other terms that the Borrower determines are not worse than market terms for similar financings at the time such Indebtedness is incurred;"
"(g) Indebtedness of the Borrower or any of its Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn by the Borrower or such Subsidiary in the ordinary course of business against insufficient funds, so long as such Indebtedness is promptly repaid;"
"(e) easements, rights-of-way, municipal and zoning ordinances, title defects, restrictions and other similar encumbrances incurred in the ordinary course of business that, in the aggregate, are not substantial in amount and that do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of Holdings, the Borrower or any of its Subsidiaries;"
"(e) so long as no Default or Event of Default has occurred or is continuing or would result therefrom, Holdings or the Borrower may merge or consolidate with any other Person; provided that (i) Holdings or the Borrower, as applicable, shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not Holdings or the Borrower, as applicable (any such Person, the Successor Company), (A) the Successor Company shall be an entity organized or existing under the Laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of Holdings or the Borrower, as applicable, under this Agreement and the other Loan Documents to which Holdings or the Borrower, as applicable, is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guarantee and Collateral Agreement and other applicable Loan Documents confirmed that its obligations thereunder shall apply to the Successor Companys obligations under the Loan Documents, (D) the Borrower shall have delivered to the Administrative Agent an officers certificate stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement and (E) the Administrative Agent shall have received such legal opinions, certificates and other documents as it may reasonably request; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, Holdings or the Borrower, as applicable, under this Agreement."
"(a) (i) any Subsidiary may make Restricted Payments to the Borrower or any Wholly Owned Subsidiary Guarantor, (ii) any Subsidiary of the Borrower that is not a Subsidiary Guarantor may make Restricted Payments to any other Subsidiary of the Borrower and (iii) if such Subsidiary is not a Wholly Owned Subsidiary, any Subsidiary may make Restricted Payments to each holder of its Equity Interests other than the Borrower or any of its Subsidiaries so long as such Restricted Payment is made on a pro rata basis to the holders of the applicable class of Equity Interests;"
"(b) the Borrower may make distributions (directly or indirectly) to any Qualified Parent Company or any Affiliate of the Borrower for the purpose of enabling such Person to make interest payments or dividend payments in respect of its Qualified Indebtedness (other than interest or dividends that become due as a result of the acceleration of the maturity of such Indebtedness after an event of default or similar event), provided that (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (ii) no DHC Default shall have occurred and be continuing or would result therefrom (unless the use of proceeds of such distribution cures all such DHC Defaults) and (iii) each such distribution shall be made no earlier than 30 days prior to the date the relevant interest payment or dividend payment is due;"
"(c) the Borrower may make distributions to any Qualified Parent Company to be used to repay, repurchase, redeem, cancel or otherwise acquire or retire (collectively, Debt Repayment) any such Persons Indebtedness; provided that (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (ii) no DHC Default shall have occurred and be continuing or would result therefrom (unless the use of proceeds of such distribution cures all such DHC Defaults), (iii) Available Liquidity shall, after giving pro forma effect to such distribution, be at least $250,000,000 and (iv) such distribution shall be made no earlier than 60 days prior to the date the relevant Debt Repayment is made;"
"connection with any issuance, sale or incurrence by such Qualified Parent Company of Equity Interests or Indebtedness, any exchange of securities or a tender for outstanding debt securities or any actual or proposed Investment, (ii) the costs and expenses of any offer to exchange privately placed securities in respect of the foregoing for publicly registered securities or any similar concept having a comparable purpose, (iii) other administrative expenses (including legal, accounting, other professional fees and costs, printing and other such fees and expenses) incurred in the ordinary course of business, in an aggregate amount in the case of this clause (iii) not to exceed $5,000,000 in any fiscal year or (iv) all or a portion of the consideration payable for any Investment that would have been permitted to be made by the Borrower pursuant to Section 7.7, including, without limitation, (A) all payments required to be made with respect to the Bright House Acquisition Transactions pursuant to the Bright House Transaction Agreements (including, without limitation, all post-acquisition payments pursuant to the Bright House Transaction Agreements) and (B) all payments pursuant to agreements entered into in connection with any such Investment (including, without limitation, post-acquisition payments required to be made in connection with purchase price adjustments or the utilization of tax assets); provided that (a) the assets or Equity Interests acquired in such Investment (to the extent of amounts distributed by the Borrower to enable such Qualified Parent Company to make such Investment) are promptly contributed to the capital of (or otherwise transferred to) the Borrower or a Subsidiary and (b) such Investment shall be deemed for purposes of Section 7.7 to be an Investment by the Borrower;"
"(m) the Borrower and its Subsidiaries may contribute operating assets to a Wholly Owned Subsidiary, provided that (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) a binding Contractual Obligation with a counterparty other than a member of the Charter Group to Dispose of such assets or Wholly Owned Subsidiary is in effect at the time of such contribution, (iii) such Disposition is consummated in accordance with Section 7.5(f) within five Business Days of such contribution or, if such Disposition is not so consummated, then within eight Business Days of such contribution such contribution is reversed or such Wholly Owned Subsidiary complies with Section 6.9 and (iv) such Wholly Owned Subsidiary shall not make any Investments with such assets or the proceeds thereof, including pursuant to Section 7.7(e)(ii) or (iv);"
"(d) Amend, modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, any of the terms of the Management Fee Agreement, other than any such amendment, modification, waiver or other change that (i) (x) would extend the due date or reduce (or increase to the amount permitted by Section 7.8(c)) the amount of any payment thereunder or (y) does not adversely affect the interests of the Lenders (it being understood that a change in the manager thereunder to another member of the Charter Group or a renewal of such agreement does not adversely affect the interests of the Lenders) and (ii) does not involve the payment of a consent fee."
"7.10. Sales and Leasebacks.Enter into any arrangementwith any Person (other than Subsidiaries of the Borrower) providing for the leasing by the Borrower or any Subsidiary of real or personal property that has been or is to be sold or transferred by the Borrower or such Subsidiary to such Person or to any other Person to whom funds have been or are to be advanced by such Person on the security of such property or rental obligations of the Borrower or such Subsidiary unless, after giving effect thereto, the aggregate outstanding amount of Attributable Debt does not exceed $500,000,000."
"(c) In the case of Holdings, (i) conduct, transact or otherwise engage in, commit to conduct, transact or otherwise engage in any business or operations other than a Permitted Line of Business, (ii) incur any obligations or liabilities other than obligations under the Loan Documents, Indebtedness permitted to be incurred by it under Section 7.2 and other customary obligations incidental to its existence and ownership and liabilities and obligations related to the purchase or ownership of Indebtedness that it is not prohibited from purchasing or owning pursuant to any Loan Document or (iii) use any proceeds or amounts received from the Borrower or any of its Subsidiaries for purposes of enabling it to effect any transaction prohibited under Section 7.7(h)(ii)."
"more defaults, events or conditions of the type described in clause (i), (ii) or (iii) of this paragraph (e) shall have occurred and be continuing with respect to such Indebtedness the outstanding aggregate principal amount of which exceeds $400,000,000 and (y) for the avoidance of doubt, a requirement to make a mandatory offer to repurchase under the terms of any Indebtedness as a result of a change of control (or equivalent term) shall not constitute a Default or an Event of Default under this paragraph (e)(iii) so long as (A) on or prior to the date the events constituting such change of control (or equivalent term) occur, either (I) the terms of such Indebtedness have been amended to eliminate the requirement to make such offer, (II) such Indebtedness has been defeased or discharged so that such requirement shall no longer apply (and, in the event such change of control is subject to a requirement that a specific credit ratings event or similar condition subsequent occur, no Event of Default shall exist pursuant to this paragraph (e)(iii) until such time as the specific credit ratings event or similar condition subsequent has also occurred resulting in the obligor under such Indebtedness to become unconditionally obligated to make such offer) or (III) solely in the case of Indebtedness of any Person acquired by the Borrower or any of its Subsidiaries where such change of control (or equivalent term) under such Indebtedness resulted from the Borrower or one of its Subsidiarys acquisition of such Person, (x) the sum of Available Liquidity plus any available debt financing commitments from any Revolving Lender or any Affiliate of a Revolving Lender or any other financial institution of nationally recognized standing available to the Borrower or its Subsidiaries for purposes of refinancing such Indebtedness is at least equal to the aggregate amount that would be required to repay such Indebtedness pursuant to any required change of control offer (or equivalent term) pursuant to the terms of such Indebtedness at all times prior to the expiration of the rights of the holders of such Indebtedness to require the repurchase or repayment of such Indebtedness as a result of such acquisition and (y) the Borrower or the applicable Subsidiary complies with the provisions of such Indebtedness that are applicable as a result of such acquisition (including by consummating any required change of control offer (or equivalent term) for such Indebtedness); or"
"Notwithstanding anything to the contrary herein, solely for the purpose of determining whether a Default has occurred under clause (g) above, any reference in such clause to any Subsidiary shall be deemed not to include any Subsidiary that is an Immaterial Subsidiary or at such time could, upon designation by the Borrower, become an Immaterial Subsidiary affected by any event or circumstances referred to in such clause unless the gross revenues of such Subsidiary together with the gross revenues of all other Subsidiaries affected by such event or circumstance referred to in such clause for the period of four fiscal quarters ending on the date of the most recent balance sheet of the Borrower delivered pursuant to Section 6.1(a) or (b) shall exceed 5% of the gross revenues of the Borrower and its Subsidiaries for such period, in each case determined in accordance with GAAP."
"8.2. Application of Funds.After the exercise of remedies provided for in Section 8.1 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.1), any amounts received on account of the Obligations (other than the Equally and Ratably Secured Notes Obligations) shall, subject to the Guarantee and Collateral Agreement and any First Lien Intercreditor Agreement, be applied by the Administrative Agent in the following order:"
"(a) 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.Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent shall not 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."
"(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 Borrower 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."
"and expense that may be incurred by it by reason of taking or continuing to take any such action.The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of the Required Lenders (or, if so specified by this Agreement, all Lenders), and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans."
9.11. Collateral and Guaranty Matters.Each of the Lenders (including in its capacities as a party to a Specified Cash Management Agreement or a Specified Hedge Agreement) and the Issuing Lender irrevocably authorize the Administrative Agent to release Liens on the Collateral and/or Guarantors from their obligations under the Guarantee and Collateral Agreement under the circumstances described in Section 9.15 of the Guarantee and Collateral Agreement.
"consent of all Lenders; (iii) reduce the percentage specified in the definition of Majority Facility Lenders with respect to the Revolving Facility or any Class of Term Loans without the written consent of all Lenders under the Revolving Facility or such Class of Term Loans, respectively; (iv) amend, modify or waive any provision of Section 9 without the written consent of the Administrative Agent; (v) amend, modify or waive any provision of Section 2.4 or 2.5 without the written consent of the Swingline Lender; or (vi) amend, modify or waive any provision of Section 3 without the written consent of each affected Issuing Lender.Any such waiver and any such amendment, supplement or modification shall apply equally to each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the Agents and all future holders of the Loans.In the case of any waiver, the Loan Parties, the Lenders and the Agents shall be restored to their former position and rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon."
"(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 telecopier 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:"
"10.5. Payment of Expenses and Taxes.The Borrower agrees (a) to pay or reimburse the Administrative Agent for all its reasonable out-of-pocket costs and expenses incurred in connection with the development, preparation and execution of, and any amendment, supplement or modification to, or waiver or forbearance of, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including the reasonable fees and disbursements of one firm of counsel to the Administrative Agent and filing and recording fees and expenses, (b) to pay or reimburse each Lender and each Agent for all its costs and expenses incurred in connection with the enforcement or preservation of any rights, privileges, powers or remedies under this Agreement, the other Loan Documents and any such other documents, including the fees and disbursements of one firm of counsel selected by the Administrative Agent, together with any special or local counsel, to the Administrative Agent and, following the occurrence and during the continuance of an Event of Default, not more than one other firm of counsel to the Lenders (it being understood that the Borrower shall not be obligated to reimburse any Lender (other than the Administrative Agent as provided above) for its expenses pursuant to this clause (b) except to the extent that an Event of Default has occurred and is continuing at the time of any proposed amendment or waiver), (c) to pay, indemnify, and hold each Lender and each Agent harmless from, any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other taxes, if any, that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any such other documents, (d) if any Event of Default shall have occurred, to pay or reimburse all reasonable fees and expenses of a financial advisor engaged on behalf of, or for the benefit of, the Agents and the Lenders accruing from and after the occurrence of such Event of Default, (e) to pay, indemnify, and hold each Lender, each Agent, their advisors and affiliates and their respective officers, directors, trustees, employees, agents and controlling persons (each, an Indemnitee) harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating to the use of proceeds of the Loans or the violation of, noncompliance with or liability under, any Environmental Law applicable to the operations of Holdings, the Borrower any of its Subsidiaries or any of the Properties the reasonable fees and expenses of legal counsel in connection with claims, actions or proceedings by any Indemnitee against any Loan Party under any Loan Document, and (f) to pay, indemnify, and hold each Indemnitee harmless from and against any actual or prospective claim, litigation, investigation or proceeding relating"
"(C) the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an administrative questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its Affiliates and their related parties or their respective 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;"
"(E) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swingline Loans in accordance with its Revolving Percentage in each of the foregoing. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs."
"For the purposes of this Section 10.6, 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 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."
"(c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell participations to one or more banks or other entities (other than a natural person) (a Participant) in all or a portion of such Lenders rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans owing to it); provided that (A)such Lenders obligations under this Agreement shall remain unchanged, (B)such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C)the Borrower, the Administrative Agent, the Issuing Lender and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lenders rights and obligations under this Agreement. Any agreement 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 may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver that (1) requires the consent of each Lender directly affected thereby pursuant to the proviso to the second sentence of Section 10.1 and (2) directly affects such Participant.Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.16, 2.17, 2.18 and 10.5 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section.To the extent permitted by law, each Participant also shall be entitled to the benefits of Section10.7(b) as though it were a Lender, provided such Participant shall be subject to Section 10.7(a) as though it were a Lender."
"(ii) A Participant shall not be entitled to receive any greater payment under Section 2.16 or 2.17 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrowers prior written consent.Any Participant that is a Non-U.S. Lender shall not be entitled to the benefits of Section2.17 unless such Participant complies with Section 2.17(d)."
"(b) At the Discharge Date, the Collateral shall be released from the Liens created by the Guarantee and Collateral Agreement, and the Guarantee and Collateral Agreement and all obligations (other than those expressly stated to survive such termination) of the Administrative Agent and each Loan Party under the Guarantee and Collateral Agreement shall terminate, all without delivery of any instrument or performance of any act by any Person."
"10.17. Electronic Execution of Assignments and Certain Other Documents. The words execution, execute, signed, signature, and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, 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 record keeping 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 notwithstanding anything contained herein to the contrary the Administrative Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it."
"10.18. USA Patriot Act. Each Lender hereby notifies the Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the Patriot Act), it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender to identify the Borrower in accordance with the Patriot Act."
"10.19. EU Bail-In Provisions.Notwithstanding anything to the contrary in this Agreement or any other 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:"
"WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novation of the obligations and liabilities existing under the Existing Guarantee and Collateral Agreement or evidence satisfaction of any of such obligations and that this Agreement amend and restate in its entirety the Existing Guarantee and Collateral Agreement and re-evidence the obligations of the Grantors party thereto outstanding thereunder;"
"Borrower Obligations: the collective reference to the unpaid principal of and interest on the Loans and Reimbursement Obligations and all other obligations and liabilities of the Borrower or, in the case of Specified Hedge Agreements or Specified Cash Agreements, of any Subsidiary of the Borrower (including, without limitation, any increase in the amounts of the Loans and/or Reimbursement Obligations together with any and all interest accruing at the then applicable rate provided in the Credit Agreement after the maturity of the Loans and Reimbursement Obligations and interest accruing at the then applicable rate provided in the Credit Agreement after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) to the Administrative Agent or any Lender (or, in the case of any Specified Hedge Agreement, any Qualified Counterparty, or, in the case of any Specified Hedge Agreement or Specified Cash Management Agreement, any Affiliate of any Lender and any former Lender or former Affiliate of Lender to the extent provided in the definition of Specified Hedge Agreement or Specified Cash Management Agreement in the Credit Agreement), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, the Credit Agreement, this Agreement, the other Loan Documents, any Letter of Credit, any Non-Facility Letter of Credit, any Specified Hedge Agreement, any Specified Cash Management Agreement or any other document made, delivered or given in connection with any of the foregoing, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without"
"Guaranteed Obligations: (i) with respect to the Borrower, the Equally and Ratably Secured Notes Obligations, all obligations and liabilities of each Guarantor which may arise under or in connection with any Non-Facility Letters of Credit issued for the account of any Guarantor and all Borrower Obligations which may arise under or in connection with Specified Hedge Agreements or Specified Cash Agreements of any Subsidiary of the Borrower and (ii) with respect to each Guarantor, the Borrower Obligations, all obligations and liabilities of each Guarantor which may arise under or in connection with any Non-Facility Letters of Credit issued for the account of any Guarantor and the Equally and Ratably Secured Notes Obligations (excluding, in the case of (x) TWC, Equally and Ratably Secured Notes Obligations in respect of the TWC Notes and (y) TWCE, Equally and Ratably Secured Notes Obligations in respect of the TWCE Notes)."
"Patent License: all agreements, whether written or oral, providing for the grant by or to any Grantor of any right to manufacture, use or sell any invention covered in whole or in part by a Patent, 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)."
"(i) any Issuer (other than any Non-Recourse Subsidiary) that is a limited liability company, but not any of such Grantors obligations from time to time as a holder of interests in any such Issuer (unless the Administrative Agent or its designee, on behalf of the Administrative Agent, shall elect to become a holder of interests in any such Issuer in connection with its exercise of remedies pursuant to the terms hereof);"
"(ii) any and all moneys due and to become due to such Grantor now or in the future by way of a distribution made to such Grantor in its capacity as a general partner or limited partner, as the case may be, in any such Issuer or otherwise in respect of such Grantors interest as a general partner or limited partner, as the case may be, in any such Issuer;"
"TWCE Indenture: that certain indenture, dated as of April 30, 1992, by and among Time Warner Inc., TWCE and the TWCE Notes Trustee, as supplemented by that certain first supplemental indenture, dated as of June 30, 1992, by and among TWCE, Time Warner Inc., the TWCE Notes Trustee and the other parties thereto."
"(d) The guarantee contained in this Section 2 shall remain in full force and effect until all Guaranteed Obligations (other than Guaranteed Obligations in respect of Equally and Ratably Secured Notes Obligations) are paid in full, no Letter of Credit shall be outstanding and the Commitments are terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrower may be free from any Borrower Obligations."
"2.3. No Subrogation. Notwithstanding any payment made by any Guarantor hereunder or any set-off or application of funds of any Guarantor by the Administrative Agent, any other Secured Party or any holder of the Equally and Ratably Secured Notes Obligations, neither the Borrower nor any Guarantor shall be entitled to be subrogated to any of the rights of the Administrative Agent, any other Secured Party or any holder of the Equally and Ratably Secured Notes Obligations against the Borrower or any other Guarantor or any collateral security or guarantee or right of offset held by the Administrative Agent or any Lender for the payment of the Guaranteed Obligations, nor shall the Borrower or any Guarantor seek or be entitled to seek any contribution or reimbursement from the Borrower or any other Guarantor in respect of payments made by the Borrower or such Guarantor hereunder, until the Discharge Date.If any amount shall be paid to any Guarantor on account of such subrogation rights at any time when all of the Guaranteed Obligations (other than Guaranteed Obligations in respect of the Equally and Ratably Secured Notes Obligations)shall not have been paid in full, such amount shall be held by such Guarantor in trust for the other Secured Parties and the holders of the Equally and Ratably Secured Notes Obligations, segregated from other funds of the Borrower orsuch Guarantor, and shall, forthwith upon receipt by the Borrower or such Guarantor, be turned over to the Administrative Agent in the exact form received by such Guarantor (duly indorsed by such Guarantor to the Administrative Agent, if required), to be applied against the Guaranteed Obligations, whether matured or unmatured, in the order specified in Section 7.3."
"2.5. Guarantee Absolute and Unconditional. The Borrower and each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by the Administrative Agent, any other Secured Party or any holder of Equally and Ratably Secured Notes Obligations upon the guarantee contained in this Section 2 or acceptance of the guarantee contained in this Section 2; the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guarantee contained in this Section 2; and all dealings between the Borrower and any of the Guarantors, on the one hand, and the Administrative Agent, the other Secured Parties and the holders of Equally and Ratably Secured Notes Obligations, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guarantee contained in this Section 2.The Borrower and each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Borrower or any of the Guarantors with respect to the Guaranteed Obligations.The Borrower and each Guarantor understands and agrees that the guarantee contained in this Section 2 shall be construed as a continuing, absolute and unconditional guarantee of payment without regard to (a) the validity or enforceability of the Credit Agreement or any other Loan Document, the TWC Notes Documents, the TWCE Notes Documents, any of the Guaranteed Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Administrative Agent, any other Secured Party or any holder of Equally and Ratably Secured Notes Obligations, (b) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower, TWC, TWCE or any other Person against the Administrative Agent, any other Secured Party or any holder of Equally and Ratably Secured Notes Obligations, or (c) any other circumstance whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower, TWC or TWCE for the Guaranteed Obligations, or of the Borrower or such Guarantor under the guarantee contained in this Section 2, in bankruptcy or in any other instance.When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against the Borrower or any Guarantor, the Administrative Agent, any other Secured Party or any holder of Equally and Ratably Secured Notes Obligations may, but shall be under no obligation to, make a similar demand on or otherwise pursue such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Guaranteed Obligations or any right of offset with respect thereto, and any failure by the Administrative Agent, any other Secured Party or any holder of Equally and Ratably Secured"
"5.2. Perfected First Priority Liens. The security interests granted pursuant to this Agreement (a) constitute valid perfected security interests in all of the Collateral in favor of the Administrative Agent, for the ratable benefit of the Secured Parties and the holders of Equally and Ratably Secured Notes Obligations), as collateral security for such Grantors Obligations, enforceable in accordance with the terms hereof against all creditors of such Grantor and any Persons purporting to purchase any Collateral from such Grantor and (b) are prior to all other Liens on the Collateral in existence on the date hereof except for Liens not prohibited by the Credit Agreement."
"(e) Such Grantor is the record and beneficial owner of, and has good and marketable title to, the Pledged Securities pledged by it hereunder, free of any and all Liens or options in favor of, or claims of, any other Person, except the security interest created by this Agreement and any Liens not prohibited by Section 7.3 of the Credit Agreement."
"(a) Unless an Event of Default shall have occurred and be continuing and the Administrative Agent shall have given written notice to the relevant Grantor of the Administrative Agents intent to exercise its corresponding rights pursuant to Section 7.1(b), each Grantor shall be permitted to receive all cash dividends paid in respect of the Pledged Stock and all payments made in respect of the Pledged Notes, to the extent not prohibited by the Credit Agreement, and to exercise all voting and organizational rights with respect to the Pledged Securities; provided, however, that no vote shall be cast or right exercised or other action taken which, in the Administrative Agents reasonable judgment, would impair the Collateral or which would be inconsistent with or result in any violation of any provision of the Credit Agreement, this Agreement or any other Loan Document."
"(b) Each Grantor recognizes that the Administrative Agent may be unable to effect a public sale of any or all the Pledged Stock, by reason of certain prohibitions contained in the Securities Act and applicable state securities laws or otherwise, and may by reason of such prohibitions be compelled to resort to one or more private sales thereof to a restricted group of purchasers which will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof.Each Grantor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner.The Administrative Agent shall be under no obligation to delay a sale of any of the Pledged Stock for the period of time necessary to permit the Issuer thereof to register such securities for public sale under the Securities Act, or under applicable state securities laws, even if such Issuer would agree to do so."
"7.6. Deficiency. Each Grantor shall remain liable for any deficiency if the proceeds of any sale or other disposition of the Collateral are insufficient to pay its Obligations and the fees and disbursements of any attorneys employed by the Administrative Agent, any Secured Party or any holder of Equally and Ratably Secured Notes Obligations to collect such deficiency."
"7.7. Certain Matters Relating to Pledged Receivables. The Administrative Agent hereby authorizes each Grantor pledging Receivables hereunder to collect such Grantors Pledged Receivables, provided that the Administrative Agent may curtail or terminate said authority at any time after the occurrence and during the continuance of an Event of Default.At any time after the occurrence and during the continuance of an Event of Default, after written notice to such Grantor from the Administrative Agent, any payments of Pledged Receivables, when collected by any Grantor, (i) shall be forthwith (and, in any event, within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Administrative Agent if required, in a Collateral Account maintained under the sole dominion and control of the Administrative Agent, subject to withdrawal by the Administrative Agent for application as provided in Section 7.3, and (ii) until so turned over, shall be held by such Grantor in trust for the Administrative Agent, the Secured Parties and the holders of Equally and Ratably Secured Notes Obligations, segregated from other funds of such Grantor.Each such deposit of Proceeds of Pledged Receivables shall be accompanied by a report identifying in reasonable detail the nature and source of the payments included in the deposit."
"(ii) in the case of any Intellectual Property, execute and deliver, and have recorded, any and all agreements, instruments, documents and papers as the Administrative Agents security interest (for the benefit of the Secured Parties and the holders of Equally and Ratably Secured Notes Obligations) in such Intellectual Property and the goodwill and general intangibles of such Grantor relating thereto or represented thereby;"
"(c) The expenses of the Administrative Agent incurred in connection with actions undertaken as provided in this Section8.1, together with interest thereon at a rate per annum equal to the highest rate per annum at which interest would then be payable on any Class of past due ABR Loans under the Credit Agreement, from the date of payment by the Administrative Agent to the date reimbursed by the relevant Grantor, shall be payable by such Grantor to the Administrative Agent on demand."
"8.3. Financing Statements. Pursuant to any applicable law, each Grantor authorizes the Administrative Agent to file or record financing statements and other filing or recording documents or instruments with respect to the Collateral without the signature of such Grantor in such form and in such offices as the Administrative Agent determines appropriate to perfect the security interests of the Administrative Agent under this Agreement. A photographic or other reproduction of this Agreement shall be sufficient as a financing statement or other filing or recording document or instrument for filing or recording in any jurisdiction. The Borrower and each Guarantor authorizes the Administrative Agent to use the collateral description all personal property in any such financing statements."
"8.4. Authority of Administrative Agent.Each Grantor acknowledges that the rights and responsibilities of the Administrative Agent under this Agreement with respect to any action taken by the Administrative Agent or the exercise or non-exercise by the Administrative Agent of any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Agreement shall, as between the Administrative Agent and the Lenders, be governed by the Credit Agreement and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Administrative Agent and each Grantor, the Administrative Agent shall be conclusively presumed to be acting as agent for the Lenders with full and valid authority so to act or refrain from acting, and no Grantor shall be under any obligation, or entitlement, to make any inquiry respecting such authority."
"9.5. Successors and Assigns.This Agreement shall be binding upon the successors and assigns of each Grantor and Guarantor and shall inure to the benefit of the Administrative Agent and the Lenders and their successors and assigns; provided that no Grantor or Guarantor may assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of the Administrative Agent."
"(a) submits for itself and its property in any legal action or proceeding relating to this Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive general jurisdiction of the courts of the State of New York, the courts of the United States of America for the Southern District of New York, and appellate courts from any thereof;"
"(c) If any of the Collateral shall be sold, transferred or otherwise disposed of by any Grantor in a transaction not prohibited by the Credit Agreement or consented to in accordance with Section 10.1 of the Credit Agreement, then the Administrative Agent, at the request and sole expense of such Grantor, shall promptly execute and deliver to such Grantor all releases (which may be effected pursuant to a Release) or other documents reasonably necessary or desirable for the release of the Liens created hereby on such Collateral. At the request and sole expense of the Borrower, a Subsidiary Guarantor shall be released from its obligations hereunder in the event that all the Equity Interests of such Subsidiary Guarantor shall be sold, transferred or otherwise disposed of in a transaction not prohibited by the Credit Agreement."
"(100% Unless Stated Otherwise) | | | 53. |  | Charter Advanced Services (NH), LLC |  | Limited liability company |  | CCO Fiberlink, LLC | | | 54. |  | Charter Advanced Services (NV), LLC |  | Limited liability company |  | CC VII Fiberlink, LLC | | | 55. |  | Charter Advanced Services (NY), LLC |  | Limited liability company |  | CCO Fiberlink, LLC | | | 56. |  | Charter Advanced Services (OH), LLC |  | Limited liability company |  | CC Fiberlink, LLC | | | 57. |  | Charter Advanced Services (OR), LLC |  | Limited liability company |  | CC VII Fiberlink, LLC | | | 58. |  | Charter Advanced Services (PA), LLC |  | Limited liability company |  | CC Fiberlink, LLC | | | 59. |  | Charter Advanced Services (SC), LLC |  | Limited liability company |  | CCO Fiberlink, LLC | | | 60. |  | Charter Advanced Services (TN), LLC |  | Limited liability company |  | CC Fiberlink, LLC | | | 61. |  | Charter Advanced Services (TX), LLC |  | Limited liability company |  | CC Fiberlink, LLC | | | 62. |  | Charter Advanced Services (UT), LLC |  | Limited liability company |  | Bresnan Digital Services, LLC | | | 63. |  | Charter Advanced Services (VA), LLC |  | Limited liability company |  | CCO Fiberlink, LLC | | | 64. |  | Charter Advanced Services (VT), LLC |  | Limited liability company |  | CCO Fiberlink, LLC | | | 65. |  | Charter Advanced Services (WA), LLC |  | Limited liability company |  | CC VII Fiberlink, LLC "
"1% - Charter Leasing Holding Company, LLC | | | 118. |  | Charter RMG, LLC |  | Limited liability company |  | Charter Communications, LLC | | | 119. |  | Charter Stores FCN, LLC |  | Limited liability company |  | Falcon Cable Communications, LLC | | | 120. |  | Charter Video Electronics, LLC |  | Limited liability company |  | Midwest Cable Communications, LLC | | | 121. |  | Falcon Cable Communications, LLC |  | Limited liability company |  | Charter Communications VII, LLC | | | 122. |  | Falcon First Cable of the Southeast, LLC |  | Limited liability company |  | Falcon First, LLC | | | 123. |  | Falcon First, LLC |  | Limited liability company |  | Robin Media Group, LLC | | | 124. |  | Hometown T.V., LLC |  | Limited liability company |  | Midwest Cable Communications, LLC | | | 125. |  | HPI Acquisition Co. LLC |  | Limited liability company |  | "
"(100% Unless Stated Otherwise) | | | 129. |  | Marcus Cable of Alabama, L.L.C. |  | Limited liability company |  | Charter Cable Operating Company, LLC | | | 130. |  | Marcus Cable, LLC |  | Limited liability company |  | Robin Media Group, LLC | | | 131. |  | Midwest Cable Communications, LLC |  | Limited liability company |  | CCVIII Operating, LLC | | | 132. |  | Peachtree Cable TV, LLC |  | Limited liability company |  | Charter Communications, LLC | | | 133. |  | Phone Transfers (AL), LLC |  | Limited liability company |  | CC Fiberlink, LLC | | | 134. |  | Phone Transfers (CA), LLC |  | Limited liability company |  | CCO Fiberlink, LLC | | | 135. |  | Phone Transfers (GA), LLC |  | Limited liability company |  | CC Fiberlink, LLC | | | 136. |  | Phone Transfers (NC), LLC |  | Limited liability company |  | CCO Fiberlink, LLC | | | 137. |  | Phone Transfers (TN), LLC |  | Limited liability company |  | CC Fiberlink, LLC | | | 138. |  | Phone Transfers (VA), LLC |  | Limited liability company |  | CCO Fiberlink, LLC | | | 139. |  | Plattsburgh Cablevision, LLC |  | Limited liability company |  | Falcon First, LLC | | | 140. |  | Renaissance Media LLC |  | Limited liability company |  | Charter Communications, LLC | | | 141. |  | Rifkin Acquisition Partners, LLC |  | Limited liability company |  | Charter Communications Operating, LLC | | | 142. |  | Robin Media Group, LLC |  | Limited liability company |  | Charter Communications, LLC | | | 143. |  | Scottsboro TV Cable, LLC |  | Limited liability company |  | Falcon First Cable of the Southeast, LLC "
"(100% Unless Stated Otherwise) | | | 171. |  | National CableCommunications, LLC |  | Limited liability company |  | 16.67% by Time Warner Cable Media LLC | | | 172. |  | NaviSite LLC |  | Limited liability company |  | TWC NewCo LLC | | | 173. |  | New Wisconsin Procurement LLC |  | Limited liability company |  | "
0.10% by Time Warner Cable Internet Holdings LLC | | | 212. |  | Time Warner Cable Media LLC |  | Limited liability company |  | TWC NewCo LLC | | | 213. |  | Time Warner Cable Midwest LLC |  | Limited liability company |  | Time Warner Cable Enterprises LLC | | | 214. |  | Time Warner Cable New York City LLC |  | Limited liability company |  | Time Warner Cable Enterprises LLC | | | 215. |  | Time Warner Cable Northeast LLC |  | Limited liability company |  | Time Warner Cable Enterprises LLC | | | 216. |  | Time Warner Cable Pacific West LLC |  | Limited liability company |  | Time Warner Cable Enterprises LLC | | | 217. |  | Time Warner Cable Services LLC |  | Limited liability company |  | TWC Administration LLC | | | 218. |  | Time Warner Cable Southeast LLC |  | Limited liability company |  | Time Warner Cable Enterprises LLC | | | 219. |  | Time Warner Cable Sports LLC |  | Limited liability company |  | TWC NewCo LLC 
"Jurisdiction of Organization | | 108. |  | Charter Fiberlink OH-CCO, LLC |  | Delaware | | 109. |  | Charter Fiberlink OR-CCVII, LLC |  | Delaware | | 110. |  | Charter Fiberlink-Pennsylvania, LLC |  | Delaware | | 111. |  | Charter Fiberlink SC-CCO, LLC |  | Delaware | | 112. |  | Charter Fiberlink TX-CCO, LLC |  | Delaware | | 113. |  | Charter Fiberlink VA-CCO, LLC |  | Delaware | | 114. |  | Charter Fiberlink VT-CCO, LLC |  | Delaware | | 115. |  | Charter Fiberlink WA-CCVII, LLC |  | Delaware | | 116. |  | Charter Helicon, LLC |  | Delaware | | 117. |  | Charter Home Security, LLC |  | Delaware | | 118. |  | Charter Leasing Holding Company, LLC |  | Delaware | | 119. |  | Charter Leasing of Wisconsin, LLC |  | Delaware | | 120. |  | Charter RMG, LLC |  | Delaware | | 121. |  | Charter Stores FCN, LLC |  | Delaware | | 122. |  | Charter Video Electronics, LLC |  | Delaware | | 123. |  | Falcon Cable Communications, LLC |  | Delaware | | 124. |  | Falcon Cable Media, a California Limited Partnership |  | California | | 125. |  | Falcon Cable Systems Company II, L.P. |  | California | | 126. |  | Falcon Cablevision, a California Limited Partnership |  | California | | 127. |  | Falcon Community Cable, L.P. |  | Delaware | | 128. |  | Falcon Community Ventures I Limited Partnership |  | California | | 129. |  | Falcon First Cable of the Southeast, LLC |  | Delaware "
"JurisdictionofOrganization | | 246. |  | TWC SEE Holdco LLC |  | Delaware | | 247. |  | TWC Wireless LLC |  | Delaware | | 248. |  | TWC/Charter Dallas Cable Advertising, LLC |  | Delaware | | 249. |  | TWCIS Holdco LLC |  | Delaware | | 250. |  | Wisconsin Procurement Holdco LLC |  | Delaware | | 251. |  | BHN Home Security Services, LLC |  | Delaware | | 252. |  | BHN Spectrum Investments, LLC |  | Delaware | | 253. |  | Bright House Networks, LLC |  | Delaware | | 254. |  | Bright House Networks Information Services (Alabama), LLC |  | Delaware | | 255. |  | Bright House Networks Information Services (California), LLC |  | Delaware | | 256. |  | Bright House Networks Information Services (Florida), LLC |  | Delaware | | 257. |  | Bright House Networks Information Services (Indiana), LLC |  | Delaware | | 258. |  | Bright House Networks Information Services (Michigan), LLC |  | Delaware "
"Owner USA |  | Cloud based location shifting service |  | 13/399,666 |  | 2/17/2012 |  | 9,258,575 |  | 2/9/2016 |  | Charter Communications Operating, LLC | | | | | | USA |  | Fast binding of a cloud based streaming server structures |  | 13/399,677 |  | 2/17/2012 |  | N/A |  | N/A"
"Owner USA |  | System and method of analyzing cmts data streams33 |  | 62/291,454 |  | 2/4/2016 |  | N/A |  | N/A |  | Charter Communications Operating, LLC | | | | | | USA |  | System and method of content streaming and downloading34 |  | 15/008,438 |  | |  | N/A |  | N/A |  | Charter Communications Operating, LLC "
Assignee 1. |  | TWC 12-31 |  | Issued |  | Notification In A Network Environment |  | 9154854 |  | 10/6/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 2. |  | TWC 12-29 |  | Issued |  | Remote Control Including Touch-Sensing Surface |  | 9024894 |  | 5/5/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 3. |  | TWC 12-28 |  | Issued |  | Methods And Apparatus That Facilitate Controlling Multiple Devices |  | 9118952 |  | 8/25/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 4. |  | TWC 12-26 |  | Issued |  | Wireless Mesh Network Configuration |  | 9258843 |  | 2/9/2016 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 5. |  | TWC 12-24 |  | Issued |  | Methods And Apparatus For Supporting Trick Play Functions In Devices Without Local Storage |  | 8935735 |  | 1/13/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 6. |  | TWC 12-15 |  | Issued |  | Lightweight Polling Technique |  | 8972558 |  | 3/3/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 7. |  | TWC 12-14 |  | Issued |  | Media Synchronization Within Home Network Using Set-Top Box As Gateway |  | 8832750 |  | 9/9/2014 |  | USA |  | Time Warner Cable Enterprises LLC 
Assignee 32. |  | TWC 10-17 |  | Issued |  | Apparatus And Method For Enforcing Content Protection Rules During Data Transfer Between Devices |  | 9015270 |  | 4/21/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 33. |  | TWC 10-16 |  | Issued |  | Methods And Apparatus For Providing Indivial Service Subscribers Content Related Services At One Or More Locations |  | 8924999 |  | 12/30/2014 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 34. |  | TWC 10-12A C1 |  | Issued |  | System And Method For WI-FI Roaming |  | 9241367 |  | 1/19/2016 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 35. |  | TWC 10-12B C1 |  | Issued |  | System And Method For Maintaining A Communication Session |  | 8885571 |  | 11/11/2014 |  | USA |  | Time Warner Cable Enterprises LLC. | | | | | | | 36. |  | TWC 10-12B |  | Issued |  | System And Method For Maintaining A Communication Session |  | 8638717 |  | 1/28/2014 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 37. |  | TWC 10-12A |  | Issued |  | System And Method For WI-FI Roaming |  | 8553662 |  | 10/8/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 38. |  | TWC 10-10 |  | Issued |  | Quality Feedback Mechanism For Bandwidth Allocation In A Switched Digital Video System |  | 8813144 |  | 8/19/2014 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 39. |  | TWC 10-07 |  | Issued |  | System And Method For Determining Network Relationships With Unreliable Data |  | 8607293 |  | 12/10/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 40. |  | TWC 10-06 |  | Issued |  | System And Method For Coordinated Discovery Of The Status Of Network Routes By Hosts In A Network |  | 8681645 |  | 3/25/2014 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 41. |  | TWC 10-05C1 |  | Issued |  | Multicast Video Advertisement Insertion Using Routing Protocols |  | 9124928 |  | 9/1/2015 |  | USA |  | Time Warner Cable Enterprises LLC. | | | | | | | 42. |  | TWC 10-05 |  | Issued |  | Multicast Video Advertisement Insertion Using Routing Protocols |  | 8910198 |  | 12/9/2014 |  | USA |  | Time Warner Cable Enterprises LLC 
Assignee 96. |  | TWC 07-05 |  | Issued |  | Methods And Apparatus For Implementing Guides And Using Recording Information In Determine Program To Communications Channel Mappings |  | 8910222 |  | 12/9/2014 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 97. |  | TWC 07-04D1 |  | Issued |  | Personal Content Server Apparatus And Methods |  | 8938763 |  | 1/20/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 98. |  | TWC 07-04 |  | Issued |  | Personal Content Server Apparatus And Methods |  | 8181206 |  | 5/15/2012 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 99. |  | TWC 07-03C1 |  | Issued |  | Methods And Apparatus For Connecting A Cable Network To Other Network And/Or Devices |  | 9137584 |  | 9/15/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 100. |  | TWC 07-03 |  | Issued |  | Methods And Apparatus For Connecting A Cable Network To Other Network And/Or Devices |  | 8553882 |  | 10/8/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 101. |  | TWC-IBM-07-03 |  | Issued |  | Method And Apparatus For Deleting A Portion Of A Video Or Audio File From Data Storage Prior To Completion Of Broadcast Or Presentation |  | 6016507 |  | 1/18/2000 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 102. |  | TWC 07-02 (2) |  | Issued |  | Methods And Apparatus For Using Tuners Efficiently For Delivering One Or More Programs |  | 8649385 |  | 2/11/2014 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 103. |  | TWC-IBM-07-02 |  | Issued |  | Method For Relating Indexing Information Associated With At Least Two Indexing Schemes To Facilitate The Play-Back Of User-Specified Digital Video And A Video Client Incorporating The Same |  | 5953073 |  | 9/14/1999 |  | USA |  | Time Warner Cable Enterprises LLC 
Assignee 104. |  | TWC 07-01C1 |  | Issued |  | Methods And Apparatus For Upgrading Set Top Box Devices Without The Loss Of Stored Content |  | 9326028 |  | 4/26/2016 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 105. |  | TWC 07-01 |  | Issued |  | Methods And Apparatus For Upgrading Set Top Box Devices Without The Loss Of Stored Content |  | 8745685 |  | 6/3/2014 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 106. |  | TWC 06-30 |  | Issued |  | Methods And Apparatus For Predictive Delivery Of Content Over A Network |  | 9060208 |  | 6/16/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 107. |  | TWC 06-29 |  | Issued |  | Prevention Of Trick Modes During Digital Video Recorder (DVR) And Network Digital Video Recorder (NDVR) |  | 8180200 |  | 5/15/2012 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 108. |  | TWC 06-28 |  | Issued |  | Transport Stream Encapsulated Trick Modes |  | 7941823 |  | 5/10/2011 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 109. |  | TWC 06-25C3 |  | Issued |  | Premises Gateway Apparatus And Methods For Use In A Content-Based Network |  | 9282365 |  | 3/8/2016 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 110. |  | TWC 06-25C2 |  | Issued |  | Premises Gateway Apparatus And Methods For Use In A Content-Based Network |  | 8949919 |  | 2/3/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 111. |  | TWC 06-25C1 |  | Issued |  | Premises Gateway Apparatus And Methods For Use In A Content-Based Network |  | 8438607 |  | 5/7/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 112. |  | TWC 06-25 |  | Issued |  | Premises Gateway Apparatus And Methods For Use In A Content-Based Network. |  | 7954131 |  | 5/31/2011 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 113. |  | TWC 06-23C |  | Issued |  | System And Method For Communication Over An Adaptive Service Bus |  | 8139569 |  | 3/20/2012 |  | USA |  | Time Warner Cable Enterprises LLC 
Assignee 126. |  | TWC 06-13 |  | Issued |  | Methods And Apparatus For Centralized Content And Data Delivery |  | 8347341 |  | 1/1/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 127. |  | TWC 13-06 |  | Issued |  | Apparatus And Method For Reducing Power Consumption In Customer Premises Equipment |  | 9247500 |  | 1/26/16 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 128. |  | TWC 06-12 |  | Issued |  | Methods And Apparatus For Premises Content Distribution |  | 8732854 |  | 5/20/2014 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 129. |  | TWC 06-09 |  | Issued |  | Parental Control For Fixed Mobile Convergance |  | 7970388 |  | 6/28/2011 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 130. |  | TWC 06-08D1 |  | Issued |  | Downloadable Security And Protection Methods And Apparatus |  | 9313458 |  | 4/12/2016 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 131. |  | TWC 06-08 |  | Issued |  | Downloadable Security And Protection Methods And Apparatus |  | 8520850 |  | 8/27/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 132. |  | TWC 06-07 C2D1 |  | Issued |  | Personal Content Server Apparatus And Methods |  | 9325710 |  | 4/26/2016 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 133. |  | TWC 06-07 C2 |  | Issued |  | Personal Content Server Apparatus And Methods |  | 8438243 |  | 5/7/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 134. |  | TWC 06-07C3 |  | Issued |  | Personal Content Server Apparatus And Methods |  | 8341246 |  | 12/25/2012 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 135. |  | TWC 06-07 |  | Issued |  | Personal Content Server Apparatus And Methods |  | 8280982 |  | 10/2/2012 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 136. |  | TWC 06-07 C1 |  | Issued |  | Personal Content Server Apparatus And Methods |  | 8078696 |  | 12/13/2011 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 137. |  | TWC 06-06 |  | Issued |  | Methods And Apparatus For Analyzing Software Interface Usage |  | 8370818 |  | 2/5/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 138. |  | TWC 06-04 C1 |  | Issued |  | A System & Method For Establishing And Enforcing Service Rules In A Service Provider Network |  | 8271034 |  | 9/18/2012 |  | USA |  | Time Warner Cable Enterprises LLC 
Assignee 139. |  | TWC 06-04 |  | Issued |  | A System & Method For Establishing And Enforcing Service Rules In A Service Provider Network |  | 7965703 |  | 6/21/2011 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 140. |  | TWC 06-03C1 |  | Issued |  | System And Method For Targeted Advertisement Delivery |  | 8959563 |  | 2/17/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 141. |  | TWC 06-03 |  | Issued |  | System And Method For Targeted Advertisement Delivery |  | 8549558 |  | 10/1/2013 |  | USA |  | Time Warner Cable Enterprises LLC. 36 | | | | | | | 142. |  | TWC 06-03A |  | Issued |  | Methods And Apparatus For Revenue-Optimized Delivery Of Content In A Network |  | 8099757 |  | 1/17/2012 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 143. |  | TWC 05-31C1 |  | Issued |  | Methods And Apparatus For Providing Video On Demand And Network PVR Functions Using IP Streaming |  | 8713620 |  | 4/29/2014 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 144. |  | TWC 05-31 |  | Issued |  | Methods And Apparatus For Providing Video On Demand And Network PVR Functions Using IP Streaming |  | 8181209 |  | 5/15/2012 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 145. |  | TWC 05-30C2 |  | Issued |  | Emergency Alert Data Delivery Apparatus And Methods |  | 8461984 |  | 6/11/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 146. |  | TWC 05-30 C1 |  | Issued |  | Emergency Alert Data Delivery Apparatus And Methods |  | 8026806 |  | 9/27/2011 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 147. |  | TWC 05-30 |  | Issued |  | Emergency Alert Data Delivery Apparatus And Methods |  | 7592912 |  | 9/22/2009 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 148. |  | TWC 05-29 |  | Issued |  | Caption Data Delivery Apparatus And Methods |  | 8566887 |  | 10/22/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 149. |  | TWC 05-28 C |  | Issued |  | System And Method For Determining Whether Docsis-Enabled Devices In HFC Cable Network Are Co-Located |  | 7839794 |  | 11/23/2010 |  | USA |  | Time Warner Cable Enterprises LLC 
Assignee 150. |  | TWC 05-28 |  | Issued |  | System And Method For Determining Whether Docsis-Enabled Devices In HFC Cable Network Are Co-Located |  | 7539145 |  | 5/26/2009 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 151. |  | TWC 05-27 |  | Issued |  | Method And Apparatus For Context-Specific Content Delivery |  | 9286388 |  | 3/15/2016 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 152. |  | TWC 05-25 |  | Issued |  | Vod Transaction Error Correlator |  | 7509669 |  | 3/24/2009 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 153. |  | TWC 05-25 CIP |  | Issued |  | Vod Transaction Error Correlator |  | 7506354 |  | 3/17/2009 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 154. |  | TWC 05-24 C |  | Issued |  | System And Method For Assigning And Verifying CPE Service Calls In A Cable Network |  | 8161517 |  | 4/17/2012 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 155. |  | TWC 05-24 |  | Issued |  | System And Method For Assigning And Verifying CPE Service Calls In A Cable Network |  | 7596800 |  | 9/29/2009 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 156. |  | TWC 05-23 |  | Issued |  | Cable Modem Analysis System And Method Therefor For An HFC Cable Network |  | 7599300 |  | 10/6/2009 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 157. |  | TWC 05-22 C1 |  | Issued |  | Remote Dvr Manager |  | 8621523 |  | 12/31/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 158. |  | TWC 05-22 |  | Issued |  | Remote Dvr Manager |  | 7716705 |  | 5/11/2010 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 159. |  | TWC 05-21 |  | Issued |  | System And Method For Evaluating The Operational Status Of A STB In A Cable Network |  | 7810127 |  | 10/5/2010 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 160. |  | TWC 05-20 |  | Issued |  | Power Supply Winch System |  | 7226040 |  | 6/5/2007 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 161. |  | TWC 05-19 C1 |  | Issued |  | Apparatus And Methods For Utilizing Variable Rate Program Streams In A Network |  | 8559465 |  | 10/15/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 162. |  | TWC 05-19 |  | Issued |  | Apparatus And Methods For Utilizing Variable Rate Program Streams In A Network |  | 7889765 |  | 2/15/11 |  | USA |  | Time Warner Cable Enterprises LLC 
Assignee 249. |  | IPV 03-07 Con |  | Issued |  | Technique For Effectively Accessing Programming Listing Information In An Entertainment Delivery System |  | 9071795 |  | 6/30/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 250. |  | TWC 03-07 |  | Issued |  | System And Method For Managing Provisioning Parameters In A Cable Network |  | 7376718 |  | 5/20/2008 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 251. |  | IPV 03-07 |  | Issued |  | Technique For Effectively Accessing Programming Listing Information In An Entertainment Delivery System |  | 7174126 |  | 2/6/2007 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 252. |  | TWC 03-06 C |  | Issued |  | Technique For Communicating Information Over A Broadband Communications Network |  | 8175082 |  | 5/8/2012 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 253. |  | TWC 03-06 |  | Issued |  | Technique For Communicating Information Over A Broadband Communications Network |  | 7447780 |  | 11/4/2008 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 254. |  | IPV 03-05C1 |  | Issued |  | Methods And Systems For Determining Audio Loudness Levels In Programming |  | 8379880 |  | 2/19/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 255. |  | IPV 03-05 |  | Issued |  | Methods And Systems For Determining Audio Loudness Levels In Programming |  | 7398207 |  | 7/8/2008 |  | USA |  | Time Warner Cable Enterprises LLC.40 | | | | | | | 256. |  | TWC 03-05 |  | Issued |  | Thwarting Denial Of Service Attacks Originating In A Docsis-Compliant Cable Network |  | 7372809 |  | 5/13/2008 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 257. |  | IPV 03-03 |  | Issued |  | Programming Content Processing And Management System And Method |  | 8392952 |  | 3/5/2013 |  | USA |  | Time Warner Cable Enterprises LLC 
Assignee 364. |  | TWC 10-41 |  | Issued |  | Gateway Apparatus And Methods For Providing Content And Data Delivery In A Fiber-Based Content Delivery Network |  | 8863201 |  | 10/14/2014 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 365. |  | TWC 09-41 |  | Issued |  | System And Method For Mitigating A Denial Of Service Attack In A Subscriber Network |  | 8276203 |  | 9/25/2012 |  | USA |  | Time Warner Cable Enterprises LLC.42 | | | | | | | 366. |  | TWC 09-40 |  | Issued |  | System And Method For Presenting During A Programming Event An Invitation To Follow Content On A Social Media Site |  | 9185454 |  | 11/10/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 367. |  | TWC 07-40C |  | Issued |  | Methods And Apparatus For Centralized And Decentralized Emergency Alert Messaging |  | 9262907 |  | 2/16/2016 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 368. |  | TWC 07-40 |  | Issued |  | Centralized And Decentralized Emergency Alert Messaging |  | 8095610 |  | 1/10/2012 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 369. |  | TWC 12-39 |  | Issued |  | Generation Of Phone Number Lists And Call Filtering |  | 9014359 |  | 4/21/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 370. |  | TWC 10-39 |  | Issued |  | Emergency Alert System Methods And Apparatus |  | 8863172 |  | 10/14/2014 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 371. |  | TWC 09-39 |  | Issued |  | Methods And Apparatus For Supporting Electronic Requests For Information And Promotions On Multiple Device Platforms In An Integrated Manner |  | 8538835 |  | 9/17/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 372. |  | TWC 07-39C1 |  | Issued |  | Methods And Apparatus For Bandwidth Recovery In A Network |  | 9161065 |  | 10/13/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 373. |  | TWC 07-39 |  | Issued |  | Methods And Apparatus For Bandwidth Recovery In A Network |  | 8281352 |  | 10/2/2012 |  | USA |  | Time Warner Cable Enterprises LLC 
Assignee 374. |  | TWC 11-38C1 |  | Issued |  | Resource Installation Management In A Wireless Network |  | 9008670 |  | 4/14/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 375. |  | TWC 11-38 |  | Issued |  | Resource Installation Management In A Wireless Network |  | 8929931 |  | 1/6/2015 |  | USA |  | Time Warner Cable Enterprises LLC 376. |  | TWC 11-37 |  | Issued |  | Methods And Systems For Managing A Virtual Data Center With Embedded Roles Based Access Control |  | 8806486 |  | 8/12/2014 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 377. |  | TWC 08-37C1 |  | Issued |  | Media Bridge Apparatus And Methods |  | 9300919 |  | 3/29/2016 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 378. |  | TWC 05-37 |  | Issued |  | Methods And Apparatus For Selecting Digital Interface Technology For Programming And Data Delivery |  | 8718100 |  | 5/6/2014 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 379. |  | TWC 11-36C1 |  | Issued |  | System And Method For Cloning A Wi-Fi Access Point |  | 9066236 |  | 6/23/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 380. |  | TWC 11-36 |  | Issued |  | System And Method For Cloning A Wi-Fi Access Point |  | 8555364 |  | 10/8/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 381. |  | TWC 09-36 |  | Issued |  | Apparatus And Methods For Rights-Managed Content And Data Delivery |  | 9342663 |  | 5/17/2016 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 382. |  | TWC 07-36 |  | Issued |  | Method And Apparatus For User-Based Targeted Content Delivery |  | 9071859 |  | 6/30/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 383. |  | TWC 06-36 |  | Issued |  | Methods And Apparatus Supporting The Recording Of Multiple Simultaneously Broadcast Programs Communicated Using The Same Communications Channel |  | 8732734 |  | 5/20/2014 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 384. |  | TWC 05-36 C1 |  | Issued |  | Methods And Apparatus For Selecting Digital Coding/Decoding Technology For Programming And Data Delivery |  | 8804767 |  | 8/12/2014 |  | USA |  | Time Warner Cable Enterprises LLC 
Assignee 395. |  | TWC 06-34 D1 |  | Issued |  | Methods And Apparatus For Format Selection For Network Optimization |  | 7802286 |  | 9/21/2010 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 396. |  | TWC 06-34 |  | Issued |  | Methods And Apparatus For Format Selection For Network Optimization |  | 7770200 |  | 8/3/2010 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 397. |  | TWC 09-33 |  | Issued |  | Zone Control Methods And Apparatus |  | 8701138 |  | 4/15/2014 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 398. |  | TWC 08-33 |  | Issued |  | Scheduling Trigger Apparatus And Method |  | 9060100 |  | 6/16/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 399. |  | TWC 06-33 |  | Issued |  | Generation Distribution And Use Of Content Metadata In A Network |  | 8625607 |  | 1/7/2014 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 400. |  | TWC 05-33C1 |  | Issued |  | Methods And Apparatus For Efficient Ip Multicasting In A Content Delivery Network |  | 8594116 |  | 11/26/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 401. |  | TWC 05-33 |  | Issued |  | Methods And Apparatus For Efficient IP Multicasting In A Content-Based Network |  | 7693171 |  | 4/6/2010 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 402. |  | TWC 11-32 |  | Issued |  | System For Reducing Energy Consumption OfA Device And A Method Therefor |  | 9026826 |  | 5/5/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 403. |  | TWC 10-32 |  | Issued |  | Methods And Apparatus For Customizing Video Services Provided To Customers In Hotels |  | 9106940 |  | 8/11/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 404. |  | TWC 06-32 |  | Issued |  | Methods And Apparatus For Content Delivery Notification And Management |  | 9270944 |  | 2/23/2016 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 405. |  | TWC 04-32 |  | Issued |  | Dial Plan Generator |  | 7734030 |  | 6/8/2010 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | | 406. |  | TWC 13-15 |  | Issued |  | Systems And Methods Of Notifying A Patient To Take Medication |  | 9280888 |  | 3/8/2016 |  | USA |  | Time Warner Cable Enterprises LLC 
Assignee 517. |  | TWC 11-49C2 |  | Pending |  | 14/804123 |  | 7/20/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 518. |  | TWC 04-10D1 |  | Pending |  | 14/802494 |  | 7/17/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 519. |  | TWC 14-38 |  | Pending |  | 14/797094 |  | 7/11/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 520. |  | TWC 07-41C1 |  | Pending |  | 14/791760 |  | 7/6/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 521. |  | TWC 03-17D1C1 |  | Pending |  | 14/790456 |  | 7/2/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 522. |  | TWC 11-71C1 |  | Pending |  | 14/789671 |  | 7/1/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 523. |  | TWC 07-36D1 |  | Pending |  | 14/754226 |  | 6/29/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 524. |  | TWC 15-07 |  | Pending |  | 14/749449 |  | 6/24/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 525. |  | TWC 12-52C1 |  | Pending |  | 14/746266 |  | 6/22/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 526. |  | TWC 06-30C1 |  | Pending |  | 14/739844 |  | 6/15/15 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 527. |  | TWC 14-62 |  | Pending |  | 14/733694 |  | 6/8/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 528. |  | TWC 13-17D1 |  | Pending |  | 14/731987 |  | 6/5/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 529. |  | TWC 05-35C1D1 |  | Pending |  | 14/727649 |  | 6/1/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 530. |  | IPV 03-07C2 |  | Pending |  | 14/726559 |  | 5/31/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 531. |  | TWC 15-08 |  | Pending |  | 14/722146 |  | 5/26/2015 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 532. |  | TWC 07-22C1 |  | Pending |  | 14/717530 |  | 5/20/15 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 533. |  | TWC 14-67 |  | Pending |  | 14/698487 |  | 4/28/2015 |  | USA |  | Time Warner Cable Enterprises LLC 
Assignee 636. |  | TWC 13-30 |  | Pending |  | 14/133495 |  | 12/18/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 637. |  | TWC 13-49 |  | Pending |  | 14/107459 |  | 12/16/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 638. |  | TWC 13-38 |  | Pending |  | 14/098511 |  | 12/5/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 639. |  | TWC 13-46 |  | Pending |  | 14/092641 |  | 11/27/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 640. |  | TWC 05-33C2 |  | Pending |  | 14/088099 |  | 11/22/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 641. |  | TWC 13-21 |  | Pending |  | 14/083542 |  | 11/19/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 642. |  | TWC 13-45 |  | Pending |  | 14/078798 |  | 11/13/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 643. |  | TWC 10-67C1 |  | Pending |  | 14/075835 |  | 11/8/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 644. |  | TWC 13-33 |  | Pending |  | 14/069825 |  | 11/1/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 645. |  | TWC 13-36 |  | Pending |  | 14/061008 |  | 10/23/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 646. |  | TWC 13-32 |  | Pending |  | 14/060358 |  | 10/22/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 647. |  | TWC 13-42 |  | Pending |  | 14/059273 |  | 10/21/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 648. |  | TWC 05-29D1 |  | Pending |  | 14/059247 |  | 10/21/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 649. |  | TWC 13-39D |  | Pending |  | 14/058980 |  | 10/21/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 650. |  | TWC 13-39C |  | Pending |  | 14/058947 |  | |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 651. |  | TWC 13-39B |  | Pending |  | 14/058934 |  | 10/21/2013 |  | USA |  | Time Warner Cable Enterprises LLC | | | | | | 652. |  | TWC 13-39A |  | Pending |  | 14/058895 |  | 10/21/2013 |  | USA |  | Time Warner Cable Enterprises LLC 
OWNER | | | | | | | United States of America |  | BLUECIRCLE |  | Registered |  | 77838832 |  | 3826419 |  | Oct-1-2009 |  | Jul-27-2010 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | BUSINESSLINK.TV |  | Registered |  | 77047017 |  | 4056540 |  | Nov-17-2006 |  | Nov-15-2011 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | CABLE WIFI |  | Registered |  | 85488966 |  | 4329583 |  | Dec-7-2011 |  | Apr-30-2013 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | CAPE FEAR NOW! |  | Registered |  | 77524356 |  | 3691218 |  | Jul-17-2008 |  | Oct-6-2009 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | CARTXPRESS |  | Registered |  | 76575404 |  | 2960659 |  | Feb-13-2004 |  | Jun-7-2005 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | CELEBRATE KENTUCKY |  | Registered |  | 85742272 |  | 4328392 |  | Sep-30-2012 |  | Apr-30-2013 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | CLICKEDIN |  | Registered |  | 85383225 |  | 4163641 |  | Jul-28-2011 |  | Jun-26-2012 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | COLO 2.0 |  | Registered |  | 85122053 |  | 4106957 |  | Sep-2-2010 |  | Feb-28-2012 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | CONNECT A MILLION MINDS |  | Registered |  | 77709575 |  | 3804431 |  | Apr-8-2009 |  | Jun-15-2010 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | CONTENT FOR YOU |  | Registered |  | 77322242 |  | 3750281 |  | Nov-6-2007 |  | Feb-16-2010 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | CONTENTXPRESS |  | Registered |  | 76575403 |  | 2960658 |  | Feb-13-2004 |  | Jun-7-2005 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | CRACKING THE CODES IN THE DIGITAL WORLD |  | Registered |  | 77958172 |  | 3847867 |  | Mar-12-2010 |  | Sep-14-2010 | | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | CRACKING THE CODES IN THE WIRELESS WORLD |  | Registered |  | 77958145 |  | 3975541 |  | Mar-12-2010 |  | Jun-7-2011 | | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | CRYSTAL COAST NOW! |  | Registered |  | 77524355 |  | 3691217 |  | Jul-17-2008 |  | Oct-6-2009 |  | Time Warner Cable Enterprises LLC 
"OWNER | | | | | | | United States of America |  | GREAT MOMENTS LIVE FOREVER. GREAT MOMENTS LIVE HERE. |  | Registered |  | 86259453 |  | 4680049 |  | Apr-22-2014 |  | Jan-27-2015 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | HAWAIIAN TIME JUST GOT FASTER |  | Registered |  | 85082235 |  | 3949372 |  | Jul-12-2010 |  | Apr-19-2011 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | HIGH SCHOOL SPORTS REWIND |  | Registered |  | 85123598 |  | 3965238 |  | Sep-6-2010 |  | May-24-2011 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | HOME OF FREE HD |  | Registered51 |  | 77322437 |  | 3715895 |  | Nov-6-2007 |  | Nov-24-2009 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | IN THE PAPERS |  | Registered |  | 86640606 |  | 4880630 |  | May-26-2015 |  | Jan-5-2016 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | INSIDE CITY HALL |  | Registered |  | 74473052 |  | 1870062 |  | Dec-27-1993 |  | Dec-27-1994 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | INSIGHT |  | Registered |  | 77937849 |  | 4577914 |  | Feb-17-2010 |  | Aug-5-2014 |  | Insight Communications Company, Inc. | | | | | | | United States of America |  | ![LOGO](g198771stamp429a.jpg) |  | Registered52 |  | 76525915 |  | 3715566 |  | Jun-25, 2003 |  | Nov-24-2009 |  | Insight Communications Company, Inc. | | | | | | | United States of America |  | INSIGHT BUSINESS |  | Registered |  | 78766571 |  | 3520649 |  | Dec-5-2005 |  | Oct-21-2008 |  | Insight Communications Company, Inc. | | | | | | | United States of America |  | INSIGHT BROADBAND |  | Registered |  | 77033478 |  | 3694525 |  | Oct-31-2006 |  | Oct-13-2009 |  | Insight Communications Company, Inc. | | | | | | | United States of America |  | ![LOGO](g198771stamp429b.jpg) |  | Registered |  | 73726578 |  | 1520156 |  | May-5-1988 |  | Jan-10-1989 |  | Insight Communications Company, Inc. | | | | | | | United States of America |  | ![LOGO](g198771stamp429c.jpg) |  | Registered |  | 75613456 |  | 2321115 |  | Dec-30-1998 |  | Feb-22-2000 |  | Insight Communications Company, Inc. "
"OWNER | | | | | | | United States of America |  | LIFE IN THE 4G FAST LANE |  | Registered |  | 77932197 |  | 3847638 |  | Feb-10-2010 |  | Sep-14-2010 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | LO MEJOR ON DEMAND |  | Registered |  | 85039995 |  | 3979734 |  | May-17-2010 |  | Jun-14-2011 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | LOOK BACK |  | Registered |  | 77207321 |  | 3683628 |  | Jun-15-2007 |  | Sep-15-2009 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | ![LOGO](g198771stamp431a.jpg) |  | Registered |  | 85149156 |  | 4158493 |  | Oct-10-2010 |  | Jun-12-2012 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | MI CULTURA |  | Registered |  | 85/265,565 | | 4041469 |  | Mar-13-2011 |  | Oct-18-2011 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | ![LOGO](g198771stamp431b.jpg) |  | Registered |  | 77580302 |  | 3664965 |  | Sep-26-2008 |  | Aug-4-2009 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | MOVIE TRAILERS ON DEMAND |  | Registered |  | 78864852 |  | 3203177 |  | Apr-19-2006 |  | Jan-23-2007 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | MULTIROOM ON DEMAND |  | Registered |  | 77934692 |  | 4061653 |  | Feb-12-2010 |  | Nov-22-2011 |  | Insight Communications Company, Inc. | | | | | | | United States of America |  | MY INSIGHT |  | Registered |  | 78981382 |  | 3819833 |  | Nov-11-2005 |  | Jul-13-2010 |  | Insight Communications Company, Inc. | | | | | | | United States of America |  | MY ISLAND PHONE |  | Registered |  | 77524351 |  | 3671778 |  | Jul-17-2008 |  | Aug-25-2009 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | MY MOVE |  | Registered |  | 85413146 |  | 4227331 |  | Sep-1-2011 |  | Oct-16-2012 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | MY ON DEMAND |  | Registered |  | 78722118 | | 3707006 |  | Sep-28-2005 |  | Nov-3-2009 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | NAVICLOUD |  | Registered |  | 77822384 |  | 3833961 |  | Sep-9-2009 |  | Aug-17-2010 |  | NaviSite, Inc. "
OWNER | | | | | | | United States of America |  | NY1 NOTICIAS |  | Registered |  | 78271673 | | 2969879 |  | Jul-8-2003 |  | Jul-19-2005 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | OC 16 |  | Registered |  | 78347436 |  | 2997111 |  | Jan-2-2004 |  | Sep-20-2005 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | ![LOGO](g198771stamp433a.jpg) |  | Registered |  | 86639743 |  | 4880596 |  | May-22-2015 |  | Jan-5-2016 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | ![LOGO](g198771stamp433b.jpg) |  | Registered |  | 86639863 |  | 4880601 |  | May-22-2015 |  | Jan-5-2016 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | ![LOGO](g198771stamp433c.jpg) |  | Registered |  | 86639854 |  | 4880600 |  | May-22-2015 |  | Jan-5-2016 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | ![LOGO](g198771stamp433d.jpg) |  | Registered |  | 78347441 |  | 3075574 |  | Jan-2-2004 |  | Apr-4-2006 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | OCEANIC SECURITY |  | Registered |  | 85097948 |  | 4003821 |  | Aug-2-2010 |  | Jul-26-2011 |  | Time Warner Cable Enterprises LLC | | | | | | | United States of America |  | ![LOGO](g198771stamp433e.jpg) |  | Registered |  | 86260132 |  | 4641267 |  | Apr-23-2014 |  | Nov-18-2014 |  | Time Warner Cable Enterprises LLC 
"1. | American Cable Entertainment Company, LLC ---|--- 2. | Athens Cablevision, LLC ---|--- 3. | Ausable Cable TV, LLC ---|--- 4. | Bresnan Broadband Holdings, LLC ---|--- 5. | Bresnan Broadband of Colorado, LLC ---|--- 6. | Bresnan Broadband of Montana, LLC ---|--- 7. | Bresnan Broadband of Utah, LLC ---|--- 8. | Bresnan Broadband of Wyoming, LLC ---|--- 9. | Bresnan Communications, LLC ---|--- 10. | Bresnan Digital Services, LLC ---|--- 11. | Bresnan Microwave of Montana, LLC ---|--- 12. | Cable Equities Colorado, LLC ---|--- 13. | Cable Equities of Colorado Management LLC ---|--- 14. | CC 10, LLC ---|--- 15. | CC Fiberlink, LLC ---|--- 16. | CC Michigan, LLC ---|--- 17. | CC Systems, LLC ---|--- 18. | CC V Holdings, LLC ---|--- 19. | CC VI Fiberlink, LLC ---|--- 20. | CC VI Operating Company, LLC ---|--- 21. | CC VII Fiberlink, LLC ---|--- 22. | CC VIII Fiberlink, LLC ---|--- 23. | CC VIII Holdings, LLC ---|--- 24. | CC VIII Operating, LLC ---|--- 25. | CC VIII, LLC ---|--- 26. | CCO Fiberlink, LLC ---|--- 27. | CCO Holdco Transfers VII, LLC ---|--- 28. | CCO LP, LLC ---|--- 29. | CCO NR Holdings, LLC ---|--- 30. | CCO Purchasing, LLC ---|--- 31. | CCO SoCal I, LLC ---|--- 32. | CCO SoCal II, LLC ---|--- 33. | CCO SoCal Vehicles, LLC ---|--- 34. | CCO Transfers, LLC ---|--- 35. | Charter Advanced Services (AL), LLC ---|--- 36. | Charter Advanced Services (CA), LLC ---|--- 37. | Charter Advanced Services (CO), LLC ---|--- 38. | Charter Advanced Services (CT), LLC ---|--- 39. | Charter Advanced Services (GA), LLC ---|--- 40. | Charter Advanced Services (IL), LLC ---|--- 41. | Charter Advanced Services (IN), LLC ---|--- 42. | Charter Advanced Services (KY), LLC ---|--- * * *"
"227. | Time Warner Cable Media LLC ---|--- 228. | Time Warner Cable Midwest LLC ---|--- 229. | Time Warner Cable New York City LLC ---|--- 230. | Time Warner Cable Northeast LLC ---|--- 231. | Time Warner Cable Pacific West LLC ---|--- 232. | Time Warner Cable Services LLC ---|--- 233. | Time Warner Cable Southeast LLC ---|--- 234. | Time Warner Cable Sports LLC ---|--- 235. | Time Warner Cable Texas LLC ---|--- 236. | TWC Administration LLC ---|--- 237. | TWC Communications, LLC ---|--- 238. | TWC Digital Phone LLC ---|--- 239. | TWC Media Blocker LLC ---|--- 240. | TWC NewCo LLC ---|--- 241. | TWC News and Local Programming Holdco LLC ---|--- 242. | TWC News and Local Programming LLC ---|--- 243. | TWC Regional Sports Network I LLC ---|--- 244. | TWC Security LLC ---|--- 245. | TWC SEE Holdco LLC ---|--- 246. | TWC Wireless LLC ---|--- 247. | TWC/Charter Dallas Cable Advertising, LLC ---|--- 248. | TWCIS Holdco LLC ---|--- 249. | Wisconsin Procurement Holdco LLC ---|--- 250. | BHN Home Security Services, LLC ---|--- 251. | BHN Spectrum Investments, LLC ---|--- 252. | Bright House Networks, LLC ---|--- 253. | Bright House Networks Information Services (Alabama), LLC ---|--- 254. | Bright House Networks Information Services (California), LLC ---|--- 255. | Bright House Networks Information Services (Florida), LLC ---|--- 256. | Bright House Networks Information Services (Indiana), LLC ---|--- 257. | Bright House Networks Information Services (Michigan), LLC ---|--- "
"Applicable Margin means with respect to any Type of Loan, the per annum rate equal to one and 75/100 percent (1.75%). The Applicable Margin with respect to any Type of Loan may be increased by two percent (2%) per annum during the existence of an Event of Default, if so required by the Administrative Agent."
"Assumed Indebtedness means Indebtedness of a Person which is (a)in existence at the time such Person becomes a Subsidiary of the Company or (b)is assumed in connection with an Investment in or Acquisition of such Person, and in each case, has not been incurred or created by such Person in connection with, or in anticipation or contemplation of, such Person becoming a Subsidiary of the Company."
"Availability Reserves means, without duplication of any other Reserves or items that are otherwise addressed or excluded through eligibility criteria, such reserves as the Administrative Agent from time to time determines in its Credit Judgment as being appropriate (a)to reflect the impediments to the Administrative Agents ability to realize upon the Collateral consisting of Eligible Accounts or Eligible Inventory, (b)to reflect sums that any Loan Party may be required to pay under any Section of this Agreement or any other Loan Document (including taxes, assessments, insurance premiums, or, in the case of leased assets, rents or other amounts payable under such leases) and has failed to pay, (c)to reflect amounts for which claims may be reasonably expected to be asserted against the Collateral, the Administrative Agent or the Lenders or (d)to reflect criteria, events, conditions, contingencies or risks which adversely affect any component of the Borrowing Base, or the assets, business, financial performance or financial condition of any Loan Party. Without limiting the generality of the foregoing, Availability Reserves may include (but are not limited to) reserves based on: (i)Rent and Charge Reserves; (ii)customs duties, and other costs to release Inventory which is being imported into the United States; (iii)outstanding Taxes and other governmental charges, including, without limitation, ad valorem, real estate, personal property, sales, and other Taxes which might have priority over the interests of the Administrative Agent in the Collateral; (iv)salaries, wages and benefits due to employees of any Loan Party (including amounts for employee wage claims for earned wages, vacation pay, health care reimbursements and other amounts due under Wisconsin wage lien law, Wis. Stat 109.01, et seq.) or any similar state or local law; (v)any liabilities that are or may become secured by Liens on the Collateral (including Permitted Liens) which might have priority over the Liens or interests of the Administrative Agent in the Collateral; (vi)Credit Product Reserves; (vii)reserves with respect to the salability of Eligible Inventory or which reflect such other factors as affect the market value of the Eligible Inventory, including obsolescence, seasonality, Shrink; vendor chargebacks, imbalance, change in Inventory character, composition or mix, markdowns and out of date and/or expired Inventory; and (viii)the Dilution Reserve."
"Business Day means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agents Office is located and, if such day relates to any interest rate settings as to a Eurodollar Rate Loan, any fundings, disbursements, settlements and payments in respect of any such Eurodollar Rate Loan, or any other dealings to be carried out pursuant to this Agreement in respect of any such Eurodollar Rate Loan, means any such day that is also a London Banking Day."
"(b)readily marketable direct obligations of the government of the United States or any agency or instrumentality thereof, or obligations the timely payment of principal and interest on which are fully and unconditionally guaranteed by the government of the United States or any state or municipality thereof, in each case so long as such obligation has an investment grade rating by S&P and Moodys;"
"(d)insured certificates of deposit or bankers acceptances of, or time deposits with any Lender or with any commercial bank that (i)is a member of the Federal Reserve System, (ii)issues (or the parent of which issues) commercial paper rated as described in the first portion of clause(c) above, (iii)is organized under the laws of the United States or of any state thereof and (iv)has combined capital and surplus of at least $500,000,000;"
"(a)any person or group (as such terms are used in Sections13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of the Company or its Subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the beneficial owner (as defined in Rules 13d-4 and 13d-6 under the Exchange Act, except that a person or group shall be deemed to have beneficial ownership of all securities that such person or group has the right to acquire (such right, an option right), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 50% or more of the Equity Interests of the Company on a fully- diluted basis (and taking into account all such Equity Interests that such person or group has the right to acquire pursuant to any option right); or"
"Consolidated Net Income means, for any period, for the Company and its Subsidiaries on a Consolidated basis, the net income after taxation of the Company and its Subsidiaries for that period excluding (a)net losses or gains realized in connection with (i)any sale, lease, conveyance or other disposition of any asset (other than in the Ordinary Course of Business), or (ii)repayment, repurchase or redemption of Indebtedness, and (b)extraordinary or nonrecurring gain or income (or expense), including, any compensation charge incurred in connection with the Transactions; provided that there shall be excluded from Consolidated Net Income, without duplication, the net income or loss of (x)any Person that is not a Subsidiary or that is accounted for by the equity method of accounting to the extent of the amount of dividends or distributions are not actually paid to the Company or a Subsidiary in cash, (y)any Person in which any other Person (other than the Company or a Subsidiary) has an ownership interest, except to the extent of the amount of dividends or other distributions actually paid in cash to the Company or a Subsidiary by such Person during such period and (z)any Person the ability of which to make Restricted Payments is restricted by any Restrictive Agreement, except to the extent of the amount of dividends or other distributions actually paid in cash to the Company or a Subsidiary by such Person during such period."
"Control means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. Controlling and Controlled have meanings correlative thereto. Without limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another Person if such other Person possesses, directly or indirectly, power to vote 10% or more of the securities having ordinary voting power for the election of directors, managing general partners or the equivalent."
"Credit Judgment means the Administrative Agents judgment exercised in good faith and consistent with standard practices of an asset based lender, based upon its consideration of any factor that it believes (a) could adversely affect the quantity, quality, mix or value of Collateral (including any applicable Laws that may inhibit collection of an Account), the enforceability or priority of the Administrative Agents Liens, or the amount that the Administrative Agent and Lenders could receive in liquidation of any Collateral; (b) suggests that any collateral report or financial information delivered by the Borrower or any Borrower is incomplete, inaccurate or misleading in any material respect; (c) materially increases the likelihood of any proceeding under any Debtor Relief Law involving a Borrower; or (d) creates or could result in a Default or Event of Default. In exercising such judgment, the Administrative Agent may consider any factors that could increase the credit risk of lending to Borrowers on the security of the Collateral."
"Customs Broker Agreement means an agreement, reasonably acceptable in form and substance to the Administrative Agent, among a Loan Party, a customs broker or other carrier, and the Administrative Agent, in which the customs broker or other carrier acknowledges that it has control over and holds the documents evidencing ownership of the subject Inventory for the benefit of the Administrative Agent and agrees, upon notice from the Administrative Agent, to hold and dispose of the subject Inventory solely as directed by the Administrative Agent."
"Dominion Trigger Period means the period (a)commencing on the day that (i) an Event of Default continues beyond all applicable cure periods or (ii)Availability is less than the greater of (A)fifteen percent (15%) of the Aggregate Revolving Credit Commitments at such time and (B)$6,000,000.00, and (b)continuing until the date that during the previous thirty (30) consecutive days, (i) all Events of Default have been cured or waived and (ii) Availability has been greater than the greater of (A)fifteen percent (15%) of the Aggregate Revolving Credit Commitments at such time and (B)$6,000,000.00."
"Equity Interests means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination."
"Excess Cash Flow means with respect to any fiscal year of the Company, commencing with the fiscal year ending June 30, 2015, the remainder of (a)Consolidated EBITDA for such period, minus (b)the sum, without duplication, of (i)cash payments permitted hereunder and made during such period with respect to Capital Expenditures that are not financed, plus (ii)all income taxes paid in cash by the Company and its Subsidiaries during such period net of refunds actually received in cash during such period, plus (iii)cash Consolidated Cash Interest Charges (net of interest income) of the Company during such period."
"Excluded Swap Obligation means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Loan Party of, or the grant by such Loan Party of a Lien 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 Loan Partys 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 Loan Party or the grant of such Lien becomes 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 Lien is or becomes illegal."
"Extraordinary Expenses means all costs, expenses, liabilities or advances that Administrative Agent may incur or make during a Default or Event of Default, or during the pendency of an proceeding of any Loan Party under any Debtor Relief Laws, 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 proceeding (whether instituted by or against Administrative Agent, any Lender, any Loan Party, any representative of creditors of a Loan Party or any other Person) in any way relating to any Collateral (including the validity, perfection, priority or avoidability of Administrative Agents Liens with respect to any Collateral), Loan Documents, Letters of Credit or Obligations, including any lender liability or other claims; (c)the exercise, protection or enforcement of any rights or remedies of Administrative Agent in, or the monitoring of, any proceeding applicable to any Loan Party under any Debtor Relief Laws; (d)settlement or satisfaction of any taxes, charges or Liens with respect to any Collateral; (e)any enforcement action; (f)negotiation and documentation of any modification, waiver, workout, restructuring or forbearance with respect to any Loan Documents or Obligations; and (g)Protective Advances. Such costs, expenses and advances include transfer fees, Other Taxes, storage fees, insurance costs, permit fees, utility reservation and standby fees, legal fees, appraisal fees, brokers fees and commissions, auctioneers fees and commissions, accountants fees, environmental study fees, wages and salaries paid to employees of any Loan Party or independent contractors in liquidating any Collateral, and travel expenses."
"Field Exam means any visit and inspection of the properties, assets and records of any Loan Party during the term of this Agreement, which shall include access to such properties, assets and records sufficient to permit the Administrative Agent or its representatives to examine, audit and make extracts from any Loan Partys books and records, make examinations and audits of any Loan Partys other financial matters and Collateral as Administrative Agent deems appropriate in its Credit Judgment, and discussions with its officers, employees, agents, advisors and independent accountants regarding such Loan Partys business, financial condition, assets, prospects and results of operations."
"Hazardous Materials means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law."
"Interest Payment Date means, as to any Eurodollar Rate Loan, (i)the last day of each Interest Period applicable to such Eurodollar Rate Loan, (ii)any date that such Loan is prepaid or converted, in whole or in part, and (iii)the Maturity Date; provided, further, that interest accruing at the Default Rate shall be payable from time to time upon demand of the Administrative Agent."
"Minimum Collateral Amount means, at any time, (a) with respect to Cash Collateral consisting of cash or Deposit Account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 105% of the Fronting Exposure of the Letter of Credit Issuer with respect to Letters of Credit issued and outstanding at such time plus 105% of the Fronting Exposure of the Administrative Agent with respect to Protective Advances outstanding at such time, (b) with respect to Cash Collateral consisting of cash or Deposit Account balances provided in accordance with the provisions of Section 2.17(a)(i) or 2.17(a)(ii), an amount equal 105% of the Outstanding Amount of all Letter of Credit Obligations and (c) otherwise, an amount determined by the Administrative Agent in its sole discretion."
"Mortgages means the mortgages, leasehold mortgages, deeds of trust, leasehold deeds of trust or deeds to secure debt executed by a Loan Party on or about the Closing Date, or from time to time thereafter as may be required under the Loan Documents, in favor of the Administrative Agent, for the benefit of the Credit Parties, by which such Loan Party has granted to the Administrative Agent, as security for the Obligations, a Lien upon the Mortgaged Property described therein, together with all mortgages, deeds of trust and comparable documents now or at any time hereafter securing the whole or any part of the Obligations."
"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)."
"Overnight Rate means, for any day, with respect to any amount denominated in Dollars, the greater of (a)the Federal Funds Rate and (b)an overnight rate determined by the Administrative Agent, the Letter of Credit Issuer, or the Swing Line Lender, as the case may be, in accordance with banking industry rules on interbank compensation."
"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."
"Reporting Trigger Period means the period (a)commencing on the day that (i)an Event of Default continues beyond all applicable cure periods or (ii)Availability is less than the greater of (A)twenty percent (20%) of the Aggregate Revolving Credit Commitments at such time and (B)$8,000,000.00, and (b)continuing until the date that during the previous thirty (30) consecutive days, (i)the Event of Default is cured or waived and (ii)Availability is greater than the greater of (i)twenty percent (20%) of the Aggregate Revolving Credit Commitments at such time and (ii)$8,000,000.00 at all times during such period."
"Revolving Credit Facility means the facility described in Sections2.01(a) and 2.03 providing for Revolving Loans and Letters of Credit to or for the benefit of the Borrower by the Revolving Lenders, and Letter of Credit Issuer, as the case may be, in the maximum aggregate principal amount at any time outstanding of Forty Million and No/100 Dollars ($40,000,000.00), as adjusted from time to time pursuant to the terms of this Agreement."
"Subsidiary of a Person means a corporation, partnership, joint venture, limited liability company or other business entity (but not a representative office of such Person) 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, all references herein to a Subsidiary or to Subsidiaries shall refer to a Subsidiary or Subsidiaries of the Company."
"(a)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 will shall be construed to have the same meaning and effect as the word shall. Unless the context requires otherwise, (i)any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), including any such amendments, supplements or modifications in connection with this Agreement, (ii)any reference herein to any Person shall be construed to include such Persons successors and assigns, (iii)the words herein, hereof and hereunder, and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv)all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v)any reference to any law shall include all statutory and regulatory 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 or supplemented from time to time, (vi)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, and (vii) in writing shall include emails or any other electronic format consistent with the notice provisions herein."
"(d)A reference to Loan Parties knowledge or similar concept means actual knowledge of a Responsible Officer, or knowledge that a Responsible Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter."
"(i)Subject to the terms and conditions set forth herein, (A)the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Lenders set forth in this Section2.03, (1)from time to time on any Business Day during the period from the Closing Date until the earlier to occur of the Letter of Credit Expiration Date or the termination of the Availability Period, to issue Letters of Credit at the request of the Borrower for the account of the Company, and to amend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2)to honor drafts under the Letters of Credit; and (B)the Revolving Lenders severally agree to participate in Letters of Credit issued for the account of the Company at the request of the Borrower and any drawings thereunder; provided that the Letter of Credit Issuer shall not be obligated to make any Letter of Credit Extension with respect to any Letter of Credit, and no Revolving Lender shall be obligated to participate in any Letter of Credit, if as of the date of such Letter of Credit Extension, (A)the Total Revolving Credit Outstandings would exceed the Borrowing Base, (B) the aggregate Revolving Credit Outstandings of any Revolving Lender would exceed such Revolving Lenders Revolving Credit Commitment, or (C) the Outstanding Amount of the Letter of Credit Obligations would exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the Letter of Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits and subject to the terms and conditions hereof, the Borrowers ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed."
"(iv)Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the Letter of Credit Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment."
"(v)Each Revolving Lenders obligation to make Revolving Loans or Letter of Credit Advances to reimburse the Letter of Credit Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any set-off, counterclaim, recoupment, defense or other right which such Revolving Lender may have against the Letter of Credit 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. No such making of an Letter of Credit Advance shall relieve or otherwise impair the obligation of the Borrowers to reimburse the Letter of Credit Issuer for the amount of any payment made by the Letter of Credit Issuer under any Letter of Credit, together with interest as provided herein."
"(i)The Swing Line Lender at any time in its sole and absolute discretion, but no less frequently than weekly, may request, on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Revolving Lender make a Eurodollar Rate Revolving Loan in an amount equal to such Revolving Lenders Applicable Percentage 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 Committed 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 Eurodollar Rate Loans, but subject to the unutilized portion of the Aggregate Revolving Credit Commitments and the conditions set forth in Section5.02. The Swing Line Lender shall furnish the Borrower with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent. Each Revolving Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Committed Loan Notice available to the Administrative Agent in Same Day Funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan) for the account of the Swing Line Lender at the Administrative Agents Office not later than 2:00p.m. on the day specified in such Committed Loan Notice, whereupon, subject to Section2.04(c)(ii), each Revolving Lender that so makes funds available shall be deemed to have made a Eurodollar Rate Revolving Loan to the Borrowers in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender."
"(ii)Equity Issuance. Upon the sale or issuance by any Loan Party or any of its Subsidiaries of any of its Equity Interests (other than any sales or issuances of Equity Interests to another Loan Party), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary."
"(iv)Extraordinary Receipts. So long as (i) no Event of Default has occurred and is continuing beyond all applicable cure periods or (ii) a Dominion Trigger Period is not in effect, then upon receipt of any cash by (or paid to or for the account of) any Loan Party or any of its Subsidiaries not in the ordinary course of business in excess of $250,000, including tax refunds, pension plan reversions, proceeds of insurance (other than payments of death benefits or cash values of life insurance policies to an officer of the Borrower or beneficiary thereof pursuant to the terms of such policies or other contractual arrangements between the Borrower and such officer), judgments, settlements or other payments in connection with any cause of action, condemnation awards (and payments in lieu thereof), indemnity payments and any purchase price adjustments, and not otherwise included in clause(i), (ii)or (iii)of this Section2.06(b), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of the cash amount thereof (net of all reasonable out-of-pocket expenses or other amounts required to be paid in connection therewith) immediately upon receipt."
"(viii)Non-Loan Party Prepayment Amounts; Restrictions on Repatriation. Notwithstanding any other provisions of this Section2.06(b) to the contrary, with respect to (x)any Net Cash Proceeds required to be used for a prepayment under Sections2.06(b)(i) through (iv) above that are held by and derive from a non-Loan Party (Non-Loan Party Net Cash Proceeds) and (y)any Consolidated Net Income constituting a portion of Excess Cash Flow required to be used for a prepayment under Section2.06(b)(i) above that is held by and derived from any non-Loan Party (Non-Loan Party Excess Cash Flow and together with all Non-Loan Party Net Cash Proceeds, Non-Loan Party Prepayment Funds):"
"(ii)If any other Event of Default exists, then the Administrative Agent may, and upon the request of the Required Lenders shall, require (and notify the Borrower thereof) that all outstanding Loan Obligations shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate."
"(b)Letter of Credit Fees. Subject to the provisions of the last sentence of this clause(b), the Borrower shall pay to the Administrative Agent for the account of each Revolving Lender in accordance with its Applicable Percentage, in Dollars, a Letter of Credit fee (Letter of Credit Fee) for each Letter of Credit equal to the Applicable Margin for Eurodollar Rate Loans times the daily maximum amount available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit); provided, however, any Letter of Credit Fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral satisfactory to the Letter of Credit Issuer shall be payable, to the maximum extent permitted by applicable Law, to the other Revolving Lenders in accordance with the upward adjustments in their respective Applicable Percentages allocable to such Letter of Credit pursuant to Section 2.18(a)(iv), with the balance of such fee, if any, payable to the Letter of Credit Issuer for its own account. 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 Section1.07. The Letter of Credit Fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in ArticleV is not met, and shall be due and payable quarterly in arrears on the first Business Day after each calendar quarter, commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period. At all times that the Default Rate shall be applicable to any Loans pursuant to Section2.08(b), the Letter of Credit Fees payable under this subsection(b) shall accrue and be payable at the Default Rate."
"(d)Obligations of Lenders Several. The obligations of the Lenders hereunder to make Revolving Loans, to fund participations in Letters of Credit and Swing Line Loans to make payments pursuant to Section 11.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 11.04(c)."
"(ii)the provisions of this Section shall not be construed to apply to (A) any payment made by or on behalf of any Loan Party pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (B) the application of Cash Collateral provided for in Section 2.17, or (C) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in Letter of Credit Obligations or Swing Line Loans to any assignee or participant, other than an assignment to any Loan Party or any Affiliate thereof (as to which the provisions of this Section shall apply)."
"(b)The Administrative Agent shall deliver to each of the Revolving Lenders promptly after a Settlement Date a summary statement of the amount of outstanding Revolving Loans for the period and the amount of repayments received for the period. As reflected on the summary statement, (i) the Administrative Agent shall transfer to each Revolving Lender its Applicable Percentage of repayments, and (ii) each Revolving Lender shall transfer to the Administrative Agent (as provided below) or the Administrative Agent shall transfer to each Revolving Lender, such amounts as are necessary to insure that, after giving effect to all such transfers, the Revolving Credit Outstandings of each Revolving Lender shall be equal to such Revolving Lenders Applicable Percentage of all the Total Revolving Credit Outstandings as of such Settlement Date. If the summary statement requires transfers to be made to the Administrative Agent by the Revolving Lenders and is received prior to 1:00 p.m. on a Business Day, such transfers shall be made in immediately available funds no later than 3:00 p.m. that day; and, if received after 1:00 p.m., then no later than 3:00 p.m. on the next Business Day. The obligation of each Revolving Lender to transfer such funds is irrevocable, unconditional and without recourse to or warranty by the Administrative Agent. If and to the extent any Revolving Lender shall not have so made its transfer to the Administrative Agent, such Lender agrees to pay to the Administrative Agent, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent, equal to the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation plus any reasonable administrative, processing, or similar fees customarily charged by the Administrative Agent in connection with the foregoing."
"(a)Request for Increase. Provided there exists no Default, upon notice to and with the written consent of the Administrative Agent (which shall promptly notify the Revolving Lenders), the Borrower may from time to time request an increase in the Aggregate Revolving Credit Commitments by an amount (for all such requests) not exceeding $10,000,000.00 (each such increase, a Commitment Increase); provided that (i)any such request for an increase shall be in a minimum amount of $5,000,000.00 in the aggregate or, if less, the entire unutilized amount of the maximum amount of all such requests set forth above and (ii)no more than two (2)such request shall be made during the term of this Agreement. At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which the Revolving Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Revolving Lenders)."
"(b)Revolving Lender Elections to Increase. Each Revolving Lender shall notify the Administrative Agent within such time period whether or not it agrees to commit to a portion of the requested increase of the Revolving Credit Facility and, if so, whether by an amount equal to, greater than, or less than its Applicable Percentage. Any Revolving Lender not responding within such time period shall be deemed to have declined to commit to any portion of the requested increase."
"(ii)Without limiting the provisions of subsection (a) or (b) above, each Lender and the Letter of Credit Issuer shall, and does hereby, indemnify the Loan Parties and the Administrative Agent, and shall make payment in respect thereof within 10 days after demand therefor, against any and all Taxes and any and all related losses, claims, liabilities, penalties, interest and expenses (including the fees, charges and disbursements of any counsel for the Borrower or the Administrative Agent) incurred by or asserted against the Loan Parties or the Administrative Agent by any Governmental Authority as a result of the failure by such Lender or the Letter of Credit Issuer, as the case may be, to deliver, or as a result of the inaccuracy, inadequacy or deficiency of, any documentation required to be delivered by such Lender or the Letter of Credit Issuer, as the case may be, to the Borrower or the Administrative Agent pursuant to subsection (e). Each Lender and the Letter of Credit Issuer hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or the Letter of Credit Issuer, as the case may be, under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this clause(ii). The agreements in this clause(ii) shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender or the Letter of Credit Issuer and the occurrence of the Facility Termination Date."
"(A)any Lender that is a United States person within the meaning of Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent, as the case may be, to determine whether or not such Lender is subject to backup withholding or information reporting requirements; and"
"(IV)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 to the effect that such Foreign Lender is not (A) a bank within the meaning of Section 881(c)(3)(A) of the Code, (B) a 10 percent shareholder of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a controlled foreign corporation described in Section 881(c)(3)(C) of the Code and (y) executed originals of Internal Revenue Service Form W-8BEN, or"
"(c)Certificates for Reimbursement. A certificate of a Lender or the Letter of Credit Issuer setting forth the amount or amounts necessary to compensate such Lender or the Letter of Credit Issuer or its holding company, as the case may be, as specified in subsection (a)or (b) of this Section and delivered to the Borrower shall be conclusive absent manifest error. The Loan Parties shall pay such Lender or the Letter of Credit Issuer, as the case may be, the amount shown as due on any such certificate within 10 Business Days after receipt thereof."
"(iii)such certificates of resolutions or other action, incumbency certificates (including specimen signatures), and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;"
"(iv)such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and in any other jurisdiction in which the failure to be so qualified could reasonably be expected to have a Material Adverse Effect, including certified copies of such Loan Partys Organization Documents, shareholders agreements, certificates of good standing and/or qualification to engage in business from each jurisdiction identified on Schedule5.01 hereto;"
"(xv)evidence of the payment in full and cancellation of any credit facility existing on or prior to the date hereof, including, without limitation, (i) the credit facility with Wells Fargo Bank, National Association and (ii) the credit facility with Prudential, including terminations of Uniform Commercial Code financing statements filed in connection with the existing agreements and other evidence of lien releases and other related matters on terms acceptable to the Administrative Agent;"
"(c)Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such reasonable fees, charges and disbursements as shall constitute its reasonable estimate of such reasonable fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)."
"(a)The representations and warranties of the Loan Parties contained in ARTICLEVI or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section5.02(a), the representations and warranties contained in subsections (a)and (b)of Section6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses(a) and (b), respectively, of Section7.01."
"6.02 Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is a party, and the consummation of the Transactions, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a)contravene the terms of the Organization Documents of any such Person; (b)conflict with or result in any breach or contravention of, or the creation of any Lien under (i)any Contractual Obligation to which such Person is a party or (ii)any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c)violate any Law."
"(a)Each Loan Party and each of its Subsidiaries has good record and marketable title in fee simple to or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each Loan Party and each of its Subsidiaries has good and marketable title to, valid leasehold interests in, or valid licenses to use all personal property and assets material to the ordinary conduct of its business."
"(b)Schedule6.08(b)(1) sets forth the address (including street address, county and state) of all Real Estate that is owned by the Loan Parties as of the Closing Date. Each Loan Party and each of its Subsidiaries has good, marketable and insurable fee simple title to the real property owned by such Loan Party or such Subsidiary, free and clear of all Liens, other than Permitted Liens. Schedule6.08(b)(2) sets forth the address (including street address, county and state) of all Leases of the Loan Parties, together with a list of the lessor and its contact information with respect to each such Lease as of the Closing Date. Each of such Leases is in full force and effect and the Loan Parties are not in default of any material terms thereof."
"(c)Schedule8.02 sets forth, as of the Closing Date, a complete and accurate list of all Liens on the personal property or assets of each Loan Party and each of its Subsidiaries that are more than Fifty Thousand Dollars ($50,000) per Lien and that in the aggregate more than Three Hundred Thousand Dollars ($300,000) per Loan Party, showing as of the date hereof the lienholder thereof, the principal amount of the obligations secured thereby and the property or assets of such Loan Party or such Subsidiary subject thereto. The property of each Loan Party and each of its Subsidiaries is subject to no Liens, other than Liens set forth on Schedule7.01, and Permitted Liens."
"(c)Except as otherwise set forth on Schedule6.09 or as would not individually or in the aggregate reasonably be expected to result in a Material Adverse Effect, no Loan Party or any Subsidiary thereof is undertaking, and no Loan Party or any Subsidiary thereof has completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of any Governmental Authority or the requirements of any Environmental Law; and all Hazardous Materials generated, used, treated, handled or stored by any Loan Party or any Subsidiary at, or transported to or from by or on behalf of any Loan Party or any Subsidiary, any property currently owned or operated by any Loan Party or any Subsidiary thereof have, to the knowledge of the Loan Parties, been disposed of in a manner not reasonably expected to result in material liability to any Loan Party or any Subsidiary thereof."
"6.11 Taxes. Each Loan Party 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 Properly Contested and except where the failure to file such returns or reports could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. There is no proposed tax assessment against the Company or any Subsidiary that would, if made, have a Material Adverse Effect. Neither the Company nor any Subsidiary thereof is party to any tax sharing agreement other than the Tax Sharing Agreement."
"6.13 Subsidiaries; Equity Interests. No Loan Party (a)has any Subsidiaries other than those specifically disclosed in part (a)of Schedule6.13 (which Schedule sets forth the legal name, jurisdiction of incorporation or formation and authorized Equity Interests of each such Subsidiary) or created or acquired in compliance with Section7.12, and (b)has any equity investments in any other corporation or entity other than those specifically disclosed on part(b) of Schedule6.13 or made after the Closing Date in compliance with this Agreement and the other Loan Documents. All of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and non-assessable and are owned by a Loan Party (or a Subsidiary of a Loan Party) in the amounts specified on Part(a) of Schedule6.13 free and clear of all Liens except for those created under the Security Instruments. All of the outstanding Equity Interests in the Loan Parties have been validly issued, and are fully paid and non-assessable and are owned in the amounts specified on part(c) of Schedule6.13 free and clear of all Liens except for those created under the Security Instruments."
"6.15 Disclosure. Each Loan Party has disclosed or caused the Borrower to disclose to the Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. No report, financial statement, certificate (including the Borrowing Base Certificates) or other information furnished (whether in writing or orally) by or on behalf of any Loan Party or any Subsidiary to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case, as modified or supplemented by other information so furnished) contains any 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; provided that, with respect to projected financial information, each Loan Party represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time."
"(b)No part of the proceeds from the Credit Extensions constitutes or will constitute funds obtained on behalf of any Blocked Person or will otherwise be used by any Loan Party or any Controlled Entity, directly or indirectly, (i)in connection with any investment in, or any transactions or dealings with, any Blocked Person or (ii)otherwise in violation of U.S. Economic Sanctions."
"(d) (i) No Loan Party nor any Controlled Entity (w)has been charged with, or convicted of bribery or any other anti-corruption related activity under any applicable law or regulation in a U.S. or any non-U.S. country or jurisdiction, including but not limited to, the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010 (collectively, Anti-Corruption Laws), (x)to the Companys actual knowledge after making due inquiry, is under investigation by any U.S. or non-U.S. Governmental Authority for possible violation of Anti-Corruption Laws, (y)has been assessed civil or criminal penalties under any Anti-Corruption Laws or (z)has been or is the target of sanctions imposed by the United Nations or the European Union."
"(a)as soon as available, but in any event within 90 days after the end of each Fiscal Year of the Company or, if earlier, 15 days after the date required to be filed with the SEC (without giving effect to any extension permitted by the SEC), a Consolidated and consolidating balance sheet of the Company and its Subsidiaries as at the end of such Fiscal Year, and the related Consolidated and consolidating statements of income or operations, shareholders equity and cash flows for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, (i)such Consolidated statements to be audited and accompanied by a report and opinion of an Auditor, which report and opinion shall be prepared in accordance with audit standards of the Public Company Accounting Oversight Board and applicable Securities Laws and shall not be subject to any going concern or like qualification or exception or any qualification or exception as to the scope of such audit and shall include a certificate of the Auditor stating that in making the examination necessary with respect to such audit it has not become aware of any Default in respect of any term, covenant, condition of Section8.12 or other provision in so far as they relate to accounting matters or, if any such Default shall exist, stating the nature and status of such event, and (ii)such consolidating statements to be certified by the chief executive officer, chief financial officer, treasurer or controller of the Company to the effect that such statements are fairly stated in all material respects when considered in relation to the Consolidated financial statements of the Company and its Subsidiaries;"
"(b)quarterly, as soon as available, but in any event within 45 days after the end of each Fiscal Quarter, unaudited Consolidated and consolidating balance sheets of the Company as of the end of such Fiscal Quarters and the related statements of income and cash flow for such Fiscal Quarters, on a Consolidated basis for the Company and Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Borrower as prepared in accordance with GAAP and fairly presenting the financial condition, results of operations, shareholders equity and cash flows for such Fiscal Quarter, subject to normal year-end adjustments and the absence of footnotes;"
"(d)as soon as available but not later than 30 days prior to the end of each Fiscal Year, annual financial projections of the Company and its Subsidiaries on a Consolidated basis, in form satisfactory to the Administrative Agent and the Required Lenders, consisting of (i)Consolidated balance sheets and statements of income or operations and cash flows and (ii)monthly Availability for Borrower for the immediately following Fiscal Year."
"(b)as soon as available, but in any event within 30 days after the end of each Fiscal Month from and after the date hereof, Borrower shall deliver to the Administrative Agent, in the form reasonably acceptable to the Administrative Agent, (i)reconciliations of all Borrowers Accounts as shown on the month-end Borrowing Base Certificate for the immediately preceding month to Borrowers accounts receivable agings, to Borrowers general ledger and to Borrowers most recent financial statements, (ii)accounts payable agings, (iii)reconciliations of Borrowers Inventory as shown on Borrowers perpetual inventory, to Borrowers general ledger and to Borrowers financial statements and (iv)Inventory status reports, all with supporting materials as the Administrative Agent shall reasonably request;"
"Each Loan Party hereby acknowledges that (a)the Administrative Agent will make available to the Lenders and the Letter of Credit Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, Borrower Materials) by posting the Borrower Materials on SyndTrak or another similar electronic system (the Platform) and (b)certain of the Lenders (each, a Public Lender) may have personnel who do not wish to receive material non-public information with respect to the Loan Parties or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons securities. Each Loan Party hereby agrees that, so long as Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities, (w)all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked PUBLIC which, at a minimum, shall mean that the word PUBLIC shall appear prominently on the first page thereof; (x)by marking Borrower Materials PUBLIC, each Loan Party shall be deemed to have authorized the Administrative Agent, the Letter of Credit Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to any Loan Party or its securities for purposes of United States federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section11.07); (y)all Borrower Materials marked PUBLIC are permitted to be made available through a portion of the Platform designated Public Investor; and (z)the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked PUBLIC as being suitable only for posting on a portion of the Platform not designated Public Investor. Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any Borrower Materials PUBLIC."
"(b)of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including (i)breach or non-performance of, or any default under, a Contractual Obligation of any Loan Party or any Subsidiary; (ii)any dispute, litigation, investigation, proceeding or suspension between any Loan Party or any Subsidiary and any Governmental Authority; (iii)the commencement of, or any material development in, any litigation or proceeding affecting any Loan Party or any Subsidiary, including pursuant to any applicable Environmental Laws; violation or asserted violation of any applicable Law;"
"(a)Maintain with (i)companies having an A.M. Best Rating of at least A or (ii)financially sound and reputable insurance companies reasonably acceptable to the Administrative Agent and not Affiliates of the Loan Parties, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business and operating in the same or similar locations or as is required by applicable Law, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons and as are reasonably acceptable to the Administrative Agent."
"(e)Deliver to the Administrative Agent, prior to the cancellation, modification or non-renewal of any such policy of insurance, a copy of a renewal or replacement policy or insurance certificate (or other evidence of renewal of a policy previously delivered to the Administrative Agent, including an insurance binder) together with evidence reasonably satisfactory to the Administrative Agent of payment of the premium therefor."
"(b)Reimburse the Administrative Agent for all reasonable and documented out-of-pocket charges, costs and expenses of the Administrative Agent in connection with (i)up to one appraisal and two Field Exams during any twelve (12) month period during which no Reporting Trigger Period has arisen and (ii)up to two appraisals and two additional Field Exams in any twelve (12)month period during which a Reporting Trigger Period has arisen; provided, however, that if a Field Exam or appraisal is initiated during a Default or Event of Default, all charges, costs and expenses therefor shall be reimbursed by the Loan Parties without regard to such limits."
"7.11 Use of Proceeds. Use the proceeds of the Credit Extensions (i)to refinance certain Indebtedness under existing agreements, (ii)to pay fees and expenses in connection with the initial Credit Extension hereunder, and (iii)for working capital, capital expenditures, and other general corporate purposes not in contravention of any Law or of any Loan Document. None of the proceeds of the Credit Extensions will be used, directly or indirectly, (a)to finance or refinance dealings or transactions by or with any Person that is described or designated in the Specially Designated Nationals and Blocked Persons List (the SDN List) of the Office of Foreign Assets Control, United States Department of the Treasury (OFAC) or is otherwise a Person officially sanctioned by the United States of America pursuant to the OFAC Sanctions Program or (b)for any purpose that is otherwise in violation of the Trading with the Enemy Act, the OFAC Sanctions Program, the PATRIOT Act or CISADA (collectively, the Foreign Activities Laws)."
7.15 Licenses. (a) Keep in full force and effect each License (i)the expiration or termination of which could reasonably be expected to materially adversely affect the realizable value in the use or sale of a material amount of Inventory or (ii)the expiration or termination of which could reasonably be expected to have a Material Adverse Effect (each a Material License); (b)promptly notify the Administrative Agent of (i)any material modification to any such Material License that could reasonably be expected to be materially adverse to any Loan Party or the Administrative Agent or any Lender and (ii)entering into any new Material License; (c)pay all Royalties (other than immaterial Royalties or Royalties being Properly Contested) arising under such Material Licenses when due (subject to any cure or grace period applicable thereto); and (d)notify the Administrative Agent of any material default or material breach asserted in writing by any Person to have occurred under any such Material License.
"(h)Liens with respect to minor imperfections of title and easements, rights-of-way, covenants, consents, reservations, encroachments, variations and zoning and other similar restrictions, charges, encumbrances or title defects affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person and do not materially detract from the value of or materially impair the use by the Loan Parties in the Ordinary Course of Business of the property subject to or to be subject to such encumbrance;"
"(j)Liens securing Indebtedness permitted under Section8.01(f); provided that (i)such Liens do not at any time encumber any property other than the property financed by such Indebtedness and (ii)the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;"
"(k)Liens securing Assumed Indebtedness of the Loan Parties permitted pursuant to Section8.01(g); provided that (i)such Liens do not at any time encumber any property other than property of the Subsidiary acquired, or the property acquired, and proceeds thereof in connection with such Assumed Indebtedness and shall not attach to any assets of the Loan Parties theretofore existing or (except for any such proceeds) which arise after the date thereof and (ii)the Assumed Indebtedness and other secured Indebtedness of the Loan Parties secured by any such Lien does not exceed the fair market value of the property being acquired in connection with such Assumed Indebtedness;"
"(c)(i)Investments by the Loan Parties and their Subsidiaries in their respective Subsidiaries outstanding on the date hereof, (ii)additional Investments by the Company and its Subsidiaries in Loan Parties, (iii)additional Investments by Subsidiaries of the Company that are not Loan Parties in other Subsidiaries that are not Loan Parties, and (iv)so long as no Default has occurred and is continuing or would result from such Investment, additional Investments by the Loan Parties in Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed $250,000.00;"
"(a)any Subsidiary of the Company may merge or consolidate with or liquidate or dissolve into a Loan Party; provided, that, (i)the Loan Party shall be the continuing or surviving Person, and (ii)in the case of any merger of a Loan Party and a Subsidiary Guarantor, such Loan Party shall be the continuing or surviving Person;"
"(c)the Company shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests in an aggregate amount in any Fiscal Year not to exceed $2,000,000.00 if, at least ten (10) Business Days prior to each such Restricted Payment, the Borrower has delivered a certificate to the Administrative Agent demonstrating compliance with the requirements set forth herein; provided that if such Restricted Payments exceed $2,000,000.00 in the aggregate in any Fiscal Year of the Borrower, Pro Forma Availability shall exceed the greater of (i) $8,000.000,00 or (ii) twenty percent (20%) of the Aggregate Revolving Credit Commitments both (x) immediately prior to and after giving effect to such Restricted Payment and (y) on an average daily basis for a period of 30 days prior to and 30 days forecasted thereafter such Restricted Payment."
"8.15 Sale and Leaseback. Enter into, or permit any Loan Party to, enter into any agreement or arrangement with any other Person providing for the leasing by any Loan Partys real or personal property which has been or is to be sold or transferred by any Loan Party to such other Person or to any other Person to whom funds have been or are to be advanced by such Person on the security of such property or rental obligations of a Loan Party."
"8.16 Organization Documents; Fiscal Year. (a)Amend, modify or otherwise change any of its Organization Documents in any material respect, except in connection with a transaction permitted under Section8.04, but in any case not in any manner that could have a material adverse effect on the interests of the Credit Parties, or (b)change its Fiscal Year."
"(b)directly or indirectly have any investment in or engage in any dealing or transaction (including, without limitation, any investment, dealing or transaction involving the proceeds of the Credit Extensions) with any Person if such investment, dealing or transaction (A)would cause any Credit Party to be in violation of any law or regulation applicable to such Credit Party or (B)is prohibited by or subject to sanctions under any U.S. Economic Sanctions;"
"(c)conduct, engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, or facilitate a violation of, any of the prohibitions set forth in Executive Order No.13224, the Currency and Foreign Regulations Reporting Act of 1970 (otherwise known as the Bank Secrecy Act), the PATRIOT Act, the Money Laundering Control Act or any other United States anti-money laundering or anti-terrorism law or regulation (collectively, Anti-Money Laundering Laws); or"
"(d)Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any Loan Party or its Subsidiaries herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading when made or deemed made in any material respect; or"
"(e)Cross-Default. (i)With respect to any Indebtedness or guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount any Loan Party or its Subsidiaries (A)fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise, and after passage of any grace period) in respect of any such Indebtedness or guarantee, or (B)fails to observe or perform any other agreement or condition relating to any such Indebtedness or guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, and such default continues for more than the grace or cure period, if any, therein specified, the effect of which default or other event is to cause, or to permit the holder of such Indebtedness or beneficiary of such guarantee (or a trustee or agent on behalf of such holder or beneficiary) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii)there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A)any event of default under such Swap Contract as to which any Loan Party or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B)any Termination Event (as so defined) under such Swap Contract as to which any Loan Party or any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by a Loan Party or any Subsidiary as a result thereof is greater than Threshold Amount; or"
"provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of the Letter of Credit Issuer to make Letter of 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 Letter of Credit Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender."
"Fifth, to that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, Letter of Credit Borrowings and other Obligations, ratably among the Lenders and the Letter of Credit Issuer in proportion to the respective amounts described in this clause Fifth payable to them until paid in full;"
"10.01Appointment and Authority. Each of the Lenders and the Letter of Credit Issuer hereby irrevocably appoints Bank of Montreal 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 or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Letter of Credit Issuer, and no Loan Party shall have rights as a third party beneficiary of any of such provisions. The Administrative Agent alone shall be authorized to determine whether any Accounts or Inventory constitute Eligible Accounts or Eligible Inventory, or whether to impose or release any Reserve, or whether any conditions to funding any Loan or to issuance of a Letter of Credit have been satisfied, which determinations and judgments, if exercised in good faith, shall exonerate Administrative Agent from liability to any Lender or other Person for any error in judgment or mistake."
"10.09The 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 Letter of Credit 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 Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:"
"and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the Letter of Credit Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the Letter of Credit Issuer, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections2.09 and 10.04."
"(a)Care of Collateral. The Administrative Agent shall have no obligation to assure that any Collateral exists or is owned by a Borrower, or is cared for, protected or insured, nor to assure that the Administrative Agents Liens have been properly created, perfected or enforced, or are entitled to any particular priority, nor to exercise any duty of care with respect to any Collateral."
"(b)Lenders as Agent For Perfection by Possession or Control. The Administrative Agent and Credit Parties appoint each Lender as agent (for the benefit of Credit Parties) for the purpose of perfecting Liens in any Collateral held or controlled by such Lender, to the extent such Liens are perfected by possession or control. If any Lender obtains possession or control of any Collateral, it shall notify the Administrative Agent thereof and, promptly upon the Administrative Agents request, deliver such Collateral to the Administrative Agent or otherwise deal with it in accordance with the Administrative Agents instructions."
"Except as otherwise expressly set forth herein, no Credit Product Provider that obtains the benefit of the provisions of Section9.03, any Guaranty or any Collateral by virtue of the provisions hereof or any other Loan Document shall have any voting rights or 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 (including with respect to the release or impairment of any Collateral or notice of or consent to any amendment, waiver or modification of the provisions hereof or of any other Loan Document) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. 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 Credit Product Arrangements in respect of any Payment in Full of the Obligations or the Facility Termination Date"
"11.01Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower or any other Borrower therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrower or the applicable Borrower, 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:"
"(h)release any material Borrower from the this Agreement or any material Security Instrument to which it is a party without the written consent of each Lender, except to the extent such Borrower is the subject of a Disposition permitted by Section8.05 (in which case such release may be made by the Administrative Agent acting alone);"
"(ii)if to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified in its Administrative Questionnaire, as changed pursuant to subsection (d) below (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the Borrower)."
"11.03No Waiver; Cumulative Remedies. No failure by any Lender, the Letter of Credit Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, 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. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law."
"(d)Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable Law, the Loan Parties 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 referred to in subsection (b)above 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)in any case not described in subsection (b)(i)(A) of this Section, 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 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 such Trade Date, shall not be less than $5,000,000, in the case of any assignment in respect of the Revolving Credit 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); provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met."
"(ii)Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lenders rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause(ii) shall not (A)apply to the Swing Line Lenders rights and obligations in respect of Swing Line Loans or (B)prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis."
"(v)No Assignment to Certain Persons. No such assignment shall be made (A)to the Borrower or any of a Borrowers Affiliates or Subsidiaries, (B) 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 (B), or (C)to a natural person."
"(d)Participations. Any Lender may at any time, without the consent of, or notice to, any Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or a Borrower or any of the Borrowers Affiliates or Subsidiaries) (each, a Participant) in all or a portion of such Lenders rights and/or obligations under this Agreement (including all or a portion of its Revolving Credit Commitment and/or the Loans (including such Lenders participations in Letter of Credit Obligations and/or Swing Line 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)the Borrower, the Administrative Agent, the Lenders and the Letter of Credit Issuer shall continue to deal solely and directly with such Lender in connection with such Lenders rights and obligations under this Agreement."
"For purposes of this Section, Information means all information received from any Loan Party or any Subsidiary relating to a Loan Party or any Subsidiary or any of their respective businesses, other than any such information that is available to any Credit Party on a nonconfidential basis prior to disclosure by a Loan Party or any Subsidiary, provided that, in the case of information received from a Loan Party or any Subsidiary after the date hereof, any information not marked PUBLIC at the time of delivery will be deemed to be confidential; provided that any information marked PUBLIC may also be marked Confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information."
"11.09Interest 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 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 Borrower. 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 Loan Obligations hereunder."
"11.10Counterparts; Integration; Effectiveness. This Agreement 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. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section5.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or electronically shall be effective as delivery of a manually executed counterpart of this Agreement."
"11.18No 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 Loan Party acknowledges and agrees, and acknowledges its Affiliates understanding, that: (i)(A)the arranging and other services regarding this Agreement provided by the Credit Parties are arms-length commercial transactions between each Loan Party, on the one hand, and the Credit Parties, on the other hand, (B)each Loan Party has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C)each 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; (ii)(A)each Credit Party 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 acting as an advisor, agent or fiduciary for any Loan Party or any of its Affiliates or any other Person and (B)no Credit Party has any obligation to any Loan Party or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents, (iii)the Credit Parties may be engaged in a broad range of transactions that involve interests that differ from those of the Loan Parties and their Affiliates, and no Credit Party has any obligation to disclose any of such interests to any Loan Party or its Affiliates and (iv)the Credit Parties have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and each of the Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate. To the fullest extent permitted by law, each Loan Party hereby waives and releases any claims that it may have against any Credit Party with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby."
"11.19Attachments. The exhibits, schedules and annexes attached to this Agreement are incorporated herein and shall be considered a part of this Agreement for the purposes stated herein; except, that, in the event of any conflict between any of the provisions of such exhibits and the provisions of this Agreement, the provisions of this Agreement shall prevail."
"Capital Lease Obligations 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 on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP."
"Change in Law means the occurrence after the date of this Agreement of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) compliance by the Lender (or, for purposes of Section 2.13(b), by any lending office of the Lender or by the Lenders holding company, if any) with any request, guideline, rule, requirement or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that, notwithstanding anything herein to the contrary, (x) the Dodd- Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements or directives thereunder or issued in connection therewith or in the implementation thereof, and (y) all requests, rules, guidelines, requirements or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the"
"Excluded Taxes means any of the following Taxes imposed on or with respect to the Lender or required to be withheld or deducted from a payment to the Lender: (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 the Lender being organized under the laws of, or having its principal office or its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of the Lender with respect to an applicable interest in a Loan, Letter of Credit or Commitment pursuant to a law in effect on the date on which (i) the Lender acquires such interest in the Loan, Letter of Credit or Commitment or (ii) the Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.15, amounts with respect to such Taxes were payable either to the Lenders assignor immediately before the Lender acquired the applicable interest in such Loan, Letter of Credit or Commitment or to the Lender immediately before it changed its lending office and (c) Taxes attributable to a Lenders failure to comply with Section 2.15(g) and (d) any U.S. federal withholding Taxes imposed under FATCA."
"FATCA means Sections 1471 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), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code."
"Impairment shall mean, with respect to any Loan Document or governmental approval or Regulatory Approval, (a) the rescission, early termination, cancellation, repeal or invalidity thereof, (b) the suspension or injunction thereof, (c) the inability to satisfy in a timely manner stated conditions to effectiveness of such Loan Document, governmental approval or Regulatory Approval in whole or in part or (d) in the case of any governmental approval or Regulatory Approval only, the amendment, modification or supplementation thereof. The verb Impair shall have a correlative meaning."
"Interest Period means with respect to any Eurodollar Borrowing, the period commencing on the date of such Eurodollar Borrowing and ending on the numerically corresponding day in the calendar month that is one, three or six months thereafter, as the Borrower 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"
"Interpolated Rate means, at any time, for any Interest Period, the rate per annum (rounded upward to four decimal places) determined by the Lender (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest period (for which the LIBO Screen Rate is available) that is shorter than the Impacted Interest Period and (b) the LIBO Screen Rate for the shortest period (for which the LIBO Screen Rate is available) that exceeds the Impacted Interest Period, in each case, at such time."
"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 pages LIBOR01 or LIBOR02 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 Lender 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 2.12 in the event that the Lender 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."
"Loan Documents means, collectively, this Agreement, each promissory note issued pursuant to this Agreement, any Letter of Credit application, the fee letter described in Section 2.10(c), and each other agreement, instrument, document and certificate identified in Section 4.01 executed and delivered to, or in favor of, the Lender and including each other consent, assignment, contract, notice, letter of credit agreement and each other written matter whether heretofore, now or hereafter executed by or on behalf of the Borrower, or any employee of the Borrower, and delivered to the Lender in connection with this Agreement or the transactions contemplated hereby. Any reference in this Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to this Agreement or such Loan Document as the same may be in effect at any and all times such reference becomes operative."
"Overnight Bank Funding Rate means, for any day, the rate comprised of both overnight federal funds and overnight Eurodollar borrowings by U.S.-managed banking offices of depository institutions (as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time) and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall commence to publish such composite rate)."
"(b)the business acquired in connection with such Acquisition is (i) located in the U.S., (ii) organized under applicable U.S. and state laws, and (iii) not engaged, directly or indirectly, in any line of business other than the businesses in which the Borrower is engaged on the Effective Date and any business activities that are substantially similar, related, or incidental thereto;"
"(a)direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the U.S. (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the U.S.), in each case maturing within one year from the date of acquisition thereof;"
"(b)Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower shall hand deliver or fax (or transmit by electronic communication, if arrangements for doing so have been approved by the Lender) to the Lender (reasonably in advance of the requested date of issuance, amendment, renewal or extension, but in any event no less than three (3) Business Days) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the"
"(c)Expiration Date. Each Letter of Credit shall expire (or be subject to termination or non-renewal by notice from the Lender to the beneficiary thereof) at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, including, without limitation, any automatic renewal provision, one year after such renewal or extension) and (ii) the date that is five Business Days prior to the Maturity Date."
"(a)Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section. The Borrower may elect different options with respect to different portions of the affected Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing."
"Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Lender so notifies the Borrower, then, so long as an Event of Default is continuing (i) no outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto."
"(c)The Borrower may from time to time reduce the Commitment; provided that (i) each reduction of the Commitment shall be in an amount that is an integral multiple of $1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not terminate or reduce the Commitment if, after giving effect to any concurrent prepayment of the Loans in accordance with Section 2.09, the Exposure would exceed the Commitment."
"(e)The Lender may request that Loans made by it be evidenced by a promissory note. In such event, the Borrower shall prepare, execute and deliver to the Lender a promissory note payable to the order of the Lender (or, if requested by the Lender, to the Lender and its registered assigns) and in a form approved by the Lender. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 8.04) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns)."
"(a)The Borrower agrees to pay to the Lender a commitment fee, which shall accrue at the Applicable Rate on the daily amount of the undrawn portion of the Commitment of the Lender during the period from and including the Effective Date to but excluding the date on which the Lenders Commitment terminates; it being understood that the LC Exposure shall be included in the drawn portion of the Commitment for purposes of calculating the commitment fee. 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 Commitment terminates, commencing on the first such date to occur after the date hereof. 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)."
"(d)Accrued interest on each Loan (for ABR Loans, accrued through the last day of the prior calendar month) shall be payable in arrears on each Interest Payment Date for such Loan and, in the case of Loans, upon termination of the Commitment; provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Loan prior to the end of the Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion."
"(e)All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding"
"(a)Withholding Taxes; Gross-Up; Payments Free of Taxes. Any and all payments by or on account of any obligation of the Borrower under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any such payment by a withholding agent, then the applicable withholding agent shall be"
"(B)any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower (in such number of copies as shall be requested by the Borrower) 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 Borrower), whichever of the following is applicable:"
"(3) 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 the form as reasonably determined by the Borrower to the effect 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 Borrower 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"
"(a)The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Sections 2.13, 2.14 or 2.15, or otherwise) prior to 2:00 p.m., Pacific time, on the date when due, in immediately available funds, without setoff or counterclaim. Any amounts received after such time on any date may, in the discretion of the Lender, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Lender at its offices at 10"
"SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect. No Plan is, or is reasonably expected to become, an at-risk plan within the meaning of Section 430 of the Code or Section 303 of ERISA."
"SECTION 3.11. Disclosure. The Borrower has disclosed to the Lender all agreements, instruments and corporate or other restrictions to which the Borrower or any Subsidiary is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. None of the reports, financial statements, certificates or other information furnished by or on behalf of the Borrower or any Subsidiary to the Lender in connection with the negotiation of this Agreement or any other Loan Document (as modified or supplemented by other information so furnished) contains any 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; provided that, with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time delivered and, if such projected financial information was delivered prior to the Effective Date, as of the Effective Date."
"SECTION 3.12. Material Agreements. All Material Agreements to which the Borrower or any Subsidiary is a party or is bound as of the date of this Agreement are listed on Schedule 3.12. Neither the Borrower nor any Subsidiary is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any Material Agreement to which it is a party."
"SECTION 3.13. Solvency. (a) Immediately after the consummation of the Transactions to occur on the Effective Date, (i) the fair value of the assets of the Borrower, at a fair valuation, will exceed its debts and liabilities, subordinated, contingent or otherwise; (ii) the present fair saleable value of the property of the Borrower will be greater than the amount that will be required to pay the probable liability of its debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) the Borrower will be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) Borrower will not have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted after the Effective Date."
"SECTION 3.14. Insurance. As of the Effective Date, all premiums in respect of the Borrowers and its Subsidiaries insurance have been paid. The Borrower believes that the insurance maintained by or on behalf of the Borrower and its Subsidiaries is adequate and is customary for companies engaged in the same or similar businesses operating in the same or similar locations."
"(c)Closing Certificates; Certified Certificate of Incorporation; Good Standing Certificates. The Lender shall have received (i) a certificate of the Borrower, dated the Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors, members or other body authorizing the execution, delivery and performance of the Loan Documents to which it is a party, (B) identify by name and title and bear the signatures of the officers of the Borrower authorized to sign the Loan Documents to which it is a party and its Financial Officers, and (C) contain appropriate attachments, including the charter, articles or certificate of organization or incorporation of the Borrower certified by the relevant authority of the jurisdiction of organization of the Borrower and a true and correct copy of its bylaws or operating, management or partnership agreement, or other organizational or governing documents, and (ii) a long form good standing certificate for the Borrower from its jurisdiction of organization."
"(a)The representations and warranties of the Borrower set forth in the Loan Documents shall be true and correct in all material respects with the same effect as though made on and as of the date of such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be required to be true and correct in all respects)."
"(h)promptly after any request therefor by the Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that the Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if the Borrower or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents and notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof."
"damages in excess of $5,000,000, (ii) seeks injunctive relief, (iii) is asserted or instituted against any Plan, its fiduciaries or its assets, (iv) alleges criminal misconduct by the Borrower or any Subsidiary, (v) alleges the violation of, or seeks to impose remedies under any Environmental Law or related Requirement of Law, or seeks to impose Environmental Liability, in each case where such violation, remedy or liability could reasonably be expected to result in a Material Adverse Effect, or (vi) asserts liability on the part of the Borrower or any Subsidiary in excess of $5,000,000 in respect of any tax, fee, assessment, or other governmental charge;"
"(a)The Borrower will, and will cause each Subsidiary to, (i) comply with each Requirement of Law applicable to it or its property (including, without limitation, Environmental Laws) and (ii) perform in all material respects its obligations under the Material Agreements to which it is a party. The Borrower will maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions."
"(a)Credit will be used only for refinancing existing debt, working capital and general corporate purposes. No part of the proceeds of any Loan and no Letter of Credit will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations T, U and X."
"SECTION 5.10. Insurance. The Borrower will, and will cause each Subsidiary to, maintain with financially sound and reputable carriers having a financial strength rating of at least A- by A.M. Best Company insurance in such amounts (with no greater risk retention) and against such risks (including, without limitation, loss or damage by fire; theft, burglary, pilferage, larceny, embezzlement, and other criminal activities; business interruption; and general liability) and such other hazards, as is customarily maintained by companies of established repute engaged in the same or similar businesses operating in the same or similar locations. The Borrower will furnish to the Lender information in reasonable detail as to the insurance so maintained."
"SECTION 5.13. Further Assurances. Without limiting the foregoing, the Borrower will, and will cause each Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Lender such documents, agreements and instruments, and will take or cause to be taken such further actions, which may be required by any Requirement of Law or which the Lender may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents, all at the expense of the Borrower."
"(e)Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets (whether or not constituting purchase money Indebtedness), including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness in accordance with clause (f) below; provided that (i) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this clause (e) together with any Refinance Indebtedness in respect thereof permitted by clause (f) below, shall not exceed $10,000,000 at any time outstanding;"
"(f)Indebtedness which represents extensions, renewals, refinancing or replacements (such Indebtedness being so extended, renewed, refinanced or replaced being referred to herein as the Refinance Indebtedness) of any of the Indebtedness described in clauses (b) and (e), (i) and (q) hereof (such Indebtedness being referred to herein as the Original Indebtedness); provided that (i) such Refinance Indebtedness does not increase the principal amount or interest rate of the Original Indebtedness, (ii) any Liens securing such Refinance Indebtedness are not extended to any additional property of the Borrower or any Subsidiary, (iii) neither the Borrower nor any Subsidiary that is not originally obligated with respect to repayment of such Original Indebtedness is required to become obligated with respect to such Refinance Indebtedness, (iv) such Refinance Indebtedness does not result in a shortening of the average weighted maturity of such Original Indebtedness, (v) the terms of such Refinance Indebtedness are not less favorable to the obligor thereunder than the original terms of such Original Indebtedness and (vi) if such Original Indebtedness was subordinated in right of payment to the Obligations, then the terms and conditions of such Refinance Indebtedness must include subordination terms and conditions that are at least as favorable to the Lender as those that were applicable to such Original Indebtedness;"
"(b)any Lien on any property or asset of the Borrower or any Subsidiary existing on the date hereof and set forth in Schedule 6.02; provided that (i) such Lien shall not apply to any other property or asset of the Borrower or any Subsidiary and (ii) such Lien shall secure only those obligations which it secures on the date hereof and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;"
"(d)any Lien existing on any property or asset prior to the acquisition thereof by the Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the date hereof prior to the time such Person became a Subsidiary; provided that (i) such Lien is not created in contemplation of or in connection with such acquisi-tion or such Person becoming party to this Agreement, as the case may be, (ii) such Lien shall not apply to any other property or assets of the Borrower and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes party to this Agreement, as the case may be, and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;"
"(c)loans or advances made by the Borrower to its employees on an arms-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes up to a maximum of $500,000 to any employee and up to a maximum of $2,000,000 in the aggregate at any one time outstanding;"
"(j)investments, Equity Interests and other securities received in settlement of amounts due to Borrower or any of its Subsidiaries effected in the ordinary course of business or owing to Borrower or any of its Subsidiaries as a result of bankruptcy or insolvency proceedings involving an account debtor or upon the foreclosure or enforcement of any Lien in favor of Borrower or its Subsidiaries;"
"SECTION 6.05. Asset Sales. The Borrower will not, nor will it permit any Subsidiary to, sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it, nor will the Borrower permit any Subsidiary to issue any additional Equity Interest in such Subsidiary (other than to the Borrower or another Subsidiary in compliance with Section 6.04), except:"
"(e)any sale, lease or transfer constituting an easement, license, zoning restriction, rights-of-way or similar encumbrance on real property imposed by law or arising in the ordinary course of business that does not materially detract from the value of the affected property or interfere with the ordinary conduct of the business of the Borrower or any Subsidiary;"
"(o)sales, transfers and other dispositions of assets (other than Equity Interests in a Subsidiary unless all Equity Interests in such Subsidiary are sold) that are not permitted by any other clause of this Section, provided that the aggregate book value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (o) (together with the aggregate book value of all assets sold, transferred or otherwise disposed of in reliance on similar exceptions in the Holdco Credit Agreement and the SJWTX Credit Agreement) shall not exceed 10% of the book value of the total assets of Holdco and its Subsidiaries during any fiscal quarter of the Borrower or 25% of the book value of Holdcos and its Subsidiaries total assets from and after the Effective Date (measured, in each case, as of the end of the fiscal quarter then last ended);"
"SECTION 6.06. Sale and Leaseback Transactions. The Borrower will not, nor will it permit any Subsidiary to, enter into any arrangement, directly or indirectly, whereby it 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 sold or transferred (a Sale and Leaseback Transaction)."
"SECTION 6.10. Restrictive Agreements. The Borrower will not, nor will it permit any Subsidiary to, directly or indirectly enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon the ability of any Subsidiary to pay dividends or other distributions with respect to any Equity Interests or to make or repay loans or advances to the Borrower or any other Subsidiary or to Guarantee Indebtedness of the Borrower or any other Subsidiary; provided that (i) the foregoing shall not apply to restrictions and conditions imposed by any Requirement of Law or by any Loan Document, (ii) the foregoing shall not apply to restrictions and conditions existing on the date hereof identified on Schedule 6.10 (but shall apply to any extension or renewal of, or any amendment or modification expanding the scope of, any such restriction or condition), (iii) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending such sale, provided such restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is permitted hereunder, and (iv) restrictions or conditions on the ability of any Subsidiary to create, incur or permit to pay dividends or distributions that exist under the Note Agreement for Borrowers Series J Notes (the Senior Note Restriction) or any other agreement now existing or hereafter entered into under which Borrower has issued, or may hereafter issue, debt securities that includes any such restriction that are not more restrictive than the Senior Note Restriction."
"(e)the Borrower shall fail to observe or perform any covenant, condition or agree-ment contained in this Agreement or any other Loan Document (other than those specified in clause (a), (b) or (d) of this Article VII), and such failure shall continue unremedied for a period of (i) 15 days after the earlier of the Borrowers knowledge of such breach or notice thereof from the Lender if such breach relates to terms or provisions of Section 5.01, 5.02 (other than Section 5.02(a)), 5.03 through 5.07, or 5.10 of this Agreement or (ii) 30 days after the earlier of the Borrowers knowledge of such breach or notice thereof from the Lender if such breach relates to terms or provisions of any other Section of this Agreement or of any other Loan Document;"
"(k)one or more judgments for the payment of money in an aggregate amount in excess of $5,000,000 shall be rendered against the Borrower, 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 the Borrower or any Subsidiary to enforce any such judgment or the Borrower 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;"
"then, and in every such event (other than an event with respect to the Borrower described in clause (h), (i) or (j) of this Article), and at any time thereafter during the continuance of such event, the Lender may, by notice to the Borrower, take either or both of the following actions, at the same or different times: (i) terminate the Commitment, whereupon the Commitment shall terminate immediately, and (ii) declare the Loans then out-standing to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), whereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, in each case without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; and in the case of any event with respect to the Borrower described in clause (h), (i) or (j) of this Article, the Commitment shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, in each case without present-ment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower. Upon the occurrence and during the continuance of an Event of Default, the Lender may increase the rate of interest applicable to the Loans and other Obligations as set forth in this Agreement and exercise any rights and remedies provided to the Lender under the Loan Documents or at law or equity."
"IN THE EVENT ANY LEGAL PROCEEDING IS FILED IN A COURT OF THE STATE OF CALIFORNIA (THE COURT) BY OR AGAINST THE BORROWER OR THE LENDER IN CONNECTION WITH ANY CONTROVERSY, DISPUTE OR CLAIM DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY) (EACH, A CLAIM) AND THE WAIVER SET FORTH IN THE PRECEDING PARAGRAPH IS NOT ENFORCEABLE IN SUCH ACTION OR PROCEEDING, THE BORROWER AND THE LENDERS (BY ITS ACCEPTANCE HEREOF) AGREE AS FOLLOWS:"
"provided that (i) Administrative Agent shall have the right upon five (5) Business Days notice to Borrowers to reduce the advance rates against Eligible Receivables and Eligible Inventory in its reasonable discretion based on results from any field audit or appraisal of the Collateral and (ii) the Canadian Borrowing Base shall be computed only as against and on so much of such Collateral as is included on the Borrowing Base Certificates furnished from time to time by Borrowers pursuant to this Agreement and, if required by Administrative Agent pursuant to any of the terms hereof or any Collateral Document, as verified by such other evidence reasonably required to be furnished to Administrative Agent pursuant hereto or pursuant to any such Collateral Document."
"Canadian Revolver Percentage means, for each Lender, the percentage of the Canadian Revolving Credit Commitments represented by such Lenders Canadian Revolving Credit Commitment or, if the Canadian Revolving Credit Commitments have been terminated, the percentage held by such Lender (including through participation interests in Canadian Reimbursement Obligations) of the aggregate principal amount of all Canadian Revolving Loans and Canadian L/C Obligations then outstanding."
"(a) is an asset of such Person to which it has good and marketable title, is freely assignable, and is subject to a perfected, first priority Lien in favor of Administrative Agent free and clear of any other Liens (other than Liens permitted by Section 7.2(a) or (b) arising by operation of Law which are subordinate to the Liens in favor of Administrative Agent);"
"(e) does not contain or bear any intellectual property rights licensed to the relevant Loan Party unless the Administrative Agent is satisfied that it may sell or otherwise dispose of such inventory without (i) infringing the rights of such licensor, (ii) violating any contract with such licensor, or (iii) incurring any liability with respect to payment of royalties other than royalties incurred pursuant to sale of such inventory under the current licensing agreement;"
"(l) is not owed by an Account Debtor located in any jurisdiction which requires filing of a Notice of Business Activities Report or other similar report in order to permit such Loan Party to seek judicial enforcement in such jurisdiction of payment of such Receivable, unless such Loan Party has filed such report or qualified to do business in such jurisdiction;"
"Excluded Deposit Account means a deposit account the balance of which consists exclusively of (and is identified when established as an account established solely for the purposes of) (a) withheld income Taxes and federal, state, provincial, local or foreign employment Taxes in such amounts as are required in the reasonable judgment of a Loan Party to be paid to the Internal Revenue Service or any other U.S., federal, state, provincial, or local or foreign government agencies within the following month with respect to employees of such Loan Party, (b) amounts required to be paid over to an employee benefit plan pursuant to DOL Reg. Sec. 2510.3102 on behalf of or for the benefit of employees of any Loan Party, (c) amounts which are required to be pledged or otherwise provided as security pursuant to any requirement of any Governmental Authority or foreign pension requirement, and (d) amounts to be used to fund payroll obligations (including, but not limited to, amounts payable to any employment contracts between any Loan Party and their respective employees)."
"Excluded Property means (a) any equipment 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(b) and 7.2(d) 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; (b) 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 the PPSA or any other applicable Law) 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 the PPSA or any other applicable Law), 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; (c) in the case of any U.S. Loan Party, equity interests of any Foreign Subsidiary of such U.S. Loan Party which, if granted, would cause a material adverse effect on the U.S. Borrowers federal income tax liability, 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) all voting and nonvoting equity interests of any Subsidiary of any Canadian Loan Party, (y) all nonvoting equity interests of a firsttier Foreign Subsidiary owned by any U.S. Loan Party and (z) voting equity interests of a firsttier Foreign Subsidiary owned by any U.S. Loan Party representing not more than 66% of the total voting power of all outstanding voting equity interests of such Foreign Subsidiary, with equity 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 (c); and (d) Excluded Deposit Accounts."
"Excluded Swap Obligation means any Swap Obligation of a Loan Party (other than the direct counterparty of such Swap Obligation) if, and to the extent that, all or a portion of the Guarantee of such Loan Party of, or the grant by such 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 Loan Party's failure for any reason to constitute an ""eligible contract participant"" as defined in the Commodity Exchange Act at the time the Guarantee of such Loan Party or the grant of such security interest becomes 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 Guaranty or security interest is or becomes illegal."
"Fronting Exposure means, at any time there is a Defaulting Lender, (a) with respect to any L/C Issuer, such Defaulting Lenders Percentage of the outstanding L/C Obligations with respect to Letters of Credit issued by such L/C Issuer other than L/C Obligations as to which such Defaulting Lenders participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lenders Percentage of outstanding Swing Loans made by the Swing Line Lender other than Swing Loans as to which such Defaulting Lenders participation obligation has been reallocated to other Lenders."
"Guarantors means and includes (a) with respect to the Secured Obligations owing by the U.S. Loan Parties, each Domestic Subsidiary of the U.S. Borrower, and U.S. Borrower, in its capacity as a guarantor of the Secured Obligations of another U.S. Loan Party and (b) with respect to the Secured Obligations owing by the Canadian Loan Parties, each U.S. Loan Party and each Subsidiary of the Canadian Borrower, and Canadian Borrower, in its capacity as a guarantor of the Secured Obligations of another Canadian Loan Party."
"Hostile Acquisition means the acquisition of the capital stock or other equity interests of a Person through a tender offer or similar solicitation of the owners of such capital stock or other equity interests which has not been approved (prior to such acquisition) by resolutions of the Board of Directors of such Person or by similar action if such Person is not a corporation, or as to which such approval has been withdrawn."
(ii) no Interest Period with respect to any portion of the Term Loans shall extend beyond a date on which the relevant Borrower is required to make a scheduled payment of principal on the Term Loans unless the sum of (a) the aggregate principal amount of Term Loans that are Base Rate Loans plus (b) the aggregate principal amount of Term Loans that are Eurodollar Loans with Interest Periods expiring on or before such date equals or exceeds the principal amount to be paid on the Term Loans on such payment date;
"(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"
"Lenders means and includes BMO Harris Bank N.A., Bank of Montreal, and the other Persons listed on Schedule 1 and any other Person that shall have become party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the context requires otherwise, the term Lenders includes the Swing Line Lender."
"Material Indebtedness means Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more Hedging Agreements, of any one or more of the Loan Parties and its Subsidiaries in an aggregate principal amount exceeding $500,000 (or its U.S. Dollar Equivalent). For purposes of determining Material Indebtedness, the obligations of any Loan Party or any Subsidiary in respect of any Hedging Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that such Loan Party or such Subsidiary would be required to pay if such Hedging Agreement were terminated at such time."
"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 2.18)."
"(d) Borrowers shall have notified Administrative Agent and Lenders not less than 30 days prior to any such Acquisition and furnished to Administrative Agent and Lenders at such time reasonable details as to such Acquisition (including sources and uses of funds therefor), and 3 year historical financial information and 3 year pro forma financial forecasts of the Acquired Business on a standalone basis as well as of Borrowers on a consolidated basis after giving effect to the Acquisition and covenant compliance calculations reasonably satisfactory to Administrative Agent demonstrating satisfaction of the condition described in clause (g) below;"
"PPSA means the Personal Property Security Act, as the same may, from time to time, be enacted and in effect in Ontario, provided that, if attachment, perfection or priority of the Administrative Agents Liens are governed by the personal property security Laws of any jurisdiction other than Ontario, PPSA shall mean those personal property security Laws in such other jurisdiction for the purposes of the provisions of this Agreement related to such attachment, perfection or priority and for the definitions related to such provisions."
"Required Lenders means, as of the date of determination thereof, (a) if there are two (2) or fewer Lenders, 100% of such Lenders and (b) if there are more than two (2) Lenders, two (2) or more Lenders whose outstanding Loans and interests in Letters of Credit and Unused Revolving Credit Commitments constitute more than 50% of the sum of the total outstanding Loans, interests in Letters of Credit, and Unused Revolving Credit Commitments of the Lenders. For purposes of calculating Required Lenders, an Obligation denominated in Canadian Dollars and the Unused Revolving Credit Commitments for the Canadian Revolving Credit Commitments shall be calculated using the U.S. Dollar Equivalent of such amount. To the extent provided in the last paragraph of Section 11.3, the total credit exposure (i.e., the unused Commitment, Loans, and interests in Swing Loans and Letters of Credit) of any Defaulting Lender shall be disregarded in determining Required Lenders at any time."
"Secured Obligations means the Obligations, Hedging Liability, and Bank Product Obligations, in each case whether now existing or hereafter arising, due or to become due, direct or indirect, absolute or contingent, and howsoever evidenced, held or acquired (including all interest, costs, fees, and charges after the entry of an order for relief against any Loan Party in a case under the United States Bankruptcy Code or any similar proceeding, whether or not such interest, costs, fees and charges would be an allowed claim against such Loan Party in any such proceeding); provided, however, that, with respect to any Guarantor, Secured Obligations Guaranteed by such Guarantor shall exclude all Excluded Swap Obligations."
"Term Loan Commitment means, as to any Lender, the obligation of such Lender to maintain outstanding under this Agreement the principal balance of the term loan outstanding under the Existing Credit Agreement on the Closing Date in the amount set forth opposite such Lenders name on Schedule 1 attached hereto and made a part hereof. Borrowers and the Lenders acknowledge and agree that the Term Loan Commitments of the Lenders aggregate U.S. 9,625,000.00 on the date hereof."
"Total Consideration means, with respect to an Acquisition, the sum (but without duplication) of (a) cash paid or payable in connection with any Acquisition, whether paid at or prior to or after the closing thereof, (b) indebtedness payable to the seller in connection with such Acquisition, including all earnout and other future payment obligations subject to the occurrence of any contingency (provided that, in the case of any future payment subject to a contingency, such shall be considered part of the Total Consideration to the extent of the reserve, if any, required under GAAP to be established in respect thereof by any Loan Party or any Subsidiary of a Loan Party), (c) the fair market value of any equity securities, including any warrants or options therefor, delivered in connection with any Acquisition, (d) the present value of covenants not to compete entered into in connection with such Acquisition or other future payments which are required to be made over a period of time and are not contingent upon any Loan Party or its Subsidiary meeting financial performance objectives (exclusive of salaries paid in the ordinary course of business) (discounted at the Base Rate), but only to the extent not included in clause (a), (b) or (c) above, and (e) the amount of indebtedness assumed in connection with such Acquisition."
"Voting Stock of any Person means capital stock or other equity interests of any class or classes (however designated) having ordinary power for the election of directors or other similar governing body of such Person, other than stock or other equity interests having such power only by reason of the happening of a contingency."
"(g) Manner of Requesting a Letter of Credit. A Borrower shall provide at least five (5) Business Days advance written notice to Administrative Agent of each request for the issuance of a Letter of Credit, such notice in each case to be accompanied by an Application for such Letter of Credit properly completed and executed by such Borrower and, in the case of an extension or amendment or an increase in the amount of a Letter of Credit, a written request therefor, in a form acceptable to Administrative Agent and the relevant L/C Issuer, in each case, together with the fees called for by this Agreement. Administrative Agent shall promptly notify the relevant L/C Issuer of Administrative Agents receipt of each such notice (and such L/C Issuer shall be entitled to assume that the conditions precedent to any such issuance, extension, amendment or increase have been satisfied unless notified to the contrary by Administrative Agent or the Required Lenders) and such L/C Issuer shall promptly notify Administrative Agent and the Lenders of the issuance of the Letter of Credit so requested."
"(b) Eurodollar Loans. Each Eurodollar Loan made or maintained by a Lender shall bear interest during each Interest Period it is outstanding (computed on the basis of a year of 360 days and actual days elapsed) on the unpaid principal amount thereof from the date such Loan is advanced or continued, or created by conversion from a Base Rate Loan, until maturity (whether by acceleration or otherwise) at a rate per annum equal to the sum of the Applicable Margin plus the Adjusted LIBOR applicable for such Interest Period, payable by the relevant Borrower on each Interest Payment Date and at maturity (whether by acceleration or otherwise)."
"(a) Generally. Subject to the terms and conditions hereof, as part of the U.S. Revolving Credit, the Swing Line Lender may, in its discretion, make loans in U.S. Dollars to U.S. Borrower under the Swing Line (individually a Swing Loan and collectively the Swing Loans) which shall not in the aggregate at any time outstanding exceed the Swing Line Sublimit. Swing Loans may be availed of from time to time and borrowings thereunder may be repaid and used again during the period ending on the Termination Date. Each Swing Loan shall be in a minimum amount of U.S. $250,000 or such greater amount which is an integral multiple of U.S. $100,000. All Swing Loans outstanding under the Existing Credit Agreement on the Closing Date shall remain outstanding as the initial Borrowing of Swing Loans under this Agreement."
"(a) Optional Prepayments. Any Borrower may prepay in whole or in part (but, if in part, then: (i) if such Borrowing is of Base Rate Loans, in an amount not less than U.S. $100,000, (ii) if such Borrowing is of Canadian Prime Rate Loans, in an amount not less than the U.S. Dollar Equivalent of U.S. $100,000, (iii) if such Borrowing is of Eurodollar Loans, in an amount not less than U.S. $500,000, and (iv) in each case, in an amount such that the minimum amount required for a Borrowing pursuant to Section 2.5 and 2.7 remains outstanding) any Borrowing of Eurodollar Loans at any time upon three (3) Business Days prior notice by the relevant Borrower to Administrative Agent or, in the case of a Borrowing of Base Rate Loans or Canadian Prime Rate Loans, notice delivered by the relevant Borrower to Administrative Agent no later than 10:00 a.m. on the date of prepayment (or, in any case, such shorter period of time then agreed to by Administrative Agent), such prepayment, in each case, to be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans or Eurodollar Loans or Swing Loans, accrued interest thereon to the date fixed for prepayment plus any amounts due the Lenders under Section 3.4."
"(v) If at any time the U.S. Dollar Equivalent of the sum of the unpaid principal balance of the Canadian Revolving Loans and Canadian L/C Obligations then outstanding shall be in excess of the Canadian Revolving Credit Commitments, Canadian Borrower shall immediately and without notice or demand pay over the amount of the excess to Administrative Agent for the account of the Canadian Lenders as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Canadian Revolving Loans until paid in full with any remaining balance to be held by Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Canadian Letters of Credit."
"Section 2.10. Default Rate . Notwithstanding anything to the contrary contained herein, while any Event of Default exists or after acceleration, Borrowers shall pay interest (after as well as before entry of judgment thereon to the extent permitted by Law) on the principal amount of all Loans and Reimbursement Obligations, letter of credit fees and other amounts at a rate per annum equal to:"
"(c) for any Eurodollar Loan or any Swing Loan bearing interest at Administrative Agents Quoted Rate, the sum of 2.0% plus the rate of interest in effect thereon at the time of such default until the end of the Interest Period applicable thereto and, thereafter, at a rate per annum equal to the sum of 2.0% plus the Applicable Margin for Base Rate Loans plus the Base Rate from time to time in effect;"
"(c) U.S. Letter of Credit Fees. On the date of issuance or extension, or increase in the amount, of any U.S. Letter of Credit pursuant to Section 2.3 hereof, U.S. Borrower shall pay to the L/C Issuer for its own account a fronting fee equal to 0.125%% of the face amount of (or of the increase in the face amount of) such U.S. Letter of Credit. Quarterly in arrears, on the last day of each March, June, September, and December, commencing on the first such date occurring after the date hereof, U.S. Borrower shall pay to Administrative Agent, for the ratable benefit of the Lenders in accordance with their U.S. Revolver Percentages, a letter of credit fee at a rate per annum equal to the Applicable Margin (computed on the basis of a year of 360 days and the actual number of days elapsed) in effect during each day of such quarter applied to the daily average face amount of U.S. Letters of Credit outstanding during such quarter. In addition, U.S. Borrower shall pay to the L/C Issuer for its own account the L/C Issuers standard issuance, drawing, negotiation, amendment, assignment, and other fees and charges for each U.S. Letter of Credit as established by the L/C Issuer from time to time."
"(d) Canadian Letter of Credit Fees. On the date of issuance or extension, or increase in the amount, of any Canadian Letter of Credit pursuant to Section 2.3 hereof, Canadian Borrower shall pay to the L/C Issuer for its own account a fronting fee equal to 0.125%% of the face amount of (or of the increase in the face amount of) such Canadian Letter of Credit. Quarterly in arrears, on the last day of each March, June, September, and December, commencing on the first such date occurring after the date hereof, Canadian Borrower shall pay to Administrative Agent, for the ratable benefit of the Lenders in accordance with their Canadian Revolver Percentages, a letter of credit fee at a rate per annum equal to the Applicable Margin (computed on the basis of a year of 360 days and the actual number of days elapsed) in effect during each day of such quarter applied to the daily average face amount of Canadian Letters of Credit outstanding during such quarter. In addition, Canadian Borrower shall pay to the L/C Issuer for its own account the L/C Issuers standard issuance, drawing, negotiation, amendment, assignment, and other fees and charges for each Canadian Letter of Credit as established by the L/C Issuer from time to time."
"(C) With respect to any L/C Participation Fee not required to be paid to any Defaulting Lender pursuant to clause (B) above, Borrower shall (x) pay to each NonDefaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lenders participation in L/C Obligations or Swing Loans that has been reallocated to such NonDefaulting Lender pursuant to clause (iv) below, (y) pay to each L/C Issuer and Swing Line Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such L/C Issuers or Swing Line Lenders Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee."
"(iv) Reallocation of Participations to Reduce Fronting Exposure. All or any part of such Defaulting Lenders participation in L/C Obligations and Swing Loans shall be reallocated among the NonDefaulting Lenders in accordance with their respective Percentages of the relevant Commitments (calculated without regard to such Defaulting Lenders Commitments) but only to the extent that (x) the conditions set forth in Section 4.2 are satisfied at the time of such reallocation (and, unless Borrowers shall have otherwise notified Administrative Agent at such time, Borrowers shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate Revolving Loans and interests in L/C Obligations and Swing Loans of any NonDefaulting Lender to exceed the relevant Revolving Credit Commitment of such NonDefaulting Lender. 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 NonDefaulting Lender as a result of such NonDefaulting Lenders increased exposure following such reallocation."
"Section 2.20. Cash Collateral for Fronting Exposure At any time that there shall exist a Defaulting Lender, within one (1) Business Day following the written request of Administrative Agent or any L/C Issuer (with a copy to Administrative Agent) Borrower shall Cash Collateralize the L/C Issuers Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.19(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount."
"(g) Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the relevant Borrower and Administrative Agent, at the time or times reasonably requested by such Borrower or Administrative Agent, such properly completed and executed documentation reasonably requested by such Borrower or Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by a Borrower or Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by such Borrower or Administrative Agent as will enable such Borrower or 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 3.1(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the 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."
"(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to U.S. Borrower and 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 U.S. Borrower or Administrative Agent), executed originals 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 supplementary documentation as may be prescribed by applicable Law to permit U.S. Borrower or Administrative Agent to determine the withholding or deduction required to be made; and"
"(a) Administrative Agent determines that deposits in U.S. Dollars (in the applicable amounts) are not being offered to it in the interbank eurodollar market for such Interest Period, or that by reason of circumstances affecting the interbank eurodollar market adequate and reasonable means do not exist for ascertaining the applicable LIBOR, or"
"and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan, or to increase the cost to such Lender, such L/C Issuer or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender, L/C Issuer or other Recipient hereunder (whether of principal, interest or any other amount) then, upon request of such Lender, L/C Issuer or other Recipient, the relevant Borrower will pay to such Lender, L/C Issuer or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, L/C Issuer or other Recipient, as the case may be, for such additional costs incurred or reduction suffered."
"Section 5.1. Organization and Qualification . Each Loan Party (a) is duly organized, validly existing, and in good standing as a corporation, limited liability company, or partnership, as applicable, under the Laws of the jurisdiction in which it is organized, (b) has full and adequate power to own its Property and conduct its business as now conducted, and (c) is duly licensed or qualified and in good standing in each jurisdiction in which the nature of the business conducted by it or the nature of the Property owned or leased by it requires such licensing or qualifying, except, with respect to this clause (c), where the failure to do so would not have a Material Adverse Effect."
"Section 5.2. Subsidiaries . Each Subsidiary that is not a Loan Party (a) is duly organized, validly existing, and in good standing under the Laws of the jurisdiction in which it is organized, (b) has full and adequate power to own its Property and conduct its business as now conducted, and (c) is duly licensed or qualified and in good standing in each jurisdiction in which the nature of the business conducted by it or the nature of the Property owned or leased by it requires such licensing or qualifying, except, with respect to this clause (c), where the failure to do so would not have a Material Adverse Effect. Schedule 5.2 identifies each Subsidiary (including Subsidiaries that are Loan Parties), the jurisdiction of its organization, the percentage of issued and outstanding shares of each class of its capital stock or other equity interests owned by any Loan Party and its Subsidiaries and, if such percentage is not 100% (excluding directors qualifying shares as required by Law), a description of each class of its authorized capital stock and other equity interests and the number of shares of each class issued and outstanding. All of the outstanding shares of capital stock and other equity interests of each Subsidiary are validly issued and outstanding and fully paid and nonassessable and all such shares and other equity interests indicated on Schedule 5.2 as owned by the relevant Loan Party or another Subsidiary are owned, beneficially and of record, by such Loan Party or such Subsidiary free and clear of all Liens other than the Liens granted in favor of Administrative Agent pursuant to the Collateral Documents or otherwise permitted by this Agreement. There are no outstanding commitments or other obligations of any Subsidiary to issue, and no options, warrants or other rights of any Person to acquire, any shares of any class of capital stock or other equity interests of any Subsidiary."
"Section 5.5. Financial Reports . The consolidated balance sheet of Borrowers and their Subsidiaries as at December 31, 2015, and the related consolidated statements of income, retained earnings and cash flows of Borrowers and their Subsidiaries for the fiscal year then ended, and accompanying notes thereto, which financial statements are accompanied by the draft audit report of BDO USA, LLP, independent public accountants, heretofore furnished to Administrative Agent and the Lenders, fairly present the consolidated financial condition of Borrowers and their Subsidiaries as at said dates and the consolidated results of their operations and cash flows for the periods then ended in conformity with GAAP applied on a consistent basis. No Loan Party nor any of its Subsidiaries has contingent liabilities which are material to it other than as indicated on such financial statements or, with respect to future periods, on the financial statements furnished pursuant to Section 5.5."
"Section 5.7. Full Disclosure . The statements and information furnished to Administrative Agent and the Lenders in connection with the negotiation of this Agreement and the other Loan Documents and the commitments by the Lenders to provide all or part of the financing contemplated hereby do not contain any untrue statements of a material fact or omit a material fact necessary to make the material statements contained herein or therein not misleading, Administrative Agent and the Lenders acknowledging that as to any projections furnished to Administrative Agent and the Lenders, the Loan Parties only represent that the same were prepared on the basis of information and estimates the Loan Parties believed to be reasonable."
"Section 5.10. Good Title . The Loan Parties and their Subsidiaries have good and defensible title (or valid leasehold interests) to their assets as reflected on the most recent consolidated balance sheet of Borrowers and their Subsidiaries furnished to Administrative Agent and the Lenders (except for sales of assets in the ordinary course of business), subject to no Liens other than such thereof as are permitted by Section 7.2."
"Section 5.12. Taxes . All Tax returns required to be filed by any Loan Party or any Subsidiary in any jurisdiction have, in fact, been filed, and all Taxes upon any Loan Party or any Subsidiary of a Loan Party or upon any of its Property, income or franchises, which are shown to be due and payable in such returns, have been paid, except such Taxes, if any, as are being contested in good faith and by appropriate proceedings which prevent enforcement of the matter under contest and as to which adequate reserves established in accordance with GAAP have been provided. No Loan Party knows of any proposed additional Tax assessment against it or its Subsidiaries for which adequate provisions in accordance with GAAP have not been made on their accounts. Adequate provisions in accordance with GAAP for Taxes on the books of each Loan Party and each of its Subsidiaries have been made for all open years, and for its current fiscal period."
"Section 6.1. Maintenance of Business . Each Loan Party shall, and shall cause each of its Subsidiaries to, preserve and maintain its existence, except as otherwise provided in Section 7.4(c). Borrower shall, and shall cause each Subsidiary to, preserve and maintain its existence, except as otherwise provided in Section 7.4(c). Each Loan Party shall, and shall cause each Subsidiary to, preserve and keep in force and effect all licenses, permits, franchises, approvals, patents, trademarks, trade names, trade styles, copyrights, and other proprietary rights necessary to the proper conduct of its business where the failure to do so could reasonably be expected to have a Material Adverse Effect."
"(a) as soon as available, and in any event no later than 45 days after the last day of each calendar quarter, a Borrowing Base Certificate showing the computation of the U.S. Borrowing Base and the Canadian Borrowing Base in reasonable detail as of the close of business on the last day of such month, together with an accounts receivable and accounts payable aging, and, if available, inventory turnover report and inventory margin report, prepared by Borrowers and certified to by a Financial Officer of U.S. Borrower;"
"(c) as soon as available, and in any event no later than 120 days after the last day of each fiscal year of U.S. Borrower, a copy of the consolidated and consolidating balance sheet of Borrowers and their Subsidiaries as of the last day of the fiscal year then ended and the consolidated and consolidating statements of income, retained earnings, and cash flows of Borrowers and their Subsidiaries for the fiscal year then ended, and accompanying notes thereto, each in reasonable detail showing in comparative form the figures for the previous fiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA LLP or another firm of independent public accountants of recognized national standing, selected by U.S. Borrower and reasonably satisfactory to Administrative Agent and the Required Lenders, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of Borrowers and their Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;"
"(e) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10K, Form 10Q and Form 8K reports) filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange or the Securities and Exchange Commission or any successor agency;"
"(i) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, or (iii) the occurrence of any Default or Event of Default hereunder;"
"(j) with each of the financial statements delivered pursuant to subsections (b) and (c) above, a written certificate in the form attached hereto as Exhibit F signed by a Financial Officer of U.S. Borrower to the effect that to the best of such officers knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 7.11 (Financial Covenants); and"
"(c) If any Loan Party obtains actual knowledge or receives any written notice that any Loan Party, any Affiliate or any Subsidiary of any Loan Party is named on the then current OFAC SDN List (such occurrence, an OFAC Event), such Loan Party shall promptly (i) give written notice to Administrative Agent, the L/C Issuer, and the Lenders of such OFAC Event, and (ii) comply in all material respects with all applicable Laws with respect to such OFAC Event (regardless of whether the party included on the OFAC SDN List is located within the jurisdiction of the United States of America), including the OFAC Sanctions Programs, and each Loan Party hereby authorizes and consents to Administrative Agent, the L/C Issuer, and the Lenders taking any and all steps Administrative Agent, L/C Issuer, or the Lenders deem necessary, in their sole discretion, to avoid violation of all applicable Laws with respect to any such OFAC Event, including the requirements of the OFAC Sanctions Programs (including the freezing and/or blocking of assets and reporting such action to OFAC)."
"Section 6.10. Formation of Subsidiaries . Promptly upon the formation or acquisition of any Subsidiary, Borrowers shall provide Administrative Agent and the Lenders notice thereof and timely comply with the requirements of Section 6.12 (at which time Schedule 5.2 shall be deemed amended to include reference to such Subsidiary). Except for Foreign Subsidiaries existing on the Closing Date and identified on Schedule 5.2, no Loan Party, nor shall it permit any of its Subsidiaries to, form or acquire any Foreign Subsidiary outside of Canada."
"(a) Guaranties. The payment and performance of the Secured Obligations shall at all times be guaranteed by (a) with respect to the Secured Obligations owing by the U.S. Loan Parties, each Domestic Subsidiary of the U.S. Borrower, and U.S. Borrower, in its capacity as a guarantor of the Secured Obligations of another U.S. Loan Party and (b) with respect to the Secured Obligations owing by the Canadian Loan Parties, each U.S. Loan Party and each Subsidiary of the Canadian Borrower, and Canadian Borrower, in its capacity as a guarantor of the Secured Obligations of another Canadian Loan Party."
"(c) Liens on Real Property. In the event that any Loan Party owns or hereafter acquires any real property, such Loan Party shall promptly notify the Administrative Agent thereof and execute and deliver to Administrative Agent a charge, mortgage or deed of trust (together with any acknowledgment and direction or other documentation necessary in the opinion of the Administrative Agent) acceptable in form and substance to Administrative Agent for the purpose of granting to Administrative Agent (or a security trustee therefor) a Lien on such real property to secure the relevant Secured Obligations, shall pay all taxes, costs, and expenses incurred by Administrative Agent in recording such charge, mortgage or deed of trust, and shall supply to Administrative Agent at Borrowers cost and expense a survey, environmental report, hazard insurance policy, appraisal report, and a mortgagees policy of title insurance from a title insurer acceptable to Administrative Agent insuring the validity of such mortgage or deed of trust and its status as a first Lien (subject to Liens permitted by this Agreement) on the real property encumbered thereby and such other instrument, documents, certificates, and opinions reasonably required by Administrative Agent in connection therewith."
"(c) judgment liens and judicial attachment liens not constituting an Event of Default under Section 8.1(g) and the pledge of assets for the purpose of securing an appeal, stay or discharge in the course of any legal proceeding, provided that the aggregate amount of such judgment liens and attachments and liabilities of the Loan Parties and their Subsidiaries secured by a pledge of assets permitted under this subsection, including interest and penalties thereon, if any, shall not be in excess of $250,000 (or its U.S. Dollar Equivalent) at any one time outstanding;"
"(e) any interest or title of a lessor under any operating lease, including the filing of Uniform Commercial Code or PPSA financing statements solely as a precautionary measure in connection with operating leases entered into by any Loan Party or any Subsidiary of a Loan Party in the ordinary course of its business;"
"(f) easements, rightsofway, restrictions, and other similar encumbrances against real property incurred in the ordinary course of business which, in the aggregate, are not substantial in amount and which do not materially detract from the value of the Property subject thereto or materially interfere with the ordinary conduct of the business of any Loan Party or any Subsidiary of a Loan Party;"
"(e) investments (including debt obligations and equity interests) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business and upon the foreclosure with respect to any secured investment or other transfer of title with respect to any secured investment;"
"Section 7.9. Change in the Nature of Business . No Loan Party shall, nor shall it permit any of its Subsidiaries to, engage in any business or activity if as a result the general nature of the business of such Loan Party or any of its Subsidiaries would be changed in any material respect from the general nature of the business engaged in by it as of the Closing Date."
"(e) (i) any event occurs or condition exists (other than those described in subsections (a) through (d) above) which is specified as an event of default under any of the other Loan Documents, or (ii) any of the Loan Documents shall for any reason not be or shall cease to be in full force and effect or is declared to be null and void, or (iii) any of the Collateral Documents shall for any reason fail to create a valid and perfected first priority Lien in favor of Administrative Agent in any Collateral purported to be covered thereby except as expressly permitted by the terms hereof, or (iv) any Loan Party takes any action for the purpose of terminating, repudiating or rescinding any Loan Document executed by it or any of its obligations thereunder;"
"Section 8.3. Bankruptcy Defaults . When any Event of Default described in subsections (j) or (k) of Section 8.1 with respect to any Borrower has occurred and is continuing, then all outstanding Loans shall immediately become due and payable together with all other amounts payable under the Loan Documents without presentment, demand, protest or notice of any kind, the obligation of the Lenders to extend further credit pursuant to any of the terms hereof shall immediately terminate and Borrowers shall immediately deliver to Administrative Agent Cash Collateral in an amount equal to 110% of the aggregate amount of each Letter of Credit then outstanding (in the case of Canadian Borrower, its obligation to provide Cash Collateral being limited to the outstanding Canadian Letters of Credit), each Borrower acknowledging and agreeing that the Lenders would not have an adequate remedy at Law for failure by such Borrower to honor any such demand and that the Lenders, and Administrative Agent on their behalf, shall have the right to require each Borrower to specifically perform such undertaking whether or not any draws or other demands for payment have been made under any of the Letters of Credit. In addition, Administrative Agent may exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies available to it, the Lenders and the L/C Issuer under the Loan Documents or applicable Law or equity when any such Event of Default has occurred and is continuing."
"(c) As a result of the CAM Exchange, upon and after the CAM Exchange Date, each payment received by Administrative Agent pursuant to any Loan Document in respect of the Obligations, and each distribution made by Administrative Agent pursuant to any Collateral Document in respect of the Obligations, shall be distributed to the Lenders pro rata in accordance with their respective CAM Percentages. Any direct payment received by a Lender upon or after the CAM Exchange Date, including by way of setoff, in respect of an Obligation shall be paid over to Administrative Agent for distribution to the Lenders in accordance herewith."
"Section 9.10. Designation of Additional Agents . Administrative Agent shall have the continuing right, for purposes hereof, at any time and from time to time to designate one or more of the Lenders (and/or its or their Affiliates) as syndication agents, documentation agents, book runners, lead arrangers, arrangers, or other designations for purposes hereto, but such designation shall have no substantive effect, and such Lenders and their Affiliates shall have no additional powers, duties or responsibilities as a result thereof."
"Section 9.13. Authorization of Administrative Agent to File Proofs of Claim In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, 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 Administrative Agent shall have made any demand on Borrowers) shall be entitled and empowered, by intervention in such proceeding or otherwise:"
(g) any invalidity or unenforceability relating to or against any Loan Party or other obligor or any other guarantor for any reason of this Agreement or of any other Loan Document or any agreement relating to Hedging Liability or Bank Product Obligations or any provision of applicable Law or regulation purporting to prohibit the payment by any Loan Party or other obligor or any other guarantor of the principal of or interest on any Loan or any Reimbursement Obligation or any other amount payable under the Loan Documents or any agreement relating to Hedging Liability or Bank Product Obligations; or
"Section 10.3. Discharge Only upon Payment in Full; Reinstatement in Certain Circumstances . Each Guarantors obligations under this Section 10 shall remain in full force and effect until the Commitments are terminated, all Letters of Credit have expired, and the principal of and interest on the Loans and all other amounts payable by Borrowers and the other Loan Parties under this Agreement and all other Loan Documents and, if then outstanding and unpaid, all Hedging Liability and Bank Product Obligations shall have been paid in full. If at any time any payment of the principal of or interest on any Loan or any Reimbursement Obligation or any other amount payable by any Loan Party or other obligor or any guarantor under the Loan Documents or any agreement relating to Hedging Liability or Bank Product Obligations is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy, or reorganization of such Loan Party or other obligor or of any guarantor, or otherwise, each Guarantors obligations under this Section 10 with respect to such payment shall be reinstated at such time as though such payment had become due but had not been made at such time."
"Section 10.4. Subrogation . Each Guarantor agrees it will not exercise any rights which it may acquire by way of subrogation by any payment made hereunder, or otherwise, until all the Secured Obligations shall have been paid in full subsequent to the termination of all the Commitments and expiration of all Letters of Credit. If any amount shall be paid to a Guarantor on account of such subrogation rights at any time prior to the later of (x) the payment in full of the Secured Obligations and all other amounts payable by the Loan Parties hereunder and the other Loan Documents and (y) the termination of the Commitments and expiration of all Letters of Credit, such amount shall be held in trust for the benefit of Administrative Agent, the Lenders, and the L/C Issuer (and their Affiliates) and shall forthwith be paid to Administrative Agent for the benefit of the Lenders and L/C Issuer (and their Affiliates) or be credited and applied upon the Secured Obligations, whether matured or unmatured, in accordance with the terms of this Agreement."
"Section 10.7. Limit on Recovery . Notwithstanding any other provision hereof, the right of recovery against each Guarantor under this Section 10 shall not exceed $1.00 less than the lowest amount which would render such Guarantors obligations under this Section 10 void or voidable under applicable Law, including, without limitation, fraudulent conveyance law."
"Section 10.10. 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 Loan Party 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 Section for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section, 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 discharged in accordance with Section 10.3. Each Qualified ECP Guarantor intends that this Section constitute, and this Section 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."
"Unless Administrative Agent otherwise prescribes, (i) notices and other communications sent to an email 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 email or other written acknowledgement), 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 email address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email 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."
"(ii) The Platform is provided as is and as available. The Agent Parties (as defined below) do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including, without limitation, 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 Communications or the Platform. In no event shall Administrative Agent or any of its Related Parties (collectively, the Agent Parties) have any liability to any Borrower or the other Loan Parties, 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 (whether in tort, contract or otherwise) arising out of any Borrowers, any Loan Partys or Administrative Agents transmission of communications through the Platform. Communications means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed to Administrative Agent, any Lender or any L/C Issuer by means of electronic communications pursuant to this Section, including through the Platform."
"(v) No Assignment to Certain Persons. No such assignment shall be made to (A) any Borrower or any other Loan Party or any Loan Partys Affiliates or Subsidiaries or (B) 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 (B)."
"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 described in Section 11.3 that expressly relate to amendments requiring the unanimous consent of the Lenders in the Facility in which such Participant participates. Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.1, 3.4, and 3.5 (subject to the requirements and limitations therein, including the requirements under Section 3.1(g) (it being understood that the documentation required under Section 3.1(g) 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 paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 2.18 and 3.7 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 3.1 or 3.4, 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 relevant Borrowers request and expense, to use reasonable efforts to cooperate with Borrower to effectuate the provisions of Section 2.18 with respect to any Participant. To the extent permitted by Law, each Participant also shall be entitled to the benefits of Section 11.6 (Right of Setoff) as though it were a Lender; provided that such Participant agrees to be subject to Section 11.7 (Sharing of Payments by Lenders) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the relevant 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 Section 5f.1031(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, Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register."
"(i) no amendment or waiver pursuant to this Section 11.3 shall (A) increase any Commitment of any Lender without the consent of such Lender or (B) reduce the amount of or postpone the date for any scheduled payment of any principal of or interest on any Loan or of any Reimbursement Obligation or of any fee payable hereunder without the consent of the Lender to which such payment is owing or which has committed to make such Loan or Letter of Credit (or participate therein) hereunder; provided, however, that only the consent of the Required Lenders shall be necessary (i) to amend the default rate provided in Section 2.10 or to waive any obligation of any Borrower to pay interest or fees at the default rate as set forth therein or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest or any fee payable hereunder;"
"(ii) no amendment or waiver pursuant to this Section 11.3 shall, unless signed by each Lender, change the definition of Required Lenders, change the provisions of this Section 11.3, change Section 11.3 in a manner that would affect the ratable sharing of setoffs required thereby, change the application of payments contained in Section 2.13 or 8.5, release any material Guarantor or all or substantially all of the Collateral (except as otherwise provided for in the Loan Documents), or affect the number of Lenders required to take any action hereunder or under any other Loan Document;"
"Notwithstanding anything to the contrary herein, (1) 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 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 more adversely than other affected Lenders shall require the consent of such Defaulting Lender, (2) if Administrative Agent and Borrowers have jointly identified an obvious error or any error or omission of a technical nature, in each case, in any provision of the Loan Documents, then Administrative Agent and Borrowers shall be permitted to amend such provision, and (3) guarantees, collateral security documents and related documents executed by any Borrower or any other Loan Party in connection with this Agreement may be in a form reasonably determined by Administrative Agent and may be amended, supplemented or waived without the consent of any Lender if such amendment, supplement or waiver is delivered in order to (x) comply with local Law or advice of local counsel, (y) cure ambiguities, omissions, mistakes or defects or (z) cause such guarantee, collateral security document or other document to be consistent with this Agreement and the other Loan Documents."
"(b) Indemnification by the Loan Parties. Each Loan Party shall indemnify Administrative Agent (and any subagent thereof), each Lender and each L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an Indemnitee) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any Person (including any third party or any Borrower or any other Loan Party) arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of Administrative Agent (and any subagent thereof), any Swing Line Lender and L/C Issuer, and their Related Parties, the administration and enforcement of this Agreement and the other Loan Documents (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), (ii) any 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), (iii) any Environmental Claim or Environmental Liability, including with respect to the actual or alleged presence or Release of Hazardous Materials on or from any property owned or operated by any Loan Party or any of its Subsidiaries, related in any way to any Loan Party or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by any Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto (including, without limitation, any settlement arrangement arising from or relating to the foregoing); 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 court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by any Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitees obligations hereunder or under any other Loan Document, if such Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction. This subsection (b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any nonTax claim."
"Section 11.7. 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 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 11.12. Severability of Provisions. Any provision of any Loan Document which is unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. All rights, remedies and powers provided in this Agreement and the other Loan Documents may be exercised only to the extent that the exercise thereof does not violate any applicable mandatory provisions of Law, and all the provisions of this Agreement and other Loan Documents are intended to be subject to all applicable mandatory provisions of Law which may be controlling and to be limited to the extent necessary so that they will not render this Agreement or the other Loan Documents invalid or unenforceable."
"Section 11.14. Excess Interest . Notwithstanding any provision to the contrary contained herein or in any other Loan Document, no such provision shall require the payment or permit the collection of any amount of interest (including all amounts comprising interest as defined in the Criminal Code (Canada)) in excess of the maximum amount of interest permitted by applicable Law (including, the criminal rate as defined in the Criminal Code (Canada)) to be charged for the use or detention, or the forbearance in the collection, of all or any portion of the Loans or other obligations outstanding under this Agreement or any other Loan Document (Excess Interest). If any Excess Interest is provided for, or is adjudicated to be provided for, herein or in any other Loan Document, then in such event (a) the provisions of this Section shall govern and control, (b) no Borrower nor any guarantor or endorser shall be obligated to pay any Excess Interest, (c) any Excess Interest that Administrative Agent or any Lender may have received hereunder shall, at the option of Administrative Agent, be (i) applied as a credit against the then outstanding principal amount of Obligations hereunder and accrued and unpaid interest thereon (not to exceed the maximum amount permitted by applicable Law), (ii) refunded to the relevant Borrower, or (iii) any combination of the foregoing, (d) the interest rate payable hereunder or under any other Loan Document shall be automatically subject to reduction to the maximum lawful contract rate allowed under applicable usury Laws (the Maximum Rate), and this Agreement and the other Loan Documents shall be deemed to have been, and shall be, reformed and modified to reflect such reduction in the relevant interest rate, and (e) no Borrower nor any guarantor or endorser shall have any action against Administrative Agent or any Lender for any damages whatsoever arising out of the payment or collection of any Excess Interest. Notwithstanding the foregoing, if for any period of time interest on any of a Borrowers Obligations is calculated at the Maximum Rate rather than the applicable rate under this Agreement, and thereafter such applicable rate becomes less than the Maximum Rate, the rate of interest payable on such Borrowers Obligations shall remain at the Maximum Rate until the Lenders have received the amount of interest which such Lenders would have received during such period on such Borrowers Obligations had the rate of interest not been limited to the Maximum Rate during such period."
"(b) Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the United States District Court for the Northern District of Illinois and of any Illinois State court sitting in the City of Chicago, and any appellate court from any thereof, in any action or proceeding arising out of or relating to any Loan Document, or for recognition or enforcement of any judgment, and each party hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such Illinois State court or, to the extent permitted by applicable Legal Requirements, in such federal court. Each party hereto hereby 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 applicable Legal Requirements. Nothing in this Agreement or any other Loan Document or otherwise shall affect any right that Administrative Agent, the L/C Issuer or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against any Borrower or any other Loan Party or its respective properties in the courts of any jurisdiction."
"This U.S. Revolving Note (this Note) is one of the U.S. Revolving Notes referred to in the Amended and Restated Multicurrency Credit Agreement dated effective as of December 31, 2015, among 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), and this Note and the holder hereof are entitled to all the benefits and security provided for thereby or referred to therein, to which Credit Agreement reference is hereby made for a statement thereof. All defined terms used in this Note, except terms otherwise defined herein, shall have the same meaning as in the Credit Agreement. This Note shall be governed by and construed in accordance with the internal Laws of the State of Illinois."
"Credit Agreement: Amended and Restated Multicurrency Credit Agreement, dated effective as of December 31, 2015, by and among Borrowers, 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) | ---|--- 6."
"REPRESENTATIONS AND WARRANTIES. Section 1.1. Assignor[s]. [The][Each] 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 Borrowers, any of their Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document, or (iv) the performance or observance by Borrowers, any of their Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document."
"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."
"Pursuant to the provisions of Section 3.1 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 ten percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code."
"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."
"The Revolver Increase shall be effective when the executed consent of Administrative Agent is received or otherwise in accordance with Section 2.21 of the Credit Agreement, but not in any case prior to ___________________, ____. It shall be a condition to the effectiveness of the Revolver Increase that all expenses referred to in Section 2.21 of the Credit Agreement shall have been paid."
"U.S. Borrowers promissory note in the amount of $200,000 payable to GO PullIt, LLC, a Florida limited liability company (the Company), in payment of the balance of the purchase price due for the purchase of a five percent (5%) membership interest in the Company, pursuant to that certain GO PullIt Purchase and Option Agreement dated May 19, 2015 among U.S. Borrower, Adam Mervis, Michael Mervis, Brian Shell, Jason Finley, Michael Stanley, and the Company"
"Five percent (5%) membership interest owned by U.S. Borrower in GO PullIt, LLC, a Florida limited liability company (the Company), and the option to acquire any or all of the remaining membership interests of the Company, pursuant to that certain GO PullIt Purchase and Option Agreement dated May 19, 2015 among U.S. Borrower, Adam Mervis, Michael Mervis, Brian Shell, Jason Finley, Michael Stanley, and the Company (it being agreed that any exercise of such option shall be subject to compliance with the Credit Agreement)."
"Sanctioned Person means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or by the United Nations Security Council, the European Union or, any European Union member state, Her Majestys Treasury of the United Kingdom or other relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b)."
"Specified Asset Sale Amount shall mean, with respect to any Specified Asset Sale, an amount equal to (i) 100% of the amount of cash proceeds received by the Borrower or any Restricted Subsidiary in respect of such Specified Asset Sale on or after the Fifth Amendment Effective Date minus (ii) the amount, if any, by which the Borrowing Base is reduced pursuant to Section 2.14(f) or Section 2.14(g) after the Fifth Amendment Effective Date as a result of such Specified Asset Sale."
"(i) To correct a scriveners error in the Borrowing Base Agreement and Fourth Amendment to Credit Agreement dated as of April 6, 2015, the reference to Amendment Effective Date in the definition of Term Loan Early Maturity Test Date set forth in Section 1.1 of the Credit Agreement will hereby be amended by deleting such reference and inserting in lieu thereof April 6, 2015."
"(b) 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 directors and to the knowledge of the Borrower its employees and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary or to the knowledge of the Borrower or such"
"Subsidiary any of their respective directors, officers or employees, or (b) to the knowledge of the Borrower, 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 or other transaction contemplated by this Agreement will violate any Anti-Corruption Law or applicable Sanctions."
"Notwithstanding the foregoing paragraph, the Borrower shall not be required to comply with the foregoing paragraph during the period from (and including) the Fifth Amendment Effective Date until (and including) March 31, 2018 (such period, the Amendment Period). During the Amendment Period, the Borrower will not permit the Consolidated First Lien Debt to EBITDAX Ratio for any Test Period ending on the last day of each fiscal quarter of the Borrower ending during the Amendment Period to be greater than 3.50 to 1.00. From and after the fiscal quarter ending June 30, 2018, the Borrower shall be required to comply with the preceding paragraph once again."
"Section 3.3. Stipulations Regarding Redeterminations. The Borrower, on the one hand, and the Administrative Agent and the Lenders, on the other hand, agree that the redetermination and adjustment of the Borrowing Base pursuant to this Article III shall constitute both the regularly scheduled semi-annual April 2016 redetermination of the Borrowing Base pursuant to Section 2.14 of the Credit Agreement and the adjustment of the Borrowing Base in connection with the disposition of the Disposed Assets pursuant to Section 2.14(g) of the Credit Agreement (notwithstanding that such disposition has not been consummated as of the Amendment Effective Date)."
"Section 4.2. Ratification. Each of the Borrower and Holdings (for itself and its applicable Subsidiaries that are Credit Parties) hereby (a) ratifies and confirms all of the Obligations under the Credit Agreement (as amended hereby) and the other Credit Documents related thereto, and, in particular, affirms that, after giving effect to this Amendment, the terms of the Security Documents secure, and will continue to secure, all Obligations thereunder, and (b) represents and warrants to the Lenders that as of the effectiveness of this Amendment (i) all of the representations and warranties contained in the Credit Document to which it is a party are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of such date (except where such representations and warranties expressly relate to an earlier date, in which case, such representations and warranties shall have been true and correct in all material respects as of such earlier date) and (ii) no Default or Event of Default has occurred and is continuing."
"(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 related loan document; or"
"Novated Loan Balance means, subject to clause 10.2 and subject to the approval of the New Borrower pursuant to clause 3.5, the outstanding principal amount of the Loan owing by the Existing Borrower on the Novation Effective Date (and reflecting the amount of any Advances drawndown or deemed drawndown by the Existing Borrower in accordance with the terms of the Principal Agreement on such date but excluding any Unsecured Advances) up to the amount not exceeding the lower of:"
"Consent and agreement of the Finance Parties ---|--- Subject to the other provisions of this Agreement and upon reliance of each of the representations and warranties in clause 8, the Facility Agent, the Security Trustee, the Global Coordinator, the French Coordinating Bank, the ECA Agent, the Mandated Lead Arrangers, the Arrangers and the Lenders agree with the Existing Borrower and the New Borrower on the Novation Effective Date (and at the Novation Effective Time), that they consent to the novation, amendment and restatement of the Principal Agreement on the terms set out in clauses 3 and 4 and to the conversion of the currency of the Loan and to the making of the Additional Advances in accordance with clause 5."
"No liability ---|--- The Finance Parties hereby confirm to the New Borrower, that except for the obligations in respect of the Novated Loan Balance which are, with effect from the Novation Effective Time, to be assumed by the New Borrower pursuant to clause 3.2, the New Borrower shall have no liability, and the Finance Parties shall have no recourse whatsoever to the New Borrower or any of its assets, in respect of any liabilities, obligations, claims and demands whatsoever under or touching or concerning the Principal Agreement or in respect of anything done or omitted to be done under or in connection therewith."
"the relevant amount of such prepayment may, if requested by the New Borrower, be deducted from the amount of the Additional Advances to be made available to the New Borrower on the Novation Effective Date and, where the New Borrower has requested that the prepayment required under this clause 3.6 be deducted from the Additional Advances, an actual payment shall only be required by the New Borrower if the prepayment amount exceeds the aggregate amount of the Additional Advances to be advanced to the New Borrower; and ---|--- (b)"
Currency conversion ---|--- On the Novation Effective Date the Additional Advances to be drawndown by the New Borrower on the Novation Effective Date shall be made available in Dollars in accordance with the following provisions of this clause 5 and the Novated Credit Agreement and thereafter the Novated Loan Balance shall be converted from euro to Dollars by reference to the US Dollar Equivalent (as defined in the Novated Credit Agreement) of such amount.
"It is acknowledged that Coface have confirmed that they will agree to continue, reinstate or reissue the Coface cover in circumstances where this clause applies and the New Borrower is to draw the Facility on the Actual Delivery Date. Formal consent of Coface will be required in relation to (i) any availability of the Facility to the New Borrower before the Actual Delivery Date and (ii) the arrangements and the terms of any new or novated facility agreement, such consent not to be unreasonably withheld. The New Borrower and the Finance Parties agree to co-operate in good faith and use reasonable efforts to procure such consent."
"the amounts payable to the Lenders in respect of arrangement fees in respect of the Facility (as set out in the relevant Fee Letter attached to any Fee Letter signed by the New Borrower) and the Coface Premium payable to Coface, shall continue to be payable in full and the New Borrower shall be required, where it does not currently have responsibility for the full payment of all those amounts, to assume responsibility for the payment of such amounts (it being acknowledged that the New Borrower shall not have any responsibility for payment of amounts of Coface Premium already paid to Coface pursuant to the Receivable Purchase Agreement where these amounts have not been (or will not be) refunded due to the cancellation of the Facility); and ---|--- (ii)"
it shall be liable to pay commitment fees on the basis set out in Section 3.4 (Commitment Fees) of the Novated Credit Agreement (but without double counting in relation to any amounts due under clause 10.1). ---|--- The Finance Parties agree that this clause 5.4 shall apply notwithstanding that the Initial Effective Date may not occur.
"by no later than the Novation Effective Time, the Facility Agent, or its duly authorised representative, shall have received each of the documents and evidence set out in section 5.1 of the Novated Credit Agreement (but subject to the proviso to Section 5.1.10) and confirmation in writing from the New Borrower to the Facility Agent that it will take delivery of the Vessel under the Building Contract and the actual date on which delivery shall occur, which confirmation shall be given immediately prior to the occurrence of the Novation Effective Time. ---|--- "
The New Borrower shall be deemed to make the representations and warranties set out in the said Article VI on the Novation Effective Date in accordance with the terms of the Novated Credit Agreement (and as if references therein to this Agreement were to this Agreement and the Novated Credit Agreement).
"New Borrower covenants ---|--- The New Borrower undertakes with each of the Finance Parties that, from the date of this Agreement, the New Borrower will comply with its obligations under the following Sections of the Novated Credit Agreement (as if references in those Sections to the Novation Effective Date referred to the Signing Date):"
"it intends to claim for any increased cost under Sections 4.3 (Increased LIBO Rate Loan Costs, etc.) or 4.5 (Increased capital costs) or for any Covered Taxes (as defined in the Novated Credit Agreement) under Section 4.6 (Taxes) or reserve costs under Section 4.7 (Reserve costs) of the Novated Credit Agreement for the period falling after the Novation Effective Date; or ---|--- (b)"
"Cancellation ---|--- The New Borrower may, by written notice to the Facility Agent at any time prior to the date falling not less than ten days prior to the anticipated Actual Delivery Date (and which shall also be a minimum period of not less than 10 Banking Days prior to the proposed date of cancellation set out in the New Borrowers notice, the Notified Cancellation Date), without premium or penalty (except as may be required by clause 10.5), terminate, or from time to time reduce, the Commitment (as defined in the Novated Credit Agreement). Any such termination or reduction of the Commitment shall be applied to the respective Commitments of the Lenders, pro rata according to the amounts of their respective Commitments. Where the Commitment is cancelled in full or in part the New Borrower shall pay on the date of such cancellation all amounts, including any fees and commissions which have accrued but remain unpaid at such date and any breakage costs payable pursuant to clause 10.5, which are due and owing by the New Borrower to the Finance Parties at such date pursuant to this Agreement or any Fee Letter or any mandate letter entered into in connection with the Transaction Documents to which the New Borrower is a party to the extent that such amounts are the subject of invoices from the Facility Agent to the New Borrower received by the New Borrower not less than two Banking Days prior to the date of such cancellation (the Invoiced Amounts). It is acknowledged and agreed that where the Commitment is cancelled in full the effectiveness of any such proposed cancellation shall be conditional on the payment of the Invoiced Amounts (but on the basis that provided the Invoiced Amounts are paid when due, the New Borrowers obligation to pay commitment fees under clause 10.1 shall cease on the Notified Cancellation Date). The ECA Agent shall in such circumstances use reasonable endeavours to provide the New Borrower with both an indicative calculation of any potential breakage costs arising from the proposed cancellation as soon as practicable following receipt of the cancellation notice and an invoice in"
"respect of any actual breakage amounts as soon as practicable prior to the Notified Cancellation Date. If no invoices have been issued for any such amounts (the Non-Invoiced Amounts), such Non-Invoiced Amounts shall be payable by the New Borrower following the Notified Cancellation Date upon the second Banking Day following receipt of the relevant invoices. Where the Commitment is cancelled in part, the allocation of such cancellation between the Novated Loan Balance and the Additional Advances shall be determined at the relevant time of cancellation at the New Borrowers election made in its discretion after consultation with the other parties concerned including Natixis DAI and Coface (but on the basis that any allocation of any such partial cancellation cannot cause the Novated Loan Balance to be reduced to zero and will be subject to Coface confirming it has no objection to such allocation). In addition, where the Commitment is cancelled in part, any amounts required to be paid by the New Borrower under this clause in respect of such cancellation which remain outstanding at the Novation Effective Time shall be treated as a liability of the New Borrower under the Novated Credit Agreement."
the Existing Borrower and the Finance Parties hereby acknowledge that the Loan will be prepaid in full on the Actual Delivery Date in accordance with clause 4.3(e) of the Principal Agreement but that the Principal Agreement shall otherwise continue in force in accordance with its terms and the Facility will continue to be available to the Existing Borrower pursuant to the terms of the Principal Agreement. ---|--- 10.4
It is acknowledged and agreed for all purposes of this Agreement and the Novated Credit Agreement that the New Borrower shall not be liable to pay (or indemnify any Indemnified Party under Section 11.4 of the Novated Credit Agreement in respect of) any breakage costs related to the Fixed Rate in the event the Fixed Rate is not available as a result of any of the conditions precedent set forth in Section 5.1.10 of the Novated Credit Agreement not being satisfied for any reason other than due to the New Borrowers own breach of the terms of this Agreement.
Notices ---|--- The provisions of clauses 17.1 and 17.2 (Notices) of the Principal Agreement shall extend and apply to the giving or making of notices or demands hereunder as if the same were expressly stated herein and for this purpose notices to the New Borrower shall be sent to it at:
"Waiver of immunity ---|--- To the extent that the Existing Borrower or the New Borrower has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its assets, each of the Existing Borrower and the New Borrower hereby irrevocably waives such immunity in respect of its obligations under this Agreement."
"eighty per cent (80%) of the Contract Price (as defined below) of the Purchased Vessel, and including Non-Yard Costs of up to EUR 76,000,000 and the Other Basic Contract Price Increases (as defined below) for the Purchased Vessel, of up to EUR 78,300,000, but which amount shall not exceed in aggregate EUR661,300,000; ---|---|--- |"
"Bank of Nova Scotia Agreement means the U.S. $1,128,000,000 amended and restated credit agreement dated as of June 15, 2015 among the Borrower, as borrower, the various financial institutions as are or shall become parties thereto, as lenders, and The Bank of Nova Scotia, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time."
"Coface Enhanced Guarantee means the enhanced guarantee (garantie rehausse) issued or to be issued by Coface to the benefit of CAFFIL in accordance with article 84 of the French Amending Finance Law 2012 (as amended) in relation to the refinancing of SFILs participation and Commitments under the Loan, and any other documents (including any security) entered into or to be entered into by SFIL with CAFFIL and/or Coface in relation thereto."
"Sanctions means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state or Her Majestys Treasury of the United Kingdom."
"Stockholders Equity means, as at any date, the Borrowers stockholders equity on such date, excluding Accumulated Other Comprehensive Income (Loss), determined in accordance with GAAP, provided that any non-cash charge to Stockholders Equity resulting (directly or indirectly) from a change after the Signing Date in GAAP or in the interpretation thereof shall be disregarded in the computation of Stockholders Equity such that the amount of any reduction thereof resulting from such change shall be added back to Stockholders Equity."
"such US Dollar Coface Balance Amount with the Facility Agent in accordance with Section 2.3.c). The Facility Agent shall furnish a certificate to the Borrower on the date such Loan Request is delivered setting forth such Spot Rate of Exchange, its derivation and the calculation of the US Dollar Coface Balance Amount. If the Borrower elects to so finance the Coface Premium and receive the proceeds in EUR, the Borrower will be deemed to have directed the Facility Agent to pay over to the Borrower that portion of the EUR amount of the Coface Premium to be financed with the proceeds of the advance on the Actual Delivery Date and to retain for its own account deposits made by the Lenders in Dollars in an amount equal to the US Dollar Coface Balance Amount."
"If it becomes unlawful in any jurisdiction for any Lender to perform any of its obligations under the Loan Documents or to maintain or fund its portion of the Loan, the affected Lender may give written notice (the ""Illegality Notice"") to the Borrower and the Facility Agent of such event, including reasonable details of the relevant circumstances. ---|--- c)"
"obtain from each Reference Bank timely information for the purpose of determining the LIBO Rate in the event that no offered quotation appears on Thomson Reuters LIBOR01 Page (or any successor page) and the LIBO Rate is to be determined by reference to quotations supplied by the Reference Banks and not by reference to the Historic Screen Rate. If any one or more of the Reference Banks shall fail to furnish in a timely manner such information to the Facility Agent for any such interest rate, the Facility Agent shall determine such interest rate on the basis of the information furnished by the remaining Reference Banks. If the Borrower elects to add an additional Reference Bank hereunder or a Reference Bank ceases for any reason to be able and willing to act as such, the Facility Agent shall, at the direction of the Required Lenders and after consultation with the Borrower and the Lenders, appoint a replacement for such Reference Bank reasonably acceptable to the Borrower, and such replaced Reference Bank shall cease to be a Reference Bank hereunder. The Facility Agent shall furnish to the Borrower and to the Lenders each determination of the LIBO Rate made by reference to quotations of interest rates furnished by Reference Banks (it being understood that the Facility Agent shall not be required to disclose to any party hereto (other than the Borrower) any information regarding any Reference Bank or any rate quoted by a Reference Bank, including, without limitation, whether a Reference Bank has provided a rate or the rate provided by any individual Reference Bank)."
"interests of such Lender, (A) such Lender shall (through the Facility Agent) notify the Borrower of the occurrence of such event and use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and the terms of the COFACE Insurance Policy and (if the Fixed Rate applies) the arrangements with Natixis DAI relating to the CIRR) to designate a different Lending Office if the making of such a designation would avoid the effects of such law, regulation or regulatory requirement or any change therein or in the interpretation thereof and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender and (B) the Borrower shall forthwith upon such demand pay to the Facility Agent for the account of such Lender such amount as is necessary to compensate such Lender for such additional cost or such reduction and ancillary expenses, including taxes, incurred as a result of such adjustment. Such notice shall (i) describe in reasonable detail the event leading to such additional cost, together with the approximate date of the effectiveness thereof, (ii) set forth the amount of such additional cost, (iii) describe the manner in which such amount has been calculated, (iv) certify that the method used to calculate such amount is such Lenders standard method of calculating such amount, (v) certify that such request is consistent with its treatment of other borrowers that are subject to similar provisions, and (vi) certify that, to the best of its knowledge, such change in circumstance is of general application to the commercial banking industry in such Lenders jurisdiction of organization or in the relevant jurisdiction in which such Lender does business. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lenders right to demand such compensation; provided that in relation to increased costs or reductions arising after the Effective Date the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than three months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such increased costs or reductions and of such Lenders intention to claim compensation therefor; provided further that, if the circumstance giving rise to such increased costs or reductions is retroactive, then the three-month period referred to above shall be extended to include the period of retroactive effect thereof, but not more than six months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such cost or reductions and of such Lenders intention to claim compensation therefor."
the amount which such Lender would be able to obtain by placing an amount equal to the amount received by it on deposit with a leading bank in the appropriate interbank market for a period starting on the Business Day following receipt and ending on the last day of the applicable Interest Period; or ---|---|--- |
"Since the Lenders commit themselves irrevocably to the French Authorities in charge of monitoring the CIRR mechanism, any prepayment (whether voluntary, involuntary or mandatory, including following the acceleration of the Loan) will be subject to the mandatory payment by the Borrower of the amount calculated in liaison with the French Authorities two (2) Business Days prior to the prepayment date by taking into account the differential (the Rate Differential) between the CIRR and the prevailing market yield (currently ISDAFIX) for each installment to be prepaid and applying such Rate Differential to the remaining residual period of such installment and discounting to the net present value as described below. Each of these Rate Differentials will be applied to the corresponding installment to be prepaid during the period starting on the date on which such prepayment is required to be made and ending on the original Repayment Date (as adjusted following any previous prepayments) for such installment and: ---|--- "
"SECTION 4.5. Increased Capital Costs. If after the Signing Date any change in, or the introduction, adoption, effectiveness, interpretation, reinterpretation or phase-in of, any law or regulation, directive, guideline, decision or request (whether or not having the force of law) of any court, central bank, regulator or other governmental authority increases the amount of capital required to be maintained by any Lender or any Person controlling such Lender, and the rate of return on its or such controlling Persons capital as a consequence of its Commitment or its portion of the Loan made by such Lender is reduced to a level below that which such Lender or such controlling Person would have achieved but for the occurrence of any such change in circumstance, then, in any such case upon notice from time to time by such Lender to the Borrower, the Borrower shall immediately pay directly to such Lender additional amounts sufficient to compensate such Lender or such controlling Person for such reduction in rate of return. Any such notice shall (i) describe in reasonable detail the capital adequacy requirements which have been imposed, together with the approximate date of the effectiveness thereof, (ii) set forth the amount of such lowered return, (iii) describe the manner in which such amount has been calculated, (iv) certify that the method used to calculate such amount is such Lenders standard method of calculating such amount, (v) certify that such request for such additional amounts is consistent with its treatment of other borrowers that are subject to similar provisions and (vi) certify that, to the best of its knowledge, such change in circumstances is of general application to the commercial banking industry in the jurisdictions in which such Lender does business. In determining such amount, such Lender may use any method of averaging and attribution that it shall, subject to the foregoing sentence, deem applicable. Each Lender agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and the terms of the COFACE Insurance Policy and (if the Fixed Rate applies) the arrangements with Natixis DAI relating to the CIRR) to designate a different Lending Office if the making of such a designation would avoid such reduction in such rate of return and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lenders right to demand such compensation; provided that in relation to increased costs or reductions arising after the Effective Date the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than three months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such reductions and of such Lenders intention to"
"SECTION 4.6. Taxes . All payments by the Borrower of principal of, and interest on, the Loan and all other amounts payable hereunder shall be made free and clear of and without deduction for any present or future income, excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or other charges of any nature whatsoever imposed by any taxing authority, but excluding franchise taxes and taxes imposed on or measured by any Lenders net income or receipts of such Lender and franchise taxes imposed in lieu of net income taxes or taxes on receipts, by the jurisdiction under the laws of which such Lender is organized or any political subdivision thereof or the jurisdiction of such Lenders Lending Office or any political subdivision thereof or any other jurisdiction unless such net income taxes are imposed solely as a result of the Borrowers activities in such other jurisdiction, and any taxes imposed under FATCA (such non-excluded items being called Covered Taxes). In the event that any withholding or deduction from any payment to be made by the Borrower hereunder is required in respect of any Covered Taxes pursuant to any applicable law, rule or regulation, then the Borrower will:"
"pay to the Facility Agent for the account of the Lenders such additional amount or amounts as is necessary to ensure that the net amount actually received by each Lender will equal the full amount such Lender would have received had no such withholding or deduction been required. ---|---|--- Moreover, if any Covered Taxes are directly asserted against the Facility Agent or any Lender with respect to any payment received or paid by the Facility Agent or such Lender hereunder, the Facility Agent or such Lender may pay such Covered Taxes and the Borrower will promptly pay such additional amounts (including any penalties, interest or expenses) as is necessary in order that the net amount received by such person after the payment of such Covered Taxes (including any Covered Taxes on such additional amount) shall equal the amount such person would have received had no such Covered Taxes been asserted."
"Such notice shall (i) describe in reasonable detail the reserve requirement that has been imposed, together with the approximate date of the effectiveness thereof, (ii) set forth the applicable reserve percentage, (iii) certify that such request is consistent with such Lenders treatment of other borrowers that are subject to similar provisions and (iv) certify that, to the best of its knowledge, such requirements are of general application in the commercial banking industry in the United States."
"of a demand by the Borrower pursuant to this Section unless and until such Lender shall have received one or more payments from either the Borrower or one or more Assignee Lenders in an aggregate amount at least equal to the aggregate outstanding principal amount of the Loan owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement. Each Lender represents and warrants to the Borrower that, as of the Signing Date (or, with respect to any Lender not a party hereto on the Signing Date, on the date that such Lender becomes a party hereto), there is no existing treaty, law, regulation, regulatory requirement, interpretation, directive, guideline, decision or request pursuant to which such Lender would be entitled to request any payments under any of Sections 4.3, 4.4, 4.5, 4.6 and 4.7 to or for account of such Lender."
"the Recovering Lender shall, within three (3) Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the ""Sharing Payment"") equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Lender as its share of any payment to be made, in accordance with any applicable provisions of this Agreement. ---|---|--- SECTION 4.10.2. Redistribution of payments. The Facility Agent shall treat the Sharing Payment as if it had been paid by the Borrower and distribute it between the Lenders (other than the Recovering Lender) (the ""Sharing Lenders"") in accordance with the provisions of this Agreement towards the obligations of the Borrower to the Sharing Lenders."
"the representations and warranties set forth in Article VI (excluding, however, those set forth in Section 6.10) shall be true and correct in all material respects except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct, with the same effect as if then made; and ---|---|--- |"
"SECTION 6.12. No Immunity. The Borrower is subject to civil and commercial law with respect to the Obligations. Neither the Borrower nor any of its properties or revenues is entitled to any right of immunity in any Applicable Jurisdiction from suit, court jurisdiction, judgment, attachment (whether before or after judgment), set-off or execution of a judgment or from any other legal process or remedy relating to the Obligations (to the extent such suit, court jurisdiction, judgment, attachment, set-off, execution, legal process or remedy would otherwise be permitted or exist)."
"SECTION 6.15. Accuracy of Information. The financial and other information (other than financial projections or other forward looking information) furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller in connection with the negotiation of this Agreement is, when taken as a whole, to the best knowledge and belief of the Borrower, true and correct and contains no misstatement of a fact of a material nature. All financial projections, if any, that have been furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller in connection with this Agreement have been or will be prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time made (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the Borrowers control, and that no assurance can be given that the projections will be realized). All financial and other information furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller after the date of this Agreement shall have been prepared by the Borrower in good faith."
"together with each of the statements delivered pursuant to the foregoing clause (a) or (b), a certificate, executed by the chief financial officer, the treasurer or the corporate controller of the Borrower, showing, as of the last day of the relevant Fiscal Quarter or Fiscal Year compliance with the covenants set forth in Section 7.2.4 (in reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Facility Agent); ---|---|--- |"
"Liens on assets (including, without limitation, shares of capital stock of corporations and assets owned by any corporation that becomes a Subsidiary of the Borrower after the Effective Date) acquired after the Effective Date (whether by purchase, construction or otherwise) by the Borrower or any of its Subsidiaries (other than (x) an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, after three months after the acquisition of a Vessel, owns a Vessel free of any mortgage Lien), which Liens were created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of such assets, so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of this Agreement and (ii) each such Lien is created within three months after the acquisition of the relevant assets; ---|---|--- |"
Liens on any asset of any corporation that becomes a Subsidiary of the Borrower (other than a corporation that also becomes a Subsidiary of an Existing Principal Subsidiary) after the Effective Date so long as (i) the acquisition or creation of such corporation by the Borrower is not otherwise prohibited by the terms of this ---|---|--- 
"permit or suffer to exist the commencement of any bankruptcy, reorganization, debt arrangement or other case or proceeding under any bankruptcy or insolvency law, or any dissolution, winding up or liquidation proceeding, in respect of the Borrower or any of such Subsidiaries, and, if any such case or proceeding is not commenced by the Borrower or such Subsidiary, such case or proceeding shall be consented to or acquiesced in by the Borrower or such Subsidiary or shall result in the entry of an order for relief or shall remain for 60 days undismissed, provided that the Borrower hereby expressly authorizes the Facility Agent and each Lender to appear in any court conducting any such case or proceeding during such 60-day period to preserve, protect and defend their respective rights under the Loan Documents; or ---|---|--- |"
"SECTION 9.1.2. Unenforceability. Any Loan Document shall cease to be the legally valid, binding and enforceable obligation of the Borrower (in each case, other than with respect to provisions of any Loan Document (i) identified as unenforceable in the form of the opinion of the Borrowers counsel set forth as Exhibit B-1 or (ii) that a court of competent jurisdiction has determined are not material) and such event shall continue unremedied for 15 days after notice thereof has been given to the Borrower by the Facility Agent."
"SECTION 10.4. Exculpation. Neither of the Agents nor any of their respective directors, officers, employees or agents shall be liable to any Lender for any action taken or omitted to be taken by it under this Agreement or any other Loan Document, or in connection herewith or therewith, except for its own willful misconduct or gross negligence. Without limitation of the generality of the foregoing, each Agent (i) may consult with legal counsel (including counsel for the Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it and in accordance with the advice of such counsel, accountants or experts, (ii) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement, (iii) shall not have any duty to ascertain or to inquire as to the performance, observance or satisfaction of any of the terms, covenants or conditions of this Agreement on the part of the Borrower or the existence at any time of any Default or Prepayment Event or to inspect the property (including the books and records) of the Borrower, (iv) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto, (v) shall incur no liability under or in respect of this Agreement by action upon any notice, consent, certificate or other instrument or writing (which may be by telecopier) believed by it to be genuine and signed or sent by the proper party or parties, and (vi) shall have no responsibility to the Borrower or any Lender on account of (A) the failure of a Lender or the Borrower to perform any of its obligations under this Agreement or any Loan Document; (B) the financial condition of the Borrower; (C) the completeness or accuracy of any statements, representations or warranties made in or pursuant to this Agreement or any Loan Document, or in or pursuant to any document delivered pursuant to or in connection with this Agreement or any Loan Document; or (D) the negotiation, execution, effectiveness, genuineness, validity, enforceability, admissibility in evidence or sufficiency of this Agreement or any Loan Document or of any document executed or delivered pursuant to or in connection with any Loan Document."
"review of the financial information of the Borrower, this Agreement, the other Loan Documents (the terms and provisions of which being satisfactory to such Lender) and such other documents, information and investigations as such Lender has deemed appropriate, made its own credit decision to extend its Commitment. Each Lender also acknowledges that it will, independently of each Agent and each other Lender, and based on such other documents, information and investigations as it shall deem appropriate at any time, continue to make its own credit decisions as to exercising or not exercising from time to time any rights and privileges available to it under this Agreement or any other Loan Document."
The Facility Agent shall not be deemed to have actual knowledge of the falsehood or incompleteness of any representation or warranty made or deemed repeated by the Borrower or actual knowledge of the occurrence of any Default unless a Lender or the Borrower shall have given written notice thereof to the Facility Agent in its capacity as the Facility Agent. Any information acquired by the Facility Agent other than specifically in its capacity as the Facility Agent shall not be deemed to be information acquired by the Facility Agent in its capacity as the Facility Agent.
"SECTION 10.11. Employment of Agents. In performing its duties and exercising its rights, powers, discretions and remedies under or pursuant to this Agreement or the Loan Documents, each Agent shall be entitled to employ and pay agents to do anything which such Agent is empowered to do under or pursuant to this Agreement or the Loan Documents (including the receipt of money and documents and the payment of money); provided that, unless otherwise provided herein, including without limitation Section 11.3, the employment of such agents shall be for such Agents account, and to act or refrain from taking action in reliance on the opinion of, or advice or information obtained from, any lawyer, banker, broker, accountant, valuer or any other person believed by such Agent in good faith to be competent to give such opinion, advice or information."
"SECTION 10.12. Distribution of Payments. The Facility Agent shall pay promptly to the order of each Lender that Lenders Percentage Share of every sum of money received by the Facility Agent pursuant to this Agreement or the Loan Documents (with the exception of any amounts payable pursuant to the Fee Letter and any amounts which, by the terms of this Agreement or the Loan Documents, are paid to the Facility Agent for the account of the Facility Agent alone or specifically for the account of one or more Lenders) and until so paid such amount shall be held by the Facility Agent on trust absolutely for that Lender."
"SECTION 10.14. Instructions. Where an Agent is authorized or directed to act or refrain from acting in accordance with the instructions of the Lenders or of the Required Lenders each of the Lenders shall provide such Agent with instructions within three (3) Business Days of such Agents request (which request may be made orally or in writing). If a Lender does not provide such Agent with instructions within that period, that Lender shall be bound by the decision of such Agent. Nothing in this Section 10.14 shall limit the right of such Agent to take, or refrain from taking, any action without obtaining the instructions of the Lenders or the Required Lenders if such Agent in its discretion considers it necessary or appropriate to take, or refrain from taking, such action in order to preserve the rights of the Lenders under or in connection with this Agreement or the Loan Documents. In that event, such Agent will notify the Lenders of the action taken by it as soon as reasonably"
"SECTION 10.16. Know your customer Checks. Each Lender shall promptly upon the request of the Facility Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself) in order for the Facility Agent to carry out and be satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in this Agreement or the Loan Documents."
"properly addressed and sent by pre-paid courier service, shall be deemed given when received; any notice, if transmitted by facsimile, shall be deemed given when transmitted provided it is received in legible form; any notice, if transmitted by electronic mail, shall be deemed given upon acknowledgment of receipt by the recipient."
"(i) Any Lender with the prior written consents of the Borrower and the Facility Agent (which consents shall not be unreasonably delayed or withheld and which consent, in the case of the Borrower, shall be deemed to have been given in the absence of a written notice delivered by the Borrower to the Facility Agent, on or before the fifth Business Day after receipt by the Borrower of such Lenders request for consent, stating, in reasonable detail, the reasons why the Borrower proposes to withhold such consent) may at any time (and from time to time) assign or transfer to one or more commercial banks or other financial institutions all or any fraction of such Lenders portion of the Loan."
"are set forth in this Agreement for assignments and transfers by other Lenders and (B) CAFFIL may not enforce its rights under any such assignment, charge or other security by assigning or transferring all or any fraction of SFILs portion of the Loan or any of its rights or obligations under this Agreement or other Loan Documents except pursuant to an assignment or transfer to a commercial bank or other financial institution on and subject to the same terms and conditions as are set forth in this Agreement for assignments and transfers by Lenders."
The ECA Agent shall: ---|---|--- (i) make written requests to Coface seeking a reimbursement of the Coface Premium in the circumstances described in Section 11.13.1(c) promptly after the relevant cancellation or prepayment and (subject to any confidentiality undertakings given to Coface by the ECA Agent pursuant to the terms of the Coface Insurance Policy) provide a copy of the request to the Borrower;
"SECTION 11.15. Confidentiality. Each of the Facility Agent and the Lenders agrees to maintain and to cause its Affiliates to maintain the confidentiality of all information provided to it by the Borrower or any Subsidiary of the Borrower, or by the Facility Agent on the Borrowers or such Subsidiarys behalf, under this Agreement, and neither it nor any of its Affiliates shall use any such information other than in connection with or in enforcement of this Agreement or in connection with other business now or hereafter existing or contemplated with the Borrower or any Subsidiary, except to the extent such"
"SECTION 11.17. Waiver of immunity. To the extent that the Borrower has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its assets, the Borrower hereby irrevocably waives such immunity in respect of its obligations under this Agreement and the other Loan Documents."
"SECTION 2. Guaranty Absolute. Each Guarantor guaranties that the Guarantied Obligations will be paid strictly in accordance with the terms of the Loan Documents, without set-off or counterclaim, and regardless of any applicable law now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Guarantied Parties with respect thereto. The liability of each Guarantor under this Guaranty shall be absolute and unconditional irrespective of:"
"interest in or other Lien on any property subject thereto or exhaust any right or take any action against the Borrower or any other Person or any collateral, (C)the filing of any claim with a court in the event of receivership or bankruptcy of the Borrower or any other Person, (D)except as otherwise provided herein, protest or notice with respect to nonpayment of all or any of the Guarantied Obligations, (E)the benefit of any statute of limitations (other than any statute of limitations that a court of competent jurisdiction determines that Borrower is entitled to rely on with respect to its obligations under the Loan Documents), (F)all demands whatsoever (and any requirement that demand be made on the Borrower or any other Person as a condition precedent to such Guarantors obligations hereunder), (G)all rights by which any Guarantor might be entitled to require suit on an accrued right of action in respect of any of the Guarantied Obligations or require suit against the Borrower or any other Guarantor or Person, (H)any defense based upon an election of remedies by any Guarantied Party, or (I)notice of any events or circumstances set forth in clauses (a)through (h)of Section2 hereof; and (ii)covenants and agrees that, except as otherwise agreed by the parties, this Guaranty will not be discharged except (A)by complete payment of the Guarantied Obligations and any other obligations of such Guarantor contained herein or (B)as to any Guarantor, upon the release of such Guarantor as permitted under Section6.7 of the Credit Agreement."
"(b) No waiver by the Guarantied Parties of any Default shall operate as a waiver of any other Default or the same Default on a future occasion, and no action by any of the Guarantied Parties permitted hereunder shall in way affect or impair any of the rights of the Guarantied Parties or the obligations of any Guarantor under this Guaranty, under any of the other Loan Documents, except as specifically set forth in any such waiver. To the extent permitted by applicable law, any determination by a court of competent jurisdiction of the amount of any principal and/or interest or other amount constituting any of the Guarantied Obligations shall be conclusive and binding on each Guarantor irrespective of whether such Guarantor was a party to the suit or action in which such determination was made provided that the Borrower was so a party."
"SECTION 7. Right of Set-off. Upon the occurrence and during the continuance of any Event of Default under the Credit Agreement, each of the Guarantied Parties 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) at any time held and other indebtedness at any time owing by such Guarantied Party to or for the credit or the account of each Guarantor against any and all of the Guarantied Obligations of such Guarantor now or hereafter existing under this Guaranty, irrespective of whether or not such Guarantied Party shall have made any demand under this Guaranty and although such obligations may be contingent and unmatured; provided, however, such Guarantied Party shall promptly notify such Guarantor and the Borrower after such set-off and the application made by such Guarantied Party. The rights of each Guarantied Party under this Section7 are in addition to other rights and remedies (including, without limitation, other rights of set-off) which such Guarantied Party may have."
"SECTION 8. Continuing Guaranty; Transfer of Notes. This Guaranty is a continuing guaranty and shall (i)remain in full force and effect until payment in full of all of the Obligations, return or cancellation of all outstanding Letters of Credit and termination of the Commitments (the Release Date) (ii)be binding upon each Guarantor, its permitted successors and assigns, and (iii)inure to the benefit of and be enforceable by the Guarantied Parties and their respective successors, permitted transferees, and permitted assigns. Without limiting the generality of the foregoing clause (iii), each of the Guarantied Parties may assign or otherwise transfer any Note held by it or the Guarantied Obligations owed to it to any other Person, and such other Person shall thereupon become vested with all the rights in respect thereof granted to such Guarantied Party herein or otherwise with respect to such of the Notes and the Guarantied Obligations so transferred or assigned, subject, however, to compliance with the provisions of Section10.6 of the Credit Agreement in respect of assignments. No Guarantor may assign any of its obligations under this Guaranty without first obtaining the written consent of the Lenders as set forth in the Credit Agreement. Notwithstanding the foregoing, the continuation provisions set forth above shall not apply to any Guarantor that is released from the Guaranty in accordance with the terms and conditions set forth in Section6.7 of the Credit Agreement."
"(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO ANY LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY, NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND BY EXECUTION AND DELIVERY OF THIS GUARANTY, EACH GUARANTOR CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH GUARANTOR IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT, OR OTHER DOCUMENT RELATED THERETO. EACH GUARANTOR WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE."
"(a) All references herein to the Borrower or to any Guarantor shall include their respective successors and assigns, including, without limitation, a receiver, trustee or debtor-in-possession of or for the Borrower or such Guarantor. All references to the singular shall be deemed to include the plural where the context so requires."
"| | | | ---|---|---|---|--- |  | |  | Palm Gardens At Doral Clubhouse, LLC |  | |  | Palm Gardens at Doral, LLC |  | |  | Palm Vista Preserve, LLC |  | |  | PG Properties Holding, LLC |  | |  | Pioneer Meadows Development, LLC |  | |  | Pioneer Meadows Investments, LLC |  | |  | POMAC, LLC |  | |  | Prestonfield L.L.C. |  | |  | PT Metro, LLC |  | |  | Raintree Village II L.L.C. |  | |  | Raintree Village, L.L.C. |  | |  | Rivenhome Corporation |  | |  | Rutenberg Homes of Texas, Inc. |  | |  | Rutenberg Homes, Inc. |  | |  | Rye Hill Company, LLC |  | |  | S. Florida Construction II, LLC |  | |  | S. Florida Construction III, LLC |  | |  | S. Florida Construction, LLC |  | |  | San Lucia, LLC |  | |  | Savell Gulley Development, LLC |  | |  | Scarsdale, LTD. |  | |  | Seminole/70th, LLC |  | |  | Siena at Old Orchard, LLC |  | |  | Spanish Springs Development, LLC |  | |  | Stoney Corporation |  | |  | Strategic Holdings, Inc. |  | |  | Strategic Technologies, LLC |  | |  | Summerfield Venture L.L.C. |  | |  | Summerwood, LLC |  | |  | Temecula Valley, LLC |  | |  | Treasure Island Holdings, LLC |  | |  | The LNC Northeast Group, Inc. |  | |  | The Preserve at Coconut Creek, LLC |  | |  | U.S. Home Corporation |  | |  | U.S. Home of Arizona Construction Co. |  | |  | U.S. Home Realty, Inc. |  | |  | U.S.H. Los Prados, Inc. |  | |  | U.S.H. Realty, Inc. |  | |  | USH - Flag, LLC |  | |  | USH Equity Corporation |  | |  | USH Woodbridge, Inc. |  | |  | UST Lennar Collateral Sub, LLC |  | |  | UST Lennar GP PIS 10, LLC |  | |  | UST Lennar GP PIS 7, LLC |  | |  | UST Lennar HW Scala SF Joint Venture |  | |  | WCP, LLC |  | |  | West Chocolate Bayou Development, LLC |  | |  | West Van Buren L.L.C. "
"1\. Term. Subject to termination under Section 4, this Agreement shall be effective for the period beginning on the Effective Date and continuing until the third anniversary of the Effective Date. The term of this Agreement shall automatically renew for periods of one-year, unless either party gives written notice to the other party at least 30 days prior to the end of the then existing term or any one-year renewal period, that the term of the Agreement shall not be further extended. The period commencing on the Effective Date and ending on the date on which the term of the Agreement terminates in accordance with this Section 1 or upon termination of employment in accordance with Section 4 is referred to hereinafter as the Term. Nothing in this Agreement shall be construed as giving the Executive any right to be retained in the employ of the Company, and the Executive specifically acknowledges that the Executive shall be an employee-at-will of the Company, and thus subject to discharge at any time by the Company with or without Cause (as defined in Section 4) and without compensation of any nature except as provided in Section 5 below."
"(4) provided that the Executive is eligible for and timely elects COBRA continuation coverage under the Companys group health plan, the Company will reimburse the Executive for the monthly COBRA cost of continued coverage under such plan for the Executive, and, where applicable, his spouse and dependents, less the amount the Executive would have been required to pay for such coverage if the Executive were an active employee of the Company, for the Severance Period, or until the Executive becomes employed by another employer offering any such benefits (whichever is earlier), provided that the Company reserves the right to restructure the foregoing reimbursement arrangement in any manner necessary or appropriate to avoid fines, penalties or negative tax consequences to the Company or any affiliate or the Executive (including, without limitation, to avoid any penalty imposed under the Patient Protection and Affordable Care Act or the guidance issued thereunder), as determined by the Company in its sole and absolute discretion. The Executive agrees to provide the Company with notice of eligibility under another health plan within two (2) weeks of such eligibility. The Executive shall submit appropriate evidence of each such expense within sixty (60) days after his receipt of the invoice or billing statement for such expense, and the Company shall provide the Executive with the requisite reimbursement on the next payroll date thereafter. The monthly reimbursements described in this clause (4) shall be paid in normal payroll installments, commencing on the sixtieth (60th) day after the Executives effective date of termination. The first such installment payment shall include any unpaid severance payments that would have been made on the normal payroll dates occurring during the first sixty (60) days following the date of termination. The COBRA health care continuation coverage period under section 4980B of the Internal Revenue Code of 1986, as amended (the Code) shall run concurrently with the Severance Period."
"f. Code section 280G. Notwithstanding anything to the contrary, if any severance payment under this Section 5, either alone or together with any other payment which the Executive has received or has the right to receive from the Company or an affiliate (Total Payments), would otherwise exceed the amount (the Safe Harbor Amount) that could be received by the Executive without the imposition of an excise tax under section 4999 of the Code, then the Total Payments shall be reduced to the extent, and only to the extent, necessary to assure that their aggregate present value, as determined in accordance the applicable provisions of section 280G of the Code and the regulations thereunder, does not exceed the greater of the following dollar amounts: (i) the Safe Harbor Amount, or (ii) the greatest after-tax amount payable to the Executive after taking into account any excise tax imposed under section 4999 of the Code on the Total Payments. The Company shall pay all of the fees, including legal and accounting fees, associated with calculating the amounts set forth in this subsection (f)."
"a. Executive Representations. The Executive hereby represents and warrants to the Company that he is not subject to, or a party to, any employment agreement, non-competition covenant, non-disclosure agreement or other agreement, covenant, understanding or restriction of any nature whatsoever which would prohibit the Executive from executing this Agreement and performing fully his duties and responsibilities hereunder, or which would in any manner, directly or indirectly, limit or affect the duties and responsibilities which may now or in the future be assigned to the Executive by the Company. Further, the Company expects the Executive not to, and the Executive hereby acknowledges that he shall not, use any proprietary or confidential information of any prior employer in the performance of his duties."
"c. Jurisdiction and Service of Process. Any legal action or proceeding with respect to this Agreement shall be brought in the courts of the State of New Jersey or of the United States of America for the District of New Jersey. By execution and delivery of this Agreement, each of the parties hereto accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts. Each of the parties hereto irrevocably consents to the service of process of any of the aforesaid courts in any such action or proceeding by mailing copies thereof by certified mail, postage prepaid, to the party at its address set forth in subsection (f). THE PARTIES IRREVOCABLY WAIVE ANY RIGHT TO TRIAL BY JURY TO ALL CLAIMS HEREUNDER."
"e. Collateral Agreements. This Agreement constitutes the entire Agreement between the parties respecting the employment of the Executive, and supersedes any and all prior agreements and understandings concerning the terms and conditions of the Executives employment by the Company or an affiliate, including the Original Agreement, and there are no representations, warranties or commitments relating to such employment, except as set forth or referred to herein, provided that, notwithstanding the foregoing, the Employee Confidentiality and Inventions Agreement between the Executive and the Company shall remain in full force and effect. This Agreement may be amended only by an instrument in writing executed by the parties hereto. For the avoidance of doubt, this Agreement shall not supersede any award agreement between the Executive and the Company or an affiliate evidencing outstanding equity awards."
h. Mitigation. The Executive shall not be required to mitigate the amount of any payments and/or benefits under this Agreement by seeking other employment or otherwise. The payments and/or benefits to be provided pursuant to Section 5 shall not be reduced by any compensation or benefits payable or provided to the Executive as a result of employment by another employer after the date of termination or otherwise.
"(i) This Agreement is intended to comply with the requirements of section 409A of the Code and its corresponding regulations (Section 409A), and shall in all respects be administered in accordance with Section 409A. Notwithstanding anything in this Agreement to the contrary, distributions may only be made under this Agreement upon an event and in a manner permitted by Section 409A or an applicable exemption. Severance benefits provided under this Agreement are intended to be exempt from Section 409A under the separation pay exception to the maximum extent applicable. Further, any payments that qualify for the short-term deferral exception or another exception under Section 409A shall be paid under the applicable exception. For purposes of Section 409A, all payments to be made upon a termination of employment under this Agreement may only be made upon the Executives separation from service (within the meaning of such term under Section 409A), each payment made under this Agreement shall be treated as a separate payment, and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. In no event shall the Executive, directly or indirectly, designate the fiscal year of payment, except as permitted under Section 409A. Notwithstanding any provision of this Agreement to the contrary, in no event shall the timing of the Executives execution of the Release, directly or indirectly, result in the Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year, payment shall be made in the later taxable year. The Executive will be solely responsible for any tax imposed under Section 409A and in no event will the Company have any liability with respect to any tax, interest or other penalty imposed under Section 409A."
"(b) any and all other claims, including but not limited to claims brought under the Rehabilitation Act, the Executive Retirement Income Security Act of 1974 (as amended), the Uniformed Services Employment and Reemployment Rights Act of 1994, the National Labor Relations Act (as amended), the Federal Worker Adjustment and Retraining Notification Act (as amended), the Family and Medical Leave Act of 1993, the Occupational Safety and Health Act (as amended), the Equal Pay Act (as amended), the Labor Management Relations Act, New Jersey Law Against Discrimination, New Jersey Equal Pay Act, New Jersey Civil Rights Law, New Jersey Conscientious Employee Protection Act, New Jersey Family Leave Act, New Jersey Wage and Hour Law, New Jersey WARN Laws, and the New Jersey Constitution;"
"1.1. Term. The initial term of the Executives employment under this Employment Agreement will commence on March 30, 2015 (the Effective Date) and end on the third anniversary of the Effective Date (the Initial Employment Period), unless terminated earlier pursuant to Section3 hereof; provided, however, that the Employment Period will automatically be extended for a one-year period on the third anniversary of the Effective Date (and on each anniversary of the Effective Date thereafter) (the Renewal Period), unless either the Executive or the Company provides the other Party with written notice at least 30 days prior to the end of the then-current Employment Period of his or its intention not to further extend the Employment Period (the Initial Employment Period and each subsequent Renewal Period, if any, shall constitute the Employment Period, unless terminated earlier pursuant to Section3 of this Employment Agreement)."
"1.3. Exclusivity. During the Employment Period, the Executive shall devote substantially all of his business time and attention to the business and affairs of the Company, shall faithfully serve the Company, and shall conform to and comply with the lawful and reasonable directions and instructions given to him by the Reporting Person or his designee. During the Employment Period, the Executive shall use his best efforts to promote and serve the interests of the Company and shall not engage in any other business activity, whether or not such activity shall be engaged in for pecuniary profit; provided, that the Executive may (a)serve any civic, charitable, educational or professional organization and (b)manage his personal investments, in each case so long as any such activities do not (x)violate the terms of this"
"(c) Section409A. If the Executive is a specified employee for purposes of Section409A, any Severance Amount required to be paid pursuant to Section3.2 which is determined to be non-qualified deferred compensation that is subject to Section409A shall commence on the day after the first to occur of (i)the day which is six months from the Termination Date or (ii)the date of the Executives death. For purposes of this Employment Agreement, the terms terminate, terminated and termination mean a termination of the Executives employment that constitutes a separation from service within the meaning of the default rulesunder Section409A. For purposes of Section409A, the right to a series of installment payments under this Employment Agreement shall be treated as a right to a series of separate payments."
"4.4. Interference with Business Relationships. During the Restriction Period (other than in connection with carrying out his responsibilities for the Company Group), the Executive shall not directly or indirectly induce or solicit (or assist any Person to induce or solicit) any customer or client of any member of the Company Group to terminate its relationship or otherwise cease doing business in whole or in part with any member of the Company Group, or directly or indirectly interfere with (or assist any Person to interfere with) any material relationship between any member of the Company Group and any of their customers or clients so as to cause harm to any member of the Company Group."
Section7.Withholding. All amounts paid to the Executive under this Employment Agreement during or following the Employment Period shall be subject to withholding and other employment taxes imposed by applicable law. The Executive shall be solely responsible for the payment of all taxes imposed on him relating to the payment or provision of any amounts or benefits hereunder.
"8.7. Entire Agreement. From and after the Effective Date, this Employment Agreement constitutes the entire agreement between the parties hereto, and supersedes all prior representations, agreements and understandings (including any prior course of dealings), both written and oral, between the parties hereto with respect to the subject matter hereof, including, without limitation, any offer letters addressed to the Executive."
"8.9. Survivorship. Upon the expiration or other termination of this Employment Agreement, the respective rights and obligations of the parties hereto, including, without limitation, with respect to the Executives obligations set forth in Section4, shall survive such expiration or other termination to the extent necessary to carry out the intentions of the parties under this Employment Agreement."
"8.10. Binding Effect. This Employment Agreement shall inure to the benefit of, and be binding on, the successors and assigns of each of the parties, including, without limitation, the Executives heirs and the personal representatives of the Executives estate and any successor to all or substantially all of the business and/or assets of the Company."
"1. In consideration of the payments and benefits to be made under the Employment Agreement, dated as of February26, 2015 (the Employment Agreement), to which Benedict J. Stas (the Executive) and Evoqua Water Technologies LLC, a Delaware limited liability company (the Company) (each of the Executive and the Company, a Party and collectively, the Parties) are parties, the sufficiency of which the Executive acknowledges, the Executive, with the intention of binding himself and his heirs, executors, administrators and assigns, does hereby release, remise, acquit and forever discharge Holdings (as defined in the Employment Agreement), the Company and each of its and their subsidiaries and affiliates (the Company Affiliated Group), their present and former officers, directors, executives, shareholders, agents, attorneys, employees and employee benefit plans (and the fiduciaries thereof), and the successors, predecessors and assigns of each of the foregoing (collectively, the Company Released Parties), of and from any and all claims, actions, causes of action, complaints, charges, demands, rights, damages, debts, sums of money, accounts, financial obligations, suits, expenses, attorneys fees and liabilities of whatever kind or nature in law, equity or otherwise, whether accrued, absolute, contingent, unliquidated or otherwise and whether now known or unknown, suspected or unsuspected, which the Executive, individually or as a member of a class, now has, owns or holds, or has at any time heretofore had, owned or held, arising on or prior to the date hereof, against any Company Released Party that arises out of, or relates to, the Employment Agreement, the Executives employment with the Company or any of its subsidiaries and affiliates, or any termination of such employment, including claims (i)for severance or vacation benefits, unpaid wages, salary or incentive payments, (ii)for breach of contract, wrongful discharge, impairment of economic opportunity, defamation, intentional infliction of emotional harm or other tort, (iii)for any violation of applicable state and local labor and employment laws (including, without limitation, all laws concerning unlawful and unfair labor and employment practices) and (iv)for employment discrimination under any applicable federal, state or local statute, provision, order or regulation, and including, without limitation, any claim under Title VII of the Civil Rights Act of 1964 (Title VII), the Civil Rights Act of 1988, the Fair Labor Standards Act, the Americans with Disabilities Act (ADA), the Employee Retirement Income Security Act of 1974, as amended (ERISA), the Age Discrimination in Employment Act (ADEA), and any similar or analogous state statute, excepting only:"
"5. The Executive acknowledges that he has been given but not utilized a period of 21 days to consider whether to execute this Release. If the Executive accepts the terms hereof and executes this Release, he may thereafter, for a period of seven days following (and not including) the date of execution, revoke this Release. If no such revocation occurs, this Release shall become irrevocable in its entirety, and binding and enforceable against the Executive, on the day next following the day on which the foregoing seven-day period has elapsed. If such a revocation occurs, the Executive shall irrevocably forfeit any right to payment of the Severance Amount (as defined in the Employment Agreement) or the Benefits Continuation (as defined in the Employment Agreement), but the remainder of the Employment Agreement shall continue in full force."
"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."
"4. Incentive Compensation. Executive shall participate in short-term and long-term incentive programs, including equity compensation programs, established by the Company for its senior level executives generally, at levels determined by the Board or the Compensation Committee. Executives incentive compensation shall be subject to the terms of the applicable plans and shall be determined based on Executives individual performance and the Companys performance as determined by the Board or the Compensation Committee. Any annual incentive compensation earned by Executive shall be paid on or after January1, but not later than March15 of the fiscal year following the fiscal year for which the annual incentive compensation is earned."
"(b) Termination upon Death. If Executive dies, then Executives employment with the Company shall terminate as of the date of Executives death, 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 Executives heirs, personal representatives or estate shall be entitled to the Accrued Benefits. Accrued Benefits means: (a)any accrued but unpaid portion of Executives compensation set forth in Section3 above through the date of termination; (b)any accrued but unused vacation as of the termination date; (c)any earned but unpaid bonus for which the performance measurement period has ended prior to the termination date (e.g., if Executives employment is terminated on February1 and annual bonuses for the prior year have not been paid as of his termination date, then Executive would be eligible to receive his annual bonus for the prior year but not a bonus for the year in which the termination occurs), provided, that the termination of Executives employment is not for Cause or due to Executives voluntary resignation (other than for Good Reason); (d)any amounts owing to Executive for reimbursements of expenses properly incurred by Executive prior to the date of his termination of employment and which are reimbursable in accordance with Section5(c)above, with all amounts owed under each of (a), (b)and (d)payable in a lump sum no later than the Companys first regularly scheduled payroll date that is at least ten (10)days after the date of Executives termination of employment, and any amount owed under (c)payable in a lump sum when such bonuses are paid to the Companys employees; and (e)any amounts that are vested benefits or that Executive is otherwise entitled to receive under any plan, policy, practice or program of or any other contract or agreement with the Company at or subsequent to the date of termination, payable in accordance with such plan, policy, practice or program or contract or agreement."
"(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"
"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 Financial Officer, (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."
"(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."
"(d) If the 280G Firm determines that one or more reductions are required under this Section7, such Payments shall be reduced in the order that would provide Executive with the largest amount of after-tax proceeds (with such order, to the extent permitted by Sections 280G and 409A of the Code, designated by Executive, or otherwise determined by the 280G Firm) to the extent necessary so that no portion thereof shall be subject to the Excise Tax, and the Company shall pay such reduced amount to Executive. Executive shall at any time have the unilateral right to forfeit any equity award in whole or in part."
"(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)."
"(i) Executive acknowledges and agrees that all trade secrets, mask works, concepts, drawings, materials, documentation, procedures, diagrams, specifications, models, processes, formulae, source and object codes, data, programs, know-how, designs, techniques, ideas, methods, inventions, discoveries, improvements, work products, developments or other works of authorship (Inventions), whether patentable or unpatentable, (x)that relate to Executives work with the Employer, made, developed or conceived by Executive, solely or jointly with others or with the use of any of the Employers equipment, supplies, facilities or trade secrets or (y)suggested by any work that Executive performs in connection with the Employer, either while performing Executives duties with the Employer or on Executives own time, but only insofar as the Inventions are related to Executives work as an employee of the Employer (collectively, Company Inventions), will belong exclusively to the Company (or its designee), whether or not patent applications are filed thereon. Executive will keep full and complete written records (the Records), in the manner prescribed by the Employer, of all"
"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."
"13. 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."
"15. Notices. All notices and other communications required or permitted hereunder or necessary or convenient in connection herewith shall be in writing and shall be deemed to have been given when hand delivered or three (3)days after being mailed by registered or certified mail to Executive or the Company, as the case may be, at Executives address set forth below or the Companys address set forth below, or to such other names or addresses as Executive or the Company, as the case may be, shall designate by notice to each other person entitled to receive notices in the manner specified in this Section(provided that notice of change of address shall be deemed given only when received)."
"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."
"(e) Notwithstanding anything in Section6(f)hereof to the contrary, in the event that Executive is entitled to the amount set forth in Section6(f)(i)as a result of a termination of Executives employment within twelve (12) months after the date of the Change in Control, and such Change in Control does not constitute a change in ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company, within the meaning of Section409A(a)(2)(A)(v)of the Code and its corresponding regulations, and any portion of the severance benefit payable to Executive pursuant to Section6(e)(i)is deemed to constitute deferred compensation subject to the requirements of Section409A of the Code at the time of Executives termination, then such portion that constitutes deferred compensation shall reduce the amount that is paid in a lump sum as provided in Section6(f)(i)and such deferred compensation portion shall instead be paid in substantially equal installments over the installment period as described in Section6(e)(i)."
"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."
"This Second Amended and Restated Employment Agreement (Agreement) is made this 2nd day of October 2017 (the Effective Date) between CRISPR Therapeutics, Inc., a Delaware corporation (the Company) and a wholly-owned subsidiary of CRISPR Therapeutics AG (Parent), and Samarth Kulkarni (the Executive and, together with the Company, the Parties or each individually, a Party)."
"1.Position and Duties. During the period which the Executive is employed pursuant to this Agreement (the Employment Period), subject to the terms and conditions hereof, the Executive shall serve in the following capacities: (i)from the Effective Date to December1, 2017 (the Transition Date), the President and Chief Business Officer of the Company, and shall have responsibilities and duties consistent with such position and such other responsibilities and duties which are not inconsistent with the Executives skills and experience or his ability to discharge his responsibilities as the President and Chief Business Officer as may from time to time be prescribed by the Chief Executive Officer of the Company (the CEO); and (ii)from and after the Transition Date, the Chief Executive Officer of the Company, and shall have responsibilities and duties consistent with such position and such other responsibilities and duties which are not inconsistent with the Executives skills and experience or his ability to discharge his responsibilities as the Chief Executive Officer as may from time to time be prescribed by the Board of Directors of Parent (the Board). The Executive shall devote the Executives full working time and efforts to the business and affairs of the Company, except as otherwise permitted under Section3(b)(i). Notwithstanding the foregoing, the Executive may engage in 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 the Executives duties to the Company as provided in this Agreement. During the Employment Period, the Executives principal place of employment will be in the Greater Boston, Massachusetts area; however, the Company may require the Executive to travel temporarily to other locations in connection with the Companys business. "
"(b)Annual Bonus. During the Employment Period, the Executive shall be eligible to receive an annual target bonus (a Bonus) if, as reasonably determined by the Board or, to the extent delegated by the Board, the Committee, one or more of the performance targets annually determined by the Board or the Committee (Performance Targets) is achieved. If all of the Performance Targets are achieved, the Bonus will equal (i)prior to the Transition Date, not less than 45percent of the Executives Base Salary; and (ii)from and after the Transition Date, not less than 50percent of the Executives Base Salary (the amounts described in clauses (i)and (ii) are referred to as the Target Bonus). Notwithstanding the foregoing, for the calendar year ending December31, 2017, if all the Performance Targets are achieved, the Target Bonus shall be computed on a prorated basis as follows:"
"(i)During the Notice Period following a Notice of Termination of an Involuntary Departure, the Executive shall continue to be available to provide services to the extent requested by the Company or the Board, provided at any time during the Notice Period the Company may replace the Executives position and/or direct the Executive to perform other or reduced work; provided further that, upon the 15th day following such Notice of Termination (or such earlier date as the Company shall determine in its sole discretion), the Company shall release the Executive from his working obligations (except to the extent the parties otherwise agree) and place the Executive on garden leave for the remainder of the Notice Period (Garden Leave). During such Garden Leave, the Executive (A)may enter into consulting arrangements and accept board positions provided such outside business activities do not violate Executives obligations under Section7 and (B)shall be free to engage in other employment provided that such employment does not violate Executives obligations under Section7\. The Company shall be prohibited during the Notice Period from reducing any compensation to which the Executive is entitled to receive during the Notice Period pursuant to Section3(b)(ii)."
"(i)Cause. For purposes of this Agreement, Cause shall mean: (i)conduct by the Executive constituting a material act of misconduct in connection with the performance of the Executives duties that results in material harm to the Company, including, without limitation, misappropriation of funds or property of the Company or any of its subsidiaries or affiliates other than the occasional, customary and de minimis use of Company property for personal purposes; (ii)the Executives indictment for, conviction of or plea of guilty or nolo contendre to (A)any felony; or (B)a misdemeanor involving moral turpitude, deceit, dishonesty or fraud; (iii)continued non-performance by the Executive of the Executives material responsibilities hereunder (other than by reason of the Executives physical or mental illness, incapacity or disability) which has continued for more than 30days following written notice of such non-performance from the CEO (prior to the Transition Date) or the Board (from and after the Transition Date); (iv)a material breach by the Executive of any of the material provisions contained in Section7 of this Agreement or the material obligations arising pursuant to the Confidentiality and Assignment Agreement (as hereinafter defined); (v)a material violation by the Executive of any of the Companys written employment policies, which if possible to cure is not cured within 30 days following written notice of such violation; or (vi)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 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; provided that the exercise by Executive of his rights under the United States Constitution shall not constitute a breach of this subsection (vi)."
"(ii)Good Reason. For purposes of this Agreement, Good Reason shall mean that the Executive has complied with the Good Reason Process (hereinafter defined) following the occurrence of any of the following events: (i)a material diminution in the Executives responsibilities, authority or duties; (ii)a material reduction in Base Salary or Target Bonus which has not been consented to by the Executive; (iii)a material change in the principal geographic location at which the Executive provides services to the Company outside of the Greater Boston, Massachusetts area; or (iv)the material breach of this Agreement by the Company (each a Good Reason Condition). Good Reason Process shall mean that (i)the Executive reasonably determines in good faith that a Good Reason Condition"
"(a)Acceleration of Vesting. In the event a Notice of Termination of an Involuntary Termination occurs during the CIC Period or within two months prior to a Change in Control, or in the event the Executive delivers a Notice of Termination for any reason not sooner than 6 months after the occurrence of a Change in Control, and subject to the Executive signing, within 60 days following the Notice of Termination, a Release and the Release becoming effective and non-revocable within such 60-day period, all stock options and stock-based awards held by the Executive as of the date of the Notice of Termination, shall vest and become exercisable or nonforfeitable. Notwithstanding the foregoing, if, at the time of a Change in Control, the Company determines in its sole discretion, in reliance upon an opinion of counsel in form and substance satisfactory to the Company, that the acceleration in the prior sentence would not be permissible under applicable law, then in lieu of the acceleration in the prior sentence, all stock options and stock-based awards held by the Executive as of the date of such Change in Control, shall vest and become exercisable or nonforfeitable as of the date of such Change in Control."
"(iii) All calculations and determinations under Sections 5(c)(i) and 5(c)(ii) shall be made by an independent accounting firm or independent tax counsel appointed by the Company (theTax Counsel) whose determinations shall be conclusive and binding on the Company and the Executive for all purposes. For purposes of making the calculations and determinations required by Sections 5(c)(i) and 5(c)(ii), the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section280G and Section4999 of the Code. The Company and the Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under Sections 5(c)(i) and 5(c)(ii). The Company shall bear all costs the Tax Counsel may reasonably incur in connection with its services."
"(i)any person, as such term is used in Sections13(d) and14(d) of the Securities Exchange Act of 1934, as amended (the Act) (other than Parent, any of its subsidiaries, or any trustee, fiduciary or other person or entity holding securities under any employee benefit plan or trust of Parent or any of its subsidiaries), together with all affiliates and associates (as such terms are defined in Rule12b-2 under the Act) of such person, shall become the beneficial owner (as such term is defined in Rule13d-3 under the Act), directly or indirectly, of securities of Parent representing 50percent or more of the combined voting power of the Companys then outstanding securities having the right to vote in an election of the Board (Voting Securities) (in such case other than as a result of an acquisition of securities directly from Parent); or"
"(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. The parties agree that this Agreement"
"(d)Injunction. The Executive agrees that it would be difficult to measure any damages caused to the Company that might result from any breach by the Executive of the promises set forth in Section7(a) and (b)and in the Confidentiality and Assignment Agreement, and that in any event money damages would be an inadequate remedy for any such breach. Accordingly, subject to Section8 of this Agreement, the Executive agrees that if the Executive breaches, or proposes to breach, any portion of this Agreement and the Confidentiality and Assignment Agreement, the Company shall be entitled, in addition to all other remedies that it may have, to an injunction or other appropriate equitable relief to restrain any such breach without showing or proving any actual damage to the Company."
"9.Consent to Jurisdiction. To the extent that any court action is permitted consistent with or to enforce Section8 of this Agreement, the parties hereby agree that the Middlesex County Superior Court of The Commonwealth of Massachusetts shall have jurisdiction of such dispute. Accordingly, with respect to any such court action, the Executive submits to the personal jurisdiction of such courts. "
"responsibilities as Executive Chairman; provided, that this Section2 shall not be interpreted as prohibiting Executive from (i)managing Executives personal investments (so long as such investment activities are of a passive nature), (ii)engaging in charitable or civic activities, (iii)participating on boards of directors or similar bodies of non-profit organizations, or (iv)subject to approval by the Board in its sole discretion, participating on boards of directors or similar bodies of for-profit organizations, in each case, so long as such activities in the aggregate do not (a)materially interfere with the performance of Executives duties and responsibilities hereunder, (b)create a fiduciary conflict, or (c)with respect to (ii), (iii), (iv)and (v)only, detrimentally affect the Companys reputation as reasonably determined by the Company in good faith. If requested, Executive shall also serve as an executive officer and/or member of the board of directors of any entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, Cedar Fair, L.P. (an Affiliate) without additional compensation including, and being subject to his election by Unitholders, serving as a member of the Board during the Employment Period."
"Any cash incentive compensation (Annual Cash Incentive) payable to Executive for a calendar year shall be paid to Executive at the same time that other senior executives of the Company receive bonus payments, but in no event later than March15 of the calendar year following the end of the calendar year to which such Annual Cash Incentive relates. Executive shall not be paid any Annual Cash Incentive"
"4.3 Benefits. During the Employment Period, Executive shall be entitled to participate in any benefit and compensation plans, including but not limited to medical, disability, life insurance, 401(k) and deferred compensation plans (but excluding any severance or bonus plans unless specifically referenced in this Agreement) offered by the Company as in effect from time to time (collectively, Benefit Plans), on the same basis as those generally made available to other senior executives of the Company, to the extent Executive may be eligible to do so under the terms of any such Benefit Plan; provided, that the Company shall cover the costs of an annual physical for Executive under the Companys medical plan. Executive understands that any such Benefit Plans may be terminated or amended from time to time by the Company in its sole discretion."
"to such bonus relating to the potential application of negative discretion in respect of such bonus shall be deemed satisfied in full and (ii)is not intended to be qualified performance-based compensation (within the meaning of Section162(m) of the Code), any qualitative performance criteria applicable to such bonus shall be deemed satisfied in full;"
"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."
"(b) Whether during or after the Employment Period, Executive further agrees to execute and acknowledge all papers and to do, at the Companys expense, any and all other things necessary for or incident to the applying for, obtaining and maintaining of such letters patent, copyrights, trademarks or other intellectual property rights, as the case may be, and to execute, on request, all papers necessary to assign and transfer such Inventions, copyrights, patents, patent applications and other intellectual property rights to the Company and its successors and assigns. In the event that the Company is unable, after reasonable efforts and, in any event, after ten (10)business days, to secure Executives signature on a written assignment to the Company, of any application for letters patent, trademark registration or to any common law or statutory copyright or other property right therein, whether because of Executives physical or mental incapacity, or for any other reason whatsoever, Executive irrevocably designates and appoints the Secretary of the Company as Executives attorney-in-fact to act on Executives behalf to execute and file any such applications and to do all lawfully permitted acts to further the prosecution or issuance of such assignments, letters patent, copyright or trademark."
"9.2 Scope. Executive has carefully considered the nature and extent of the restrictions upon Executive and the rights and remedies conferred upon the Company under Section8 and Section9.1, and hereby acknowledges and agrees that the same are reasonable and necessary in time and territory, are intended to eliminate competition which otherwise would be unfair to the Company, do not stifle the inherent skill and experience of Executive, would not operate as a bar to Executives sole means of support, are fully required to protect the business interests of the Company, and do not confer a benefit upon the Company disproportionate to the detriment to Executive."
"10\. Severable Provisions. The provisions of this Agreement are severable and the invalidity of any one or more provisions shall not affect the validity of any other provision. In the event that a court of competent jurisdiction shall determine that any provision of this Agreement or the application thereof is unenforceable in whole or in part because of the duration or scope thereof, the parties hereto agree that said court in making such determination shall have the power to reduce the duration and scope of such provision to the extent necessary to make it enforceable, and that the Agreement in its reduced form shall be valid and enforceable to the full extent permitted by law."
"(c) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section409A, (i)the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii)the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in- kind benefits, to be provided in any other taxable year, provided that this clause (ii)shall not be violated with regard to expenses reimbursed under any arrangement covered by Code Section105(b) solely because such expenses are subject to a limit related to the period the arrangement is in effect and (iii)such payments shall be made on or before the last day of Executives taxable year following the taxable year in which the expense occurred."
"(a) Executive and Cedar Fair agree that, except as provided in Section12.8(h) below, any dispute, claim, or controversy between them, including without limitation disputes, claims, or controversies arising out of or relating to this Agreement or Executives employment with Cedar Fair or the termination of that employment, shall be settled exclusively by final and binding arbitration. Judgment upon the award of the arbitrators may be entered and enforced in any federal or state court having jurisdiction over the parties. Executive and Cedar Fair expressly acknowledge that this agreement to arbitrate applies without limitation to any disputes, claims or controversies between them, including without limitation claims of unlawful discrimination (including without limitation claims under Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act and all amendments to those statutes, as well as state anti-discrimination statutes), harassment, whistleblowing, retaliation, wrongful discharge, constructive discharge, claims related to the payment of wages or benefits, contract claims, and"
"d. Nothing in this Section1, or elsewhere in this Agreement, prevents or prohibits Employee from filing a claim with a government agency, such as the U.S. Equal Employment Opportunity Commission, that is responsible for enforcing a law on behalf of the government. However, Employee understands that, because Employee is waiving and releasing, among other things, any and all claims for monetary damages and any other form of personal relief (per Section1.a above), Employee may only seek and receive non-monetary forms of relief through any such claim."
"3.3.2 This Section3.3 is intended to be an award agreement itself, and is intended to supplement the terms and conditions of any and all other award agreements between Bandwidth and Morken relating to any options or restricted stock granted to Morken by Bandwidth, and the terms of this Section3.3 will govern the terms of such other award agreements in the event of any conflicts, regardless of whether such other agreements are heretofore or have previously been entered into by the parties."
"4.4 Bandwidth will have the right to terminate Morken at any time, immediately, for Cause. Cause will mean: (i)Morken is convicted of any felony (or Morken pleads guilty or nolo contendere thereto); (ii) Morken fails or refuses to perform, in any material respect, the written policies or directives of the Board, unless such failure is corrected within thirty (30)days following his receipt of written notice of such failure from Bandwidth that specifically identifies the manner in which the Board believes Morken has substantially failed to materially perform his duties; (iii)Morken materially breaches this Agreement or any other agreement between Bandwidth and Morken, including, without limitation, any applicable"
"(i) The terms compete or in competition, as used herein, will be deemed to include, without limitation, becoming or being an employee, owner, partner, consultant, agent, stockholder, director, or officer of any person, partnership, firm, corporation or other entity (other than Bandwidth) which engages in (i)the business of developing, providing, offering and selling (A)retail VoIP services, including, without limitation, IP based unified communications services and trunking services; (B)wireless services (including, without limitation, wireless services that utilize both cellular and WiFi networks); (C) wholesale VoIP services; (D)wholesale origination, termination or SMS services; (E)emergency solutions for telecommunications carriers, including, without limitation, end-to-end call control and support, real-time address validation, automated provisioning and/or geospatial routing; (F)circuit or data services, Internet connectivity services, and/or managed network services on an enterprise basis or to small and medium businesses; and/or (G)product(s) or service(s) to which any of clauses (A)through (F) apply and/or any product(s) or service(s) that perform substantially similar functions to which any of clauses (A)through (F) apply, or (ii)any other business conducted by Bandwidth immediately prior to such termination (or in which Bandwidth shall at such time be actively preparing to engage). Notwithstanding the foregoing, ownership of five (5%) percent or less of any class of securities of an entity will not constitute competition with Bandwidth."
"9.2 Morken has carefully considered, and has had adequate time and opportunity to consult with his own counsel or other advisors regarding the nature and extent of the restrictions upon him and the rights and remedies conferred upon Bandwidth under Sections7, 8 and 9, and hereby acknowledges and agrees that such restrictions are reasonable in time, territory and scope, are designed to eliminate competition which otherwise would be unfair to Bandwidth, do not stifle the inherent skill and experience of Morken, would not operate as a bar to Morkens sole means of support, are fully required to protect the legitimate interests of Bandwidth and do not confer a benefit upon Bandwidth disproportionate to the detriment to Morken."
"Confidential Information means all information or trade secrets of any type or description belonging to Bandwidth that are proprietary and confidential to Bandwidth and are not publicly disclosed or are only disclosed with restrictions. Without limiting the generality of the foregoing, Confidential Information includes strategic plans for carrying on business, other business plans, cost data, internal financial information, customer lists, employee lists, vendor lists, business partner or alliance lists, drawings, designs, schematics, flow charts, specifications, inventions, calculations, discoveries and any letters, papers, documents or instruments disclosing or reflecting any of the foregoing, and all information revealed to, acquired or created by Morken during Morkens employment by Bandwidth relating to any of the foregoing."
"(v) Board Position. In addition, during the Employment Period, the Company shall use its best efforts to cause the Executive to be nominated and elected as Chairman of the Board; provided, however, that the Company shall not be so obligated if cause exists for the removal of the Executive from the Board or for the failure to nominate or elect the Executive as Chairman to the Board. Provided that the Executive is so nominated and elected, the Executive hereby agrees to serve as Chairman of the Board."
"(b) Death or Disability. The Executives employment shall terminate automatically upon the Executives death or Disability during the Employment Period. For purposes of this Agreement, Disability shall mean the absence of the Executive from the Executives duties with the Company on a full-time basis for ninety (90)consecutive days or for a total of one hundred eighty (180)days in any twelve (12)month period, in either case, as a result of incapacity due to mental or physical illness which is determined to be total and permanent by a physician selected by the Company and reasonably acceptable to the Executive or the Executives legal representative."
"(c) Cause. The Company may terminate the Executives employment during the Employment Period for Cause or without Cause. For purposes of this Agreement, Cause shall mean the occurrence of any one or more of the following events unless the Executive fully corrects the circumstances constituting Cause within thirty (30)days following the date written notice is delivered to the Executive which specifically identifies the circumstances constituting Cause (provided such circumstances are capable of correction):"
"Notwithstanding the foregoing, Good Reason shall only exist if the Executive shall have provided the Board with written notice within ninety (90)days of the initial occurrence of any of the foregoing events or conditions which specifically identifies the circumstances constituting Good Reason (provided such circumstances are capable of correction). The Executives resignation from employment with the Company for Good Reason must occur within six (6)months following the initial existence of the event or condition constituting Good Reason."
"(ii) For the period beginning on the Date of Termination and ending on the date which is twelve (12)full months following the Date of Termination (or, if earlier, the date on which the Executive accepts employment with another employer that provides comparable benefits in terms of cost and scope of coverage or the date on which the applicable continuation period under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (COBRA) expires), the Company shall provide the Executive and his eligible dependents who were covered under the Companys health plans as of the date of the Executives termination with healthcare benefits which are substantially the same as the benefits provided to currently active employees at such cost to the Executive; provided, however, that (A)if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the period of continuation coverage to be, exempt from the application of Section409A (as defined below) under Treasury Regulation Section1.409A-1(a)(5), or (B)the Company is"
"(iii) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any vested benefits and other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company (such other amounts and benefits shall be hereinafter referred to as the Other Benefits); and"
"Notwithstanding the foregoing, it shall be a condition to the Executives right to receive the amounts provided for in Sections 4(a)(i)(B), 4(a)(ii)and 4(a)(iv)above that the Executive execute, deliver to the Company and not revoke a release of claims in substantially the form attached hereto as Exhibit A (the Release). The Executive shall have fifty (50)days following the Date of Termination to execute such Release. It is understood that, in the event that the Executive is at least forty (40)years old on the Date of Termination, the Executive has a certain period to consider whether to execute such Release, and the Executive may revoke such Release within seven (7)business days after execution. In the event the Executive does not execute such Release within the fifty (50)days following the Date of Termination, or if the Executive revokes such Release within the subsequent seven (7)business day period, the Executive shall not be entitled to the amounts provided for in Sections 4(a)(i)(2), 4(a)(ii)and 4(a)(iv)above. The date on which the Executives Release becomes effective and the applicable revocation period lapses shall be the Release Effective Date."
"(b) For Cause or Without Good Reason. If the Executives employment shall be terminated by the Company for Cause or by the Executive without Good Reason during the Employment Period, the Company shall have no further obligations to the Executive under this Agreement other than the obligation to pay to the Executive the Accrued Obligations in cash on the Date of Termination and to provide the Other Benefits."
"(d) Exclusive Remedy. Except as otherwise expressly required by law or as specifically provided herein, all of the Executives rights to salary, severance, benefits, bonuses and other amounts hereunder (if any) accruing after the termination of the Executives employment shall cease upon such termination. In the event of a termination of the Executives employment with the Company, the Executives sole remedy shall be to receive the payments and benefits described in this Section4\. In addition, the Executive acknowledges and agrees that he is not entitled to any reimbursement by the Company for any taxes payable by the Executive as a result of the payments and benefits received by the Executive pursuant to this Section4, including, without limitation, any excise tax imposed by Section409A and Section4999 of the Internal Revenue Code of 1986, as amended (the Code)."
"(iii) Notwithstanding anything herein to the contrary, to the extent any payments to the Executive pursuant to Sections 4(a)(i)(B), 4(a)(ii)and 4(a)(iv)are treated as nonqualified deferred compensation subject to Section409A, then (A)no amount shall be payable pursuant to such section unless the Executives termination of employment constitutes a separation from service with the Company (as such term is defined in Treasury Regulation Section1.409A-1(h) and any successor provision thereto) (a Separation from Service), and (B)if the Executive, at the time of his Separation from Service, is determined by the Company to be a specified employee for purposes of Section409A(a)(2)(B)(i) of the Code and the Company determines that delayed commencement of any portion of the termination benefits payable to the Executive pursuant to this Agreement is required in order to avoid a prohibited distribution under Section409A(a)(2)(B)(i) of the Code (any such delayed commencement, a Payment Delay), then such portion of the Executives termination benefits described in Sections 4(a)(i)(B), 4(a)(ii)and 4(a)(iv)shall not be provided to the Executive prior to the earlier of (A)the expiration of the six-month period measured from the date of the Executives Separation from Service, (B)the date of the Executives death or (C)such earlier date as is permitted under Section409A. Upon the expiration of the applicable Code Section409A(a)(2)(B)(i) deferral period, all payments deferred pursuant to a Payment Delay shall be paid in a lump sum to the Executive within ten (10)days following such expiration, and any remaining payments due under the Agreement shall be paid as otherwise provided herein. The determination of whether the Executive is a specified employee for purposes of Section409A(a)(2)(B)(i) of the Code as of the time of his Separation from Service shall made by the Company in accordance with the terms of Section409A of the Code and applicable guidance thereunder (including without limitation Treasury Regulation Section1.409A-1(i) and any successor provision thereto)."
"The undersigned represents and warrants that there has been no assignment or other transfer of any interest in any Claim which he may have against Releasees, or any of them, and the undersigned agrees to indemnify and hold Releasees, and each of them, harmless from any liability, Claims, demands, damages, costs, expenses and attorneys fees incurred by Releasees, or any of them, as the result of any such assignment or transfer or any rights or Claims under any such assignment or transfer.It is the intention of the parties that this indemnity does not require payment as a condition precedent to recovery by the Releasees against the undersigned under this indemnity."
"(c) Long-Term Incentive Compensation. In respect of the long-term incentive award granted to the Executive in 2017 (the 2017 LTI Award), in the event that the Executives employment is terminated pursuant to Section 7(d) of this Agreement, the one-year waiting period for retirement eligibility shall not apply to the 2017 LTI Award."
"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. Notwithstanding the foregoing, no such notice of Good Reason shall be required or cure remedy be available upon Executive no longer serving as the Chief Executive Officer of the Company or Chairman of the Board as of the Transition Date and the Companys ability to cure shall not apply. If none of (i), (ii) or (iii) above has occurred, Good Reason shall also occur on December 31, 2017 and no notice of Good Reason shall be required in the event of Good Reason pursuant to this sentence."
"The first sentence of Section 12(e) of the Agreement is amended to add the following at the end of such sentence: and the Amendment dated October 23, 2017. and the second sentence is amended to add the following at the end of such sentence and with respect to the negotiation of the Amendment dated October 23, 2017 an amount not to exceed $10,000. "
"2.2 Incentive Compensation. During the Term, Executive shall be eligible to receive cash incentive compensation as determined by the Board or the Committee, in its sole discretion, from time to time. For the Companys 2017 fiscal year, Executives target annual incentive compensation shall be 45% of Executives Base Salary, and will be awarded based on the objective and/or subjective criteria established and approved by the Board or the Committee, as applicable. The Board or Committee shall have the sole discretion to determine whether Executive has earned any bonus and, if so, the amount of such bonus."
"The provisions of this Section 6 and the enhanced compensation and benefits under Section 7 are intended to assure and encourage in advance Executives continued attention and dedication to Executives assigned duties and Executives objectivity during the pendency and after the occurrence of a Change in Control of the Company. These provisions shall apply in lieu of, and expressly supersede, the provisions of Section 5 regarding severance pay and benefits upon a termination of employment, if such termination of employment occurs during the Change in Control Period (as defined below). These provisions shall terminate and be of no further force or effect beginning 12 months after a Change in Control."
"of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by the Covered Employee on an after-tax basis, of the greatest amount of 280G Amounts, notwithstanding that all or some portion of the 280G Amounts may be taxable under Section 4999 of the Code."
"8.3 Unless the Company and the Covered Employee otherwise agree in writing, any determination required under this Section 8 shall be made in writing by a nationally recognized accounting or valuation firm selected by the Company (the Accounting Firm). For purposes of determining whether any reduction under this Section 8 shall apply to any 280G Amounts, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executives residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. For purposes of making the calculations required by this Section 8, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. Any determination by the Accounting Firm shall be conclusive and binding upon the Company and Executive for all purposes. The Company and the Covered Employee will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section 8\. The Company will bear the costs and make all payments for the Firms services in connection with any calculations contemplated by this Section 8."
"Provided however that Cause will not be deemed to exist in the event of clauses (e) and (f) unless Executive has been provided with (x) thirty (30) days written notice by the Board of the act or omission constituting Cause and (y) thirty (30) days opportunity to cure such act or omission, if capable of cure."
"by such Person or Persons) assets from the Company that have a total gross fair market value equal to or more than 50% of the total gross fair market value of all of the assets of the Company immediately prior to such acquisition or acquisitions; provided, that for this Section 9.2(c), the following will not constitute a change in the ownership of a substantial portion of the Companys assets:"
"10.6 The foregoing provisions are intended to comply with or be exempt from the requirements of Section 409A so that none of the separation payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities or ambiguous terms herein will be interpreted to so comply or be exempt. For purposes of this Agreement, to the extent required to be exempt from or comply with Section 409A with respect to any separation payments or benefits, references to Executives termination of employment, Date of Termination, or other similar phrases will be references to Executives separation from service within the meaning of 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 before actual payment to Executive under Section 409A. In no event will the Company reimburse Executive for any taxes imposed or other costs incurred as result of Section 409A."
"12.1 Consent to Jurisdiction. To the extent that any court action is permitted consistent with this Agreement and the Confidentiality Agreement, the Parties hereby consent to the jurisdiction of the Superior Court of the State of California and the United States District Court for the District of Northern California. Accordingly, with respect to any such court action, each Party (a) submits to the personal jurisdiction of such courts; (b) consents to service of process; and (c) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction or service of process."
"12.8 Waiver. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving Party. The failure of any Party to require the performance of any term or obligation of this Agreement, or the waiver by any Party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach."
"from the Company, pursuant to the exercise of outstanding options, Employee will be considered to have vested only up to the Termination Date. Employee acknowledges that as of the Termination Date, Employee will have vested in [Click And Type Number] options and no more. The exercise of Employees vested options and shares shall continue to be governed by the terms and conditions of the Companys Stock Agreements."
"18. ARBITRATION. EXCEPT AS PROHIBITED BY LAW, THE PARTIES AGREE THAT ANY AND ALL DISPUTES ARISING OUT OF THE TERMS OF THIS AGREEMENT, THEIR INTERPRETATION, EMPLOYEES EMPLOYMENT WITH THE COMPANY OR THE TERMS THEREOF, OR ANY OF THE MATTERS HEREIN RELEASED, SHALL BE SUBJECT TO ARBITRATION IN SANTA CLARA COUNTY, BEFORE JUDICIAL ARBITRATION & MEDIATION SERVICES (JAMS), PURSUANT TO ITS EMPLOYMENT ARBITRATION RULES & PROCEDURES (JAMS RULES). THE ARBITRATOR MAY GRANT INJUNCTIONS AND OTHER RELIEF IN SUCH DISPUTES. THE ARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN ACCORDANCE WITH CALIFORNIA LAW, INCLUDING THE CALIFORNIA CODE OF CIVIL PROCEDURE, AND THE ARBITRATOR SHALL APPLY SUBSTANTIVE AND PROCEDURAL CALIFORNIA LAW TO ANY DISPUTE OR CLAIM, WITHOUT "
"REFERENCE TO ANY CONFLICT-OF-LAW PROVISIONS OF ANY JURISDICTION. TO THE EXTENT THAT THE JAMS RULES CONFLICT WITH CALIFORNIA LAW, CALIFORNIA LAW SHALL TAKE PRECEDENCE. THE DECISION OF THE ARBITRATOR SHALL BE FINAL, CONCLUSIVE, AND BINDING ON THE PARTIES TO THE ARBITRATION. THE PARTIES AGREE THAT THE PREVAILING PARTY IN ANY ARBITRATION SHALL BE ENTITLED TO INJUNCTIVE RELIEF IN ANY COURT OF COMPETENT JURISDICTION TO ENFORCE THE ARBITRATION AWARD. THE PARTIES TO THE ARBITRATION SHALL EACH PAY AN EQUAL SHARE OF THE COSTS AND EXPENSES OF SUCH ARBITRATION, AND EACH PARTY SHALL SEPARATELY PAY FOR ITS RESPECTIVE COUNSEL FEES AND EXPENSES; PROVIDED, HOWEVER, THAT THE ARBITRATOR MAY AWARD ATTORNEYS FEES AND COSTS TO THE PREVAILING PARTY, EXCEPT AS PROHIBITED BY LAW. THE PARTIES HEREBY AGREE TO WAIVE THEIR RIGHT TO HAVE ANY DISPUTE BETWEEN THEM RESOLVED IN A COURT OF LAW BY A JUDGE OR JURY. NOTWITHSTANDING THE FOREGOING, THIS SECTION WILL NOT PREVENT EITHER PARTY FROM SEEKING INJUNCTIVE RELIEF (OR ANY OTHER PROVISIONAL REMEDY) FROM ANY COURT HAVING JURISDICTION OVER THE PARTIES AND THE SUBJECT MATTER OF THEIR DISPUTE RELATING TO THIS AGREEMENT AND THE AGREEMENTS INCORPORATED HEREIN BY REFERENCE. SHOULD ANY PART OF THE ARBITRATION AGREEMENT CONTAINED IN THIS SECTION CONFLICT WITH ANY OTHER ARBITRATION AGREEMENT BETWEEN THE PARTIES, THE PARTIES AGREE THAT THIS ARBITRATION AGREEMENT SHALL GOVERN."
"24. Entire Agreement. This Agreement represents the entire agreement and understanding between the Company and Employee concerning the subject matter of this Agreement and Employees 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 Employees relationship with the Company, with the exception of the Confidentiality Agreement and the Stock Agreements, except as otherwise modified or superseded herein."
"As a condition of my employment with ForeScout Technologies, Inc. (the Company), and in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by Company, I agree to the following provisions of this At-Will Employment, Confidential Information, Invention Assignment, and Arbitration Agreement (this Agreement):"
"B. Nonuse and Nondisclosure. I agree that during and after my employment with the Company, I will hold in the strictest confidence and take all reasonable precautions to prevent any unauthorized use or disclosure of Company Confidential Information. I will not (i) use Company Confidential Information for any purpose whatsoever other than for the benefit of the Company in the course of my employment, or (ii) disclose Company Confidential Information to any third party without the prior written authorization of the President, CEO, or the Board of Directors of the Company. Prior to disclosure, when compelled by applicable law, I shall provide prior written notice to the President, CEO, and General Counsel of the Company (as applicable). I agree that I obtain no title to any Company Confidential Information, and that the Company retains all Confidential Information as the sole property of the Company. I understand that my unauthorized use or disclosure of Company Confidential Information during my employment may lead to disciplinary action, up to and including, immediate termination and legal action by the Company. I understand that my obligations under this Section 2.B shall continue after termination of my employment and also that nothing in this Agreement prevents me from engaging in protected activity, as described in Section 14 below."
"D. Maintenance of Records. I agree to keep and maintain adequate, current, accurate, and authentic written records of all Inventions made by me (solely or jointly with others) during the term of my employment with the Company. The records will be in the form of notes, sketches, drawings, electronic files, reports, or any other format that may be specified by the Company. As between the Company and myself, the records are and will be available to and remain the sole property of the Company at all times."
G. Exception to Assignments. I UNDERSTAND THAT THE PROVISIONS OF THIS AGREEMENT REQUIRING ASSIGNMENT OF INVENTIONS (AS DEFINED UNDER SECTION 3.A ABOVE) TO THE COMPANY DO NOT APPLY TO ANY INVENTION THAT QUALIFIES FULLY UNDER THE PROVISIONS OF CALIFORNIA LABOR CODE SECTION 2870 (ATTACHED HERETO AS EXHIBIT B). I WILL ADVISE THE COMPANY PROMPTLY IN WRITING OF ANY INVENTIONS THAT I BELIEVE MEET THE CRITERIA IN CALIFORNIA LABOR CODE SECTION 2870 AND ARE NOT OTHERWISE DISCLOSED ON EXHIBIT A TO PERMIT A DETERMINATION OF OWNERSHIP BY THE COMPANY. ANY SUCH DISCLOSURE WILL BE RECEIVED IN CONFIDENCE.
"To the fullest extent permitted under applicable law, I agree that during my employment, and for a period of twelve (12) months immediately following the termination of my relationship with the Company for any reason, whether voluntary or involuntary, with or without cause, I will not directly or indirectly solicit any of the Companys employees to leave their employment at the Company. I agree that nothing in this Section 8 shall affect my continuing obligations under this Agreement during and after this twelve (12) month period, including, without limitation, my obligations under Section 2."
"I acknowledge that I have no reasonable expectation of privacy in any Company Electronic Media Equipment or Company Electronic Media System. All information, data, and messages created, received, sent, or stored in Company Electronic Media Equipment or Company Electronic Media Systems are, at all times, the property of the Company. As such, the Company has the right to audit and search all such items and systems, without further notice to me, to ensure that the Company is licensed to use the software on the Companys devices in compliance with the Companys software licensing policies, to ensure compliance with the Companys policies, and for any other business- related purposes in the Companys sole discretion. I understand that I am not permitted to add any unlicensed, unauthorized, or non-compliant applications to the Companys technology systems, including, without limitation, open source or free software not authorized by the Company, and that I shall refrain from copying unlicensed software onto the Companys technology systems or using non-licensed software or websites. I understand that it is my responsibility to comply with the Companys policies governing use of the Companys documents and the internet, email, telephone, and technology systems to which I will have access in connection"
"(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employers equipment, supplies, facilities, or trade secret information except for those inventions that either:"
"I also acknowledge that under the Agreement, for twelve (12) months from this date, I may not directly or indirectly solicit any of the Companys employees to leave their employment at the Company. I understand that nothing in this paragraph affects my continuing obligations under the Agreement during and after this twelve (12) month period, including, without limitation, my obligations under Section 2 (Confidentiality) thereof."
"Nothing in these guidelines is intended to limit employees rights to discuss the terms, wages, and working conditions of their employment, as protected by applicable law, including any rights an employee may have under Section 7 of the National Labor Relations Act. Also, nothing in these guidelines limits or prohibits employees from filing a charge or complaint with, or otherwise communicating or cooperating with 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"
"WHEREAS, the Parties entered into an Employment Agreement dated March15, 2017 (the Employment Agreement) which replaced a prior executive employment agreement between the Parties, dated September16, 2013 (the Prior Employment Agreement) except that the provisions of Section6 of the Prior Employment Agreement (the Restrictive Covenants) were not replaced but, rather, were specifically preserved and reaffirmed as material terms of the Employment Agreement; and"
"the amounts payable under Section4(b)(i) and (ii)shall be paid out in substantially equal installments in accordance with the Companys payroll practice over nine (9)months commencing within 60 days after the Date of Termination; provided, however, that with respect to the Severance Amount, if the 60-day period begins in one calendar year and ends in a second calendar year, the Severance Amount shall begin to be paid in the second calendar year by the last day of such 60-day period, provided that the initial payment shall include a catch-up payment to cover amounts retroactive to the day immediately following the Date of Termination. Each payment pursuant to this Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section1.409A-2(b)(2). Notwithstanding the foregoing, if the Date of Termination occurs on or after July1, 2018, the Severance Amount shall be paid as a lump sum payment within sixty (60)days of the Date of Termination."
"7.The Executive shall continue to serve as a member of the Board, subject to the provisions of applicable law, the Companys certificate of incorporation, as amended, the Companys amended and restated bylaws, and this Section7\. It is understood and agreed that the Executive shall cease serving as a member of the Board on the earlier of: (i)the Executives death, (ii)the removal of the Executive by the Companys stockholders, (iii)the ending of Executives employment with the Company for any reason, (iv)the Executives voluntary refusal to stand for reelection as a director, and (v)December31, 2018 (in any event the Board Resignation Date). Executive agrees such resignation on the Board Resignation Date shall be automatic and without any further action on his part, and Executive hereby agrees to execute any additional documentation with respect thereto reasonably requested by the Company. "
" | 3. | Compensation. ---|---|--- (a) Base Salary. Company shall pay Executive a base salary (the Base Salary) at the annual rate of Four Hundred Thousand Dollars ($400,000). The Base Salary shall be payable in substantially equal periodic installments in accordance with Companys payroll practices as in effect from time to time. Company shall deduct from each such installment all amounts required to be deducted or withheld under applicable law or under any employee benefit plan in which Executive participates. The Board or an appropriate committee thereof shall, on an annual basis, review the Base Salary, which may be adjusted upward (but not downward) at Companys discretion."
"(e) Fringe Benefits. Executive shall be entitled to participate in all benefit/welfare plans and fringe benefits provided to Company senior executives. Executive understands that, except when prohibited by applicable law, Companys benefit plans and fringe benefits may be amended by Company from time to time in its sole discretion. The terms of any such benefits shall be governed by the applicable plan documents and Company policies in effect from time to time."
"(g) Indemnification. Executive shall be entitled to indemnification with respect to Executives services provided hereunder pursuant to Delaware law, the terms and conditions of Companys certificate of incorporation and/or by- laws, and Companys standard indemnification agreement for directors and officers as executed by Company and Executive. Executive shall be entitled to coverage under the Companys Directors and Officers (D&O) insurance policies that it may hold now or in the future to the same extent and in the same manner (i.e., subject to the same terms and conditions) that the Companys other executive officers are entitled to coverage under any of the Companys D&O insurance policies that it may have."
"employment does not constitute a separation of service under Section409A(a)(2)(A)(i) of the Code and Treas. Reg. 1.409A-1(h) (as the result of further services that are reasonably anticipated to be provided by Executive to Company at the time Executives employment terminates), any such payments under Section4 that constitute deferred compensation under Section409A shall be delayed until after the date of a subsequent event constituting a separation of service under Section409A(a)(2)(A)(i) of the Code and Treas. Reg. 1.409A-1(h). For purposes of clarification, this Section8(a) shall not cause any forfeiture of benefits on Executives part, but shall only act as a delay until such time as a separation from service occurs."
(b) It is intended that each installment of the payments and benefits provided under Section4 of this Agreement shall be treated as a separate payment for purposes of Section409A. Neither 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.
"(c) Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted and at all times administered in a manner that avoids the inclusion of compensation in income under Section409A, or the payment of increased taxes, excise taxes or other penalties under Section409A. The parties intend this Agreement to be in compliance with Section409A. Executive acknowledges and agrees that Company does not guarantee the tax treatment or tax consequences associated with any payment or benefit arising under this Agreement, including but not limited to consequences related to Section409A."
"(i)Primary Cash Compensation. Effective as of October 1, 2017, Employees monthly salary is $22,500 per month, representing an annual rate of $270,000 (the Base Salary). Employees Base Salary shall be reviewed annually by the Board or its Compensation Committee and the Base Salary for each fiscal year during the Employment Period shall be determined by the Board or its Compensation Committee, which may authorize an increase in Employees Base Salary for such year. In no event may Employees Base Salary be reduced below its then-current level at any time during the Employment Period other than with Employees consent or pursuant to a general wage reduction in respect of substantially all of the Companys executive officers, in which event Employees Base Salary may only be reduced to the same extent and up to the same percentage amount as the base salaries of other executive officers are reduced. Employees Base Salary shall be paid in accordance with the Companys normal periodic payroll practices. Employee will also be entitled to receive a one-time payment equal to $385,036 (the Reference Amount) upon the first occurrence of a Payment Triggering Event (defined below). If a Payment- Triggering Event occurs, then the Reference Amount will bepaid to the Employee in a lump sum no later than in the first payroll after the Payment- Triggering Event has been completed or is effective. If an equity award is granted pursuant to Section 3(a)(v) or if no Payment-Triggering Event occurs prior to June 30, 2018, then in either event Employees right to cash payment of the Reference Amount will be automatically forfeited and waived. Payment- Triggering Event means the first to occur of (1)a Qualified Financing that does not result in the issuance of any equity awards pursuant to Section 3(a)(v), and (2)the date of a Change of Control pursuant to Section 6(d) of this Agreement. Qualified Financing means any transaction or series of related transactions involving the issuance of equity securities (including any securities that are convertible into or exercisable for equity securities) resulting in gross cash proceeds of $10,000,000 or more."
"(1)Common Stock Option. Employee will receive an option (the Supplemental Option) under any then-effective Company equity incentive plan (such plan, the Applicable Plan) representing the right to purchase a number of shares of the Companys common stock equal to the lesser of (x)the Reference Amount divided by the Option Reference Price (defined below) and rounded to the next whole share, and (y)the maximum number of shares that are then available for option awards to the Employee pursuant to the Applicable Plan. The Supplemental Option will be immediately exercisable at a per share price equal to Fair Market Value (determined in accordance with the terms of the Applicable Plan) of a shares of the Companys common stock as of the Grant Date. The Option Reference Price will equal the value of an option to purchase a single share of the Companys common stock determined using the Black-Scholes model with assumptions determined in a manner consistent with those used by the Company in preparing the annual or interim financial statements filed with the SEC by the Company in its most recent periodic report on Form 10-Q or Form 10-K."
"2.3 CONFIDENTIAL INFORMATION, NON-DISCLOSURE. Employee acknowledges that the business of the Company and its affiliates is highly competitive and that the Company will provide Employee with access to Confidential Information relating to the business of the Company and its affiliates. Confidential Information means and includes the Companys confidential and/or proprietary information and/or trade secrets that have been developed or used and/or will be developed and that cannot be obtained readily by third parties from outside sources. Confidential Information includes, by way of example and without limitation, the following: information regarding customers, employees, contractors, and the industry not generally known to the public; strategies, methods, books, records, and documents; technical information concerning products, equipment, services, and processes; procurement procedures and pricing techniques; the names of and other information concerning customers, investors, and business affiliates (such as contact name, service provided, pricing for that customer, amount of services used, credit and financial data, and/or other information relating to the Companys relationship with that customer); pricing strategies and price curves; plans and strategies for expansion or acquisitions; budgets; customer lists; research; financial and sales data; trading terms; evaluations, opinions, and interpretations of information and data; marketing and merchandising techniques; prospective customers names and marks; grids and maps; electronic databases; models; specifications; computer programs; internal business records; contracts benefiting or obligating the Company; bids or proposals submitted to any third party; technologies and methods; training methods and training processes; organizational structure; salaries of personnel; payment amounts or rates paid to consultants or other service providers; and other such confidential or proprietary information. Employee acknowledges that this Confidential Information constitutes a valuable, special, and unique asset used by the Company, or its affiliates in their business to obtain a competitive advantage over their competitors. Employee further acknowledges that protection of such Confidential Information against unauthorized disclosure and use is of critical importance to the Company and its affiliates in maintaining their competitive position."
"Employee agrees that Employee will not, at any time during or after Employees employment with the Company, make any unauthorized disclosure of any Confidential Information of the Company or its affiliates, or make any use thereof, except in the carrying out of the Employees employment responsibilities hereunder. Employee also agrees to preserve and protect the confidentiality of third party Confidential Information to the same extent, and on the same basis, as the Companys Confidential Information."
"Employee agrees that this provision defining the scope of activities constituting prohibited competition with the Company is narrow and reasonable for the following reasons: (i)Employee is free to seek employment with other companies providing services that do not directly or indirectly compete with any business of the Company; (ii)Employee is free to seek employment with other companies in the banking business that do not directly or indirectly compete with any business of the Company; and (iii)there are many other companies in the banking business that do not directly or indirectly compete with any business of the Company. Thus, this restriction on Employees ability to compete does not prevent Employee from using and offering the skills that Employee possessed prior to receiving Confidential Information, specialized training, and knowledge from the Company."
"2.6 NON-SOLICITATION OF EMPLOYEES. During Employees employment, and for a period of twelve (12) months following the termination of employment for any reason, Employee will not, either directly or indirectly, call on, solicit, or induce any other employee or officer of the Company or its affiliates whom Employee had contact with, knowledge of, or association with in the course of employment with the Company to terminate his or her employment, and will not assist any other person or entity in such a solicitation."
"3.1 AT-WILL EMPLOYMENT. The Company and Employee acknowledge and agree that Employees employment is at-will and that either the Company or Employee may, at any time, with or without cause and with or without notice, terminate the employment relationship, including all compensation and benefits under this Agreement. It is the express intent of the parties that Employee is employed at-will; nothing in this Agreement or the relationship between the parties now or in the future may be construed or interpreted to create an employment relationship for a specific length of time or a right to continued employment Similarly, no manager, supervisor or employee of the Company has any authority to limit the Companys discretion to modify terms and conditions of employment. Only the Companys Board has the authority to make any such agreement and then only in writing. No implied contract concerning any employment-related decision or term or condition of employment can be established by any other statement, conduct, policy or practice. Examples of terms and conditions of employment that are within the sole discretion of the Company include, but are not limited to, the"
"c. a tender offer or exchange offer is made by any Person which is successfully completed and which results in such Person beneficially owning (within the meaning of Rule13d-3 promulgated under the Exchange Act) either (1)fifty percent (50%) or more of the Banks or the Companys outstanding shares of common stock or (2)shares of capital stock having fifty percent (50%) or more of the combined voting power of the Banks or the Companys then outstanding capital stock (other than an offer made by the Bank or Employer), and sufficient shares are acquired under the offer to cause such Person to own fifty percent (50%) or more of the voting power of the Bank or the Company; or"
"4.6 WAIVER. The failure of either party to insist, in any one or more instances, upon performance of the terms or conditions of this Agreement shall not be construed as a waiver or a relinquishment of any right granted under this Agreement or of the future performance of any such term, covenants or condition."
"$100,000 per year for ten years beginning at age 65 payable to Employee, Employees designee, or his Estate. This is intended to replace the BOLI that Employee forfeited upon leaving his former employer. Employee need not remain the President and CEO to continue to participate in the deferred compensation plan, although Employee must remain employed in some capacity up to age 65 to continue to participate, provided, if Employee dies prior to age 65 while employed by the Company, his designee and/or estate shall receive the remainder of his deferred compensation. "
"25,000 shares with cliff vesting at five years of 100% of shares. Employee need not remain the President and CEO to continue to vest in the stock grants. Should employee die before he reaches age 65, all shares shall immediately vest and shall be transferred to his estate. Notwithstanding the foregoing, the parties agree that the Company will convey the shares to minimize tax consequences to the entire shareholder groups of the Company. "
"2.2. Annual Bonus. For each fiscal year ending during the Employment Period, the Executive shall be eligible for potential awards of additional compensation (the Annual Bonus) to be based upon the achievement of one or more performance goals established by the Board or a committee thereof (the Performance Targets). The Annual Bonus shall be prorated for any partial fiscal years occurring within the Employment Period. The Executives target Annual Bonus opportunity for each fiscal year that ends during the Employment Period shall be equal to 50% of Base Salary (the Target Annual Bonus Opportunity), with the actual Annual Bonus, if any, to be based on the Companys actual performance relative to the Performance Targets. The Annual Bonus, if any, shall be paid in cash within 60 days of the fiscal year end, assuming the delivery of the relevant financial statements in a timely manner, but in no event later than March15th of the year following the end of the fiscal year for which the Annual Bonus, if any, is earned; provided, that, except as set forth in Section3, the Executive must continue to be employed by the Company through the end of the applicable fiscal year."
"3.4. Resignation from All Positions. Upon the termination of the Executives employment with the Company for any reason, the Executive shall resign, as of the date of such termination, from all positions he then holds as an officer, director, employee and member of the board of directors (and any committee thereof) of EWT Holdings I Corporation (Holdings) and its direct and indirect subsidiaries and affiliates (the Company Group). The Executive shall be required to execute such writings as are required to effectuate the foregoing, but the Executive shall be treated for all purposes as having so resigned upon termination of the Executives employment, regardless of when or whether the Executive executes any such documentation."
"4.3. Non-Solicitation of Employees. During the Restriction Period, the Executive shall not directly or indirectly contact, induce or solicit (or assist any Person to contact, induce or solicit) for employment any person who is, or within 12 months prior to the date of such solicitation was, an employee of any member of the Company Group."
"U.S.C.  101 et seq. that are owned ab initio by a member of the Company Group, the Executive assigns and agrees to assign all of his right, title and interest in all Developments (including all intellectual property rights therein) to the Company or its nominee without further compensation, including all rights or benefits therefor, including without limitation the right to sue and recover for past and future infringement. The Executive acknowledges that any rights in any Developments constituting a work made for hire under the U.S. Copyright Act, 17 U.S.C  101 et seq. are owned upon creation by the Company as the Executives employer. Whenever requested to do so by the Company, the Executive shall execute any and all applications, assignments or other instruments which the Company shall deem necessary to apply for and obtain trademarks, patents or copyrights of the United States or any foreign country or otherwise protect the interests of the Company Group. These obligations shall continue beyond the end of the Executives employment with the Company with respect to inventions, discoveries, improvements or copyrightable works initiated, conceived or made by the Executive while employed by the Company, and shall be binding upon the Executives employers, assigns, executors, administrators and other legal representatives. In connection with his execution of this Employment Agreement, the Executive has informed the Company in writing of any interest in any inventions or intellectual property rights that he holds as of the date hereof. If the Company is unable for any reason, after reasonable effort, to obtain the Executives signature on any document needed in connection with the actions described in this Section4.6, the Executive hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as the Executives agent and attorney in fact to act for and on the Executives behalf to execute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of this Section4.6 with the same legal force and effect as if executed by the Executive."
"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."
"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"
"1. In consideration of the payments and benefits to be made under the Employment Agreement, dated as of September6, 2017 (the Employment Agreement), to which Vincent Grieco (the Executive) and Evoqua Water Technologies LLC, a Delaware limited liability company (the Company) (each of the Executive and the Company, a Party and collectively, the Parties) are parties, the sufficiency of which the Executive acknowledges, the Executive, with the intention of binding himself and his heirs, executors, administrators and assigns, does hereby release, remise, acquit and forever discharge Holdings (as defined in the Employment Agreement), the Company and each of its and their subsidiaries and affiliates (the Company Affiliated Group), their present and former officers, directors, executives, shareholders, agents, attorneys, employees and employee benefit plans (and the fiduciaries thereof), and the successors, predecessors and assigns of each of the foregoing (collectively, the Company Released Parties), of and from any and all claims, actions, causes of action, complaints, charges, demands, rights, damages, debts, sums of money, accounts, financial obligations, suits, expenses, attorneys fees and liabilities of whatever kind or nature in law, equity or otherwise, whether accrued, absolute, contingent, unliquidated or otherwise and whether now known or unknown, suspected or unsuspected, which the Executive, individually or as a member of a class, now has, owns or holds, or has at any time heretofore had, owned or held, arising on or prior to the date hereof, against any Company Released Party that arises out of, or relates to, the Employment Agreement, the Executives employment with the Company or any of its subsidiaries and affiliates, or any termination of such employment, including claims (i)for severance or vacation benefits, unpaid wages, salary or incentive payments, (ii)for breach of contract, wrongful discharge, impairment of economic opportunity, defamation, intentional infliction of emotional harm or other tort, (iii)for any violation of applicable state and local labor and employment laws (including, without limitation, all laws concerning unlawful and unfair labor and employment practices) and (iv)for employment discrimination under any applicable federal, state or local statute, provision, order or regulation, and including, without limitation, any claim under Title VII of the Civil Rights Act of 1964 (Title VII), the Civil Rights Act of 1988, the Fair Labor Standards Act, the Americans with Disabilities Act (ADA), the Employee Retirement Income Security Act of 1974, as amended (ERISA), the Age Discrimination in Employment Act (ADEA), and any similar or analogous state statute, excepting only:"
"5. The Executive acknowledges that he has been given but not utilized a period of 21 days to consider whether to execute this Release. If the Executive accepts the terms hereof and executes this Release, he may thereafter, for a period of seven days following (and not including) the date of execution, revoke this Release. If no such revocation occurs, this Release shall become irrevocable in its entirety, and binding and enforceable against the Executive, on the day next following the day on which the foregoing seven-day period has elapsed. If such a revocation occurs, the Executive shall irrevocably forfeit any right to payment of the Severance Amount (as defined in the Employment Agreement) or the Benefits Continuation (as defined in the Employment Agreement), but the remainder of the Employment Agreement shall continue in full force."
"(b)Obligations to the Company. During the Employees Employment, the Employee (i)shall devote his full business efforts and time to the Company, (ii)shall not engage in any other employment, consulting or other business activity that would create a conflict of interest with the Company, (iii)shall not assist any person or entity in competing with the Company or in preparing to compete with the Company and (iv)shall comply with the Companys policies and rules, as they may be in effect from time to time. Notwithstanding the foregoing, the Employee may, subject to prior approval of the Board or Chief Executive Officer, participate in professional and charitable activities and serve on boards of directors and boards of advisors of businesses and non-profit organizations that do not compete with the Company, provided that such activities do not, individually or in the aggregate, interfere materially with the performance of the Employees duties to the Company."
"10.Indemnification and D&O Insurance. The Employee shall enter into the Companys standard Indemnification Agreement for its directors and officers. During the term of the Employees Employment, the Employee will be named as an insured on the directors and officers liability insurance policy currently maintained, or as may be maintained by the Company from time to time, at the same level of coverage applicable to active directors and officers. "
"(b) Annual Incentive Compensation. Executive shall be eligible to participate in the annual cash bonus program maintained for executive officers of the Company (the Annual Incentive Program). Executives current target under the Annual Incentive Program shall remain unchanged and, following the IPO Date, Executives minimum target annual bonus shall be equal to at least 50% of Base Salary for each year during the Employment Period in which Executive participates in the Annual Incentive Program. The actual amount of the annual bonus earned by and payable to Executive in any year shall be determined upon the satisfaction of goals and objectives established by the Compensation Committee and communicated to Executive, and shall be subject to such other terms and conditions of the Annual Incentive Program as in effect from time to time. Each bonus paid under the Annual Incentive Program shall be paid to Executive no later than March 15th of the calendar year following the calendar year in which the bonus is earned."
"(b) If Executives employment ends for any reason, except as otherwise contemplated in this Section4, Executive shall cease to have any rights to salary, bonus (if any) or other benefits, other than (i)the earned but unpaid portion of Executives Base Salary through the date of termination or resignation, (ii)any annual, long-term, or other incentive award that relates to a completed fiscal year or performance period, as applicable, and is payable (but not yet paid) on or before the date of termination or resignation, which shall be paid in accordance with the terms of such award, (iii)a lump-sum payment in respect of accrued but unused vacation days at the Executives per-business-day Base Salary rate, (iv)any unpaid expense or other reimbursements due to Executive, and (v)any other amounts or benefits required to be paid or provided by law or under any plan, program, policy or practice of the Company, provided that Executive shall not be entitled to any payment or benefit under any severance plan maintained by the Company."
"(ii) the Company shall pay Executive an annual cash bonus for the year of termination, payable at the same time as annual cash bonuses are paid to senior management, based on actual achievement of performance targets (as if Executive had remained employed through the end of the applicable performance period), subject, however, to proration based on the number of days in the applicable performance period that had elapsed prior to the date of termination; and"
"(iii) if the Executive timely elects to receive continued coverage under the Companys group health care plan pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (COBRA), the Company shall pay the employer portion of applicable COBRA premium payments for the Executives and, as applicable, Executives dependents, continued health coverage under such plan (as in effect or amended from time to time) (the COBRA Subsidy) until the earlier of: (1)"
"twelve (12)months following the Executives termination of employment, or (2)the date upon which the Executive obtains or becomes eligible for other health care coverage from a new employer or otherwise (such period referred to as the COBRA Subsidy Period). The Executive shall promptly inform the Company in writing when Executive obtains or becomes eligible for any such other health care coverage. The Executive shall be responsible for paying a share of such COBRA premiums during the COBRA Subsidy Period at active employee rates as in effect from time to time, and shall be responsible for the full unsubsidized costs of such COBRA coverage thereafter."
"(d) Termination without Cause or for Good Reason in Connection with a Change in Control. If Executives employment hereunder shall be terminated by the Company without Cause, or by Executive for Good Reason, in either case within 12 months following a Change in Control then, in addition to the payments and benefits described in Section4(c) of this Agreement, the Company shall pay Executive Executives full target bonus under the Annual Incentive Program for the year in which the termination of employment occurs."
"(i) The acquisition, other than from the Company, by any individual, entity or group (within the meaning of Section13(d)(3) or 14(d)(2) of the Securities 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 50% or more of either the then outstanding shares of the Company or the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors, but excluding, for this purpose, any such acquisition by the Company or any of its subsidiaries, or any employee benefit plan (or related trust) of the Company or its subsidiaries, or any corporation with respect to which, following such acquisition, more than 50% of, respectively, the then outstanding shares of such corporation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of all or substantially all directors is then beneficially owned, directly or indirectly, by the individuals and entities who were the beneficial owners, respectively, of shares and voting securities of the Company immediately prior to such acquisition in substantially the same proportion as their ownership, immediately prior to such acquisition, of the then outstanding shares of the Company or the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors, as the case may be;"
"In no event shall a Change in Control include the initial public offering of the Company registered on Form S-l (or any successor form under the Securities Act of 1933, as amended) (the Initial Public Offering) or any bona fide primary or secondary public offering following the occurrence of the Initial Public Offering."
"12\. Amendment and Waiver. The provisions of this Agreement may be amended or waived only with the prior written consent of the Company and Executive, and no course of conduct or failure or delay in enforcing the provisions of this Agreement shall affect the validity, binding effect or enforceability of this Agreement."
"Executive under this Agreement shall be considered a separate payment.In the event the terms of this Agreement would subject Executive to taxes or penalties under Section409A of the Code (409A Penalties), the Company and Executive shall cooperate diligently to amend the terms of the Agreement to avoid such 409A Penalties, to the extent possible. To the extent any amounts under this Agreement are payable by reference to Executives termination of employment such term and similar terms shall be deemed to refer to Executives separation from service, within the meaning of Section409A of the Code. Notwithstanding any other provision in this Agreement, to the extent any payments made or contemplated hereunder constitute nonqualified deferred compensation, within the meaning of Section409A, then (i)each such payment which is conditioned upon Executives execution of a release and which is to be paid or provided during a designated period that begins in one taxable year and ends in a second taxable year, shall be paid or provided in the later of the two taxable years and (ii)if Executive is a specified employee (within the meaning of Section409A of the Code) as of the date of Executives separation from service, each such payment that is payable upon Executives separation from service and would have been paid prior to the six-month anniversary of Executives separation from service, shall be delayed until the earlier to occur of (A)the first day of the seventh month following Executives separation from service or (B)the date of Executives death. Any reimbursement payable to Executive pursuant to this Agreement shall be conditioned on the submission by Executive of all expense reports reasonably required by Company under any applicable expense reimbursement policy, and shall be paid to Executive within 30 days following receipt of such expense reports, but in no event later than the last day of the calendar year following the calendar year in which Executive incurred the reimbursable expense. Any amount of expenses eligible for reimbursement, or in-kind benefit provided, during a calendar year shall not affect the amount of expenses eligible for reimbursement, or in-kind benefit to be provided, during any other calendar year. The right to any reimbursement or in-kind benefit pursuant to this Agreement shall not be subject to liquidation or exchange for any other benefit."
"(b)Disability. The Company may terminate the Executives employment if he is disabled and unable to perform the essential functions of the Executives then existing position or positions under this Agreement with or without reasonable accommodation for a period of 180 consecutive days or 240 non- consecutive days in any 12-month period. 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 Chief Executive Officer position 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 selected by the Executive as to whether the Executive is so disabled or how long such disability is expected to continue (provided that if the Company disputes the certification from such physician selected by the Executive, then the Executive will select a second physician reasonably acceptable to the Company and with whom the Executive has had no prior relationship to provide a new certification, and the original certification from the Executives first selected physician will be of no effect), and such certification (from the first or second physician, as the case may be) shall for the purposes of this Agreement be conclusive of the issue. The Executive shall cooperate with any reasonable request of the physician in connection with such certification. If such question shall arise and the Executive shall fail to submit such certification, the Companys determination of such issue shall be binding on the Executive. Nothing in this Section3(b) shall be construed to waive the Executives rights, if any, under law including, without limitation, the Family and Medical Leave Act of 1993, 29 U.S.C. 2601 et seq. Mass. General Laws Chapter 151B and/or the Americans with Disabilities Act, 42 U.S.C. 12101 et seq."
(d)Termination Without Cause. The Company may terminate the Executives employment hereunder at any time without Cause. Any termination by the Company of the Executives employment under this Agreement which does not constitute a termination for Cause under Section3(c) and does not result from the death or disability of the Executive under Section3(a) or (b)shall be deemed a termination without Cause.
"(e)Termination by the Executive. The Executive may terminate his employment hereunder at any time for any reason, including but not limited to Good Reason. For purposes of this Agreement, Good Reason shall mean that the Executive has complied with the Good Reason Process (hereinafter defined) following the occurrence of any of the following events: (i)a material diminution in the Executives responsibilities, authority or duties; (ii)a material diminution in the Executives Base Salary except for across-the-board salary reductions based on the Companys financial performance similarly affecting all or substantially all senior management employees of the Company; (iii)a more than fifty (50)mile change in the geographic location at which the Executive provides services to the Company; or (iv)the material breach of this Agreement by the Company. Good Reason Process shall mean that (i)the Executive reasonably determines in good faith that a Good Reason condition has occurred; (ii)the Executive notifies the Company in writing of the first occurrence of the Good Reason condition within 60 days of the first occurrence of such condition; (iii)the Executive cooperates in good faith with the Companys efforts, for a period not less than 30 days following such notice (the Cure Period), to remedy the condition; (iv)notwithstanding such efforts, the Good Reason condition continues to exist; and (v)the Executive terminates his employment within 60 days 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."
"(g)Date of Termination. Date of Termination shall mean: (i)if the Executives employment is terminated by his death, the date of his death; (ii)if the Executives employment is terminated on account of disability under Section3(b) or by the Company for Cause under Section3(c), the date on which Notice of Termination is given; (iii)if the Executives employment is terminated by the Company under Section3(d), the date on which a Notice of Termination is given; (iv)if the Executives employment is terminated by the"
"(a)Change in Control Payments. During the Term, if within fifteen (15)months after a Change in Control, the Executives employment is terminated by the Company without Cause as provided in Section3(d) or the Executive terminates his employment for Good Reason as provided in Section3(e), then, subject to the signing of the Separation Agreement (given to the Executive within five (5)business days after the Date of Termination) by the Executive and the Separation Agreement becoming irrevocable and fully effective, all within 60 days after the Date of Termination,"
"continuation, then the Company shall pay to the Executive a monthly cash payment for twelve (12)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 and dental insurance to the Executive if the Executive had remained employed by the Company; and"
"(iii)the amounts payable under this Section5(a) shall be paid or commence to be paid within 60 days after the Date of Termination; provided, however, that if the 60-day period begins in one calendar year and ends in a second calendar year, such payment shall be paid or commence to be paid in the second calendar year by the last day of such 60-day period."
"(iii)The determination as to whether a reduction in the Aggregate Payments shall be made pursuant to Section5(c)(i) shall be made by a nationally recognized accounting firm selected by the Company (the Accounting Firm), which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the Executive. Any determination by the Accounting Firm shall be binding upon the Company and the Executive."
"(d)The parties intend that this Agreement shall 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."
"(b)Third-Party Agreements and Rights. The Executive hereby confirms that the Executive is not bound by the terms of any agreement with any previous employer or other party which restricts in any way the Executives use or disclosure of information or the Executives engagement in any business. The Executive represents to the Company that the Executives execution of this Agreement, the Executives employment with the Company and the performance of the Executives proposed duties for the Company shall 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 shall 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 shall 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."
"(d)Relief. The Executive agrees that it would be difficult to measure any damages caused to the Company which might result from any breach by the Executive of the promises set forth in this Section7, and that in any event money damages would be an inadequate remedy for any such material breach. Accordingly, notwithstanding Section8 of this Agreement, the Executive agrees that if the Executive materially breaches, or proposes to materially breach, any portion of this Agreement, the Company shall be entitled, in addition to all other remedies that it may have, to an injunction or other appropriate equitable relief to restrain any such breach without showing or proving any actual damage to the Company. In addition, in the event the Executive materially breaches this Section7 during a period when he is receiving severance payments pursuant to Section4 or Section5 hereof, the Company shall have the right to suspend or terminate such severance payments. Such suspension or termination shall not limit the Companys other options with respect to relief for such breach and shall not relieve the Executive of his duties under this Agreement."
"9.Consent to Jurisdiction. To the extent that any court action is permitted consistent with or to enforce Section8, the parties hereby consent to the jurisdiction of the Superior Court of The Commonwealth of Massachusetts and the United States District Court for the District of Massachusetts. Accordingly, with respect to any such court action, the Executive (a)submits to the personal jurisdiction of such courts; (b)consents to service of process; and (c)waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction or service of process. "
"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). "
"C.The Parties have made commitments to each other on a variety of important issues concerning Executives employment, including the performance that will be expected of Executive, the compensation Executive will be paid, how long and under what circumstances Executive will remain employed and the financial details relating to any decision that either the Company or Executive may make to terminate this Agreement."
"1. Employment Period. The Company shall continue to employ Executive during the Employment Period and Executive shall continue to remain in the employ of the Company and to provide services during the Employment Period in accordance with the terms of this Agreement. The Employment Period shall be the period beginning on the Effective Date and ending on December 31, 2019 unless sooner terminated as provided herein. The Employment Period shall automatically be extended for one (1) additional year beginning on January 1, 2019 and on each January 1 thereafter unless either Party notifies the other Party, by written notice delivered no later than ninety (90) days prior to such January 1, that the Employment Period shall not be extended for an additional year. Notwithstanding any provision of this Agreement to the contrary, if a Change in Control occurs during the Employment Period, this Agreement shall remain in effect for the two (2)-year period following the Change in Control and shall then terminate."
"2. Duties. During the Employment Period, Executive shall devote Executives full business time, energies and talents to serving as Senior Vice President and Chief Financial Officer of the Company, at the direction of the Companys President and Chief Executive Officer (the CEO). Executive shall have such duties and responsibilities as may be assigned to Executive from time to time by the CEO, which duties and responsibilities shall be commensurate with Executives position, shall perform all duties assigned to Executive faithfully and efficiently, subject to the direction of the CEO and shall have such authorities and powers as are inherent to the undertakings applicable to Executives position and necessary to carry out the "
"responsibilities and duties required of Executive hereunder. Executive shall perform the duties required by this Agreement at the Companys primary location in Golden Valley, Minnesota unless the nature of such duties requires otherwise; provided, however, that Executive shall be required to be present at the Companys headquarters in Iowa City, Iowa at such times as Executive, in her reasonable discretion, determines is necessary or advisable to faithfully and efficiently discharge the duties of her employment hereunder. Notwithstanding the foregoing provisions of this Section 2, during the Employment Period, Executive may devote reasonable time to activities other than those required under this Agreement, including activities of a charitable, educational, religious or similar nature (including professional associations) to the extent such activities do not, in the reasonable judgment of the CEO, inhibit, prohibit, interfere with or conflict with Executives duties under this Agreement or conflict in any material way with the business of the Company or an Affiliate; provided, however, that Executive shall not serve on the board of directors of any business (other than the Company or an Affiliate) or hold any other position with any business without receiving the prior written consent of the CEO."
"(b) Termination for Cause, Death, Disability or Voluntary Resignation. If the Termination Date occurs during the Employment Period and is a result of a Termination for Cause, Executives death or Disability, or termination by Executive other than for Good Reason, then, other than the Minimum Benefits, Executive shall have no right to benefits under this Agreement (and the Company shall have no obligation to provide any such benefits) for periods after the Termination Date."
"(ii) To the extent any portion of the Severance Amount exceeds the safe harbor amount described in Treasury Regulation 1.409A-1(b)(9)(iii)(A), Executive shall receive such portion of the Severance Amount that exceeds the safe harbor amount in a single lump sum payment payable on the first Company payroll date that occurs on or following the sixtieth (60th) day following the Termination Date."
"to the public (collectively, Confidential Information). Executive shall not directly or indirectly use, disclose, copy or make lists of Confidential Information for the benefit of anyone other than the Company, either during or after Executives employment with the Company, except to the extent that such information is or thereafter becomes lawfully available from public sources, or such disclosure is authorized in writing by the Company, required by law or any competent administrative agency or judicial authority, or otherwise as reasonably necessary or appropriate in connection with the performance by Executive of Executives duties hereunder. If Executive receives a subpoena or other court order or is otherwise required by law to provide information to a governmental authority or other person concerning the activities of the Company or any of its Affiliates, or Executives activities in connection with the business of the Company or any of its Affiliates, Executive shall immediately notify the Company of such subpoena, court order or other requirement and deliver forthwith to the Company a copy thereof and any attachments and non-privileged correspondence related thereto. Executive shall take reasonable precautions to protect against the inadvertent disclosure of Confidential Information. Executive shall abide by the Companys reasonable policies, as in effect from time to time, respecting avoidance of interests conflicting with those of the Company and its Affiliates. In this regard, Executive shall not directly or indirectly render services to any person or entity where Executives service would involve the use or disclosure of Confidential Information. Executive shall not use any Confidential Information to guide Executive in searching publications or other publicly available information, selecting a series of items of knowledge from unconnected sources and fitting them together to claim that Executive did not violate any agreements set forth in this Agreement."
"(iv) Serve as the agent, broker or representative of, or otherwise assist, any person or entity in obtaining services or products from any Financial Institution within the Restrictive Area, with respect to products, activities or services that Executive devoted time to on behalf of the Company or any of its Affiliates and that compete in whole or in part with the products, activities or services of the Company or any of its Affiliates."
"15. Legal Fees. All reasonable legal fees and related expenses (including the costs of experts, evidence and counsel) paid or incurred by Executive pursuant to any dispute or question of interpretation relating to this Agreement shall be paid or reimbursed by the Company if Executive is successful on the merits pursuant to a legal judgment or arbitration."
"(e) Base Compensation means the amount equal to the sum of (i) the greater of Executives then-current Annual Base Salary or Executives Annual Base Salary as of the date one (1) day prior to the Change in Control, and (ii) the amount of the Incentive Bonus paid (or payable) for the most recently completed fiscal year of the Company."
"(iii) the consummation by the Company of: (A) a merger or consolidation if the shareholders immediately before such merger or consolidation do not, as a result of such merger or consolidation, own, directly or indirectly, more than fifty percent (50%) of the combined voting power of the then outstanding Voting Securities of the entity resulting from such merger or consolidation in substantially the same proportion as their ownership of the combined voting power of the Voting Securities of the Company outstanding immediately before such merger or consolidation; or (B) a complete liquidation or dissolution or an agreement for the sale or other disposition of all or substantially all of the assets of the Company."
"Notwithstanding any provision in this definition to the contrary, a Change in Control shall not be deemed to occur solely because fifty percent (50%) or more of the combined voting power of the then outstanding securities of the Company are acquired by (A) a trustee or other fiduciary holding securities under one (1) or more employee benefit plans maintained for employees of the Company or an Affiliate or (B) any corporation that, immediately prior to such acquisition, is owned directly or indirectly by the shareholders in the same proportion as their ownership of stock immediately prior to such acquisition."
"(iii) relocation of Executives primary place of employment by more than twenty-five (25) miles from Executives primary place of employment immediately following the Effective Date, or if applicable, prior to the Covered Period, or a requirement that Executive engage in travel that is materially greater than prior to the Covered Period;"
"(ee) Specified Employee means any person who is a key employee (as defined in Code Section 416(i) without regard to paragraph (5) thereof), as determined by the Company based upon the twelve (12)-month period ending on each December 31st (such twelve (12)-month period is referred to below as the identification period). If Executive is determined to be a key employee, Executive shall be treated as a Specified Employee for purposes of this Agreement during the twelve (12)-month period that begins on the April 1 following the close of the identification period. For purposes of determining whether Executive is a key employee, compensation means Executives W-2 compensation as reported by the Company for a particular calendar year."
"(b) Accrued Salary and Paid Time Off. Executive shall be entitled to a lump sum payment in an amount equal to Executives earned but unpaid annual base salary and accrued but unused paid time off for the period ending on the Termination Date, with such payment to be made on the first payroll date following the Termination Date."
"(d) Executive Acknowledgement. Executive acknowledges that, subject to fulfillment of all obligations provided for herein, Executive has been fully compensated by the Company, including under all applicable laws, and that nothing further is owed to Executive with respect to wages, bonuses, severance, other compensation, or benefits. Executive further acknowledges that the Severance Payments (other than (b) and (c) immediately above) are consideration for Executives promises contained in this Agreement, and that the Severance Payments are above and beyond any wages, bonuses, severance, other compensation, or benefits to which Executive is entitled from the Company under the terms of Executives employment or under any other contract or law that Executive would be entitled to absent execution of this Agreement."
"3. Termination of Benefits. Except as provided in Section 2 above or as may be required by law, Executives participation in all employee benefit (pension and welfare) and compensation plans of the Company shall cease as of the Termination Date. Nothing contained herein shall limit or otherwise impair Executives right to receive pension or similar benefit payments that are vested as of the Termination Date under any applicable tax-qualified pension or other plans, pursuant to the terms of the applicable plan."
"4. Release of Claims and Waiver of Rights. Executive, on Executives own behalf and that of Executives heirs, executors, attorneys, administrators, successors, and assigns, fully and forever releases and discharges the Company, its predecessors, successors, parents, subsidiaries, affiliates, and assigns, and its and their directors, officers, trustees, employees, agents, and shareholders, both in their individual and official capacities, and the current and former trustees and administrators of each retirement and other benefit plan applicable to the employees and former employees of the Company, both in their official and individual capacities (the Releasees), from all liability, claims, demands, actions, and causes of action Executive now has, may have had, or may ever have, whether currently known or unknown, relating to acts or omissions as of or prior to Executives execution of this Agreement (the Release and Waiver), including liability, claims, demands, actions, and causes of action: "
"(a) Excluded from the Release and Waiver are any claims or rights arising pursuant to this Agreement and any claims or rights that cannot be waived by law, as well as Executives right to file a charge with an administrative agency or participate in any agency investigation, including with the Equal Employment Opportunity Commission. Executive is, however, waiving the right to recover any money in connection with a charge or investigation and the right to recover any money in connection with a charge filed by any other individual or by the Equal Employment Opportunity Commission or any other federal or state agency, except where such waivers are prohibited by law."
"12. Governing Law. This Agreement shall be governed by and construed under the laws of the State of Minnesota, without regard to principles of conflict of laws (whether in the State of Minnesota or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Minnesota."
"(b) Incentive Compensation. For 2018 and each successive fiscal year of the Company ending during the Term, Executive shall be eligible to receive annual cash incentive compensation (the Incentive Compensation). Executive shall be eligible to receive a target annual cash bonus of 150% of eligible earnings (as defined below), as may hereafter be increased (the Target Bonus), with the opportunity to receive a maximum annual cash bonus subject to and in accordance with the terms of the applicable annual cash bonus plan as in effect from time to time. For purposes of this Agreement, eligible earnings in respect of such bonus year shall be calculated in accordance with the applicable annual cash bonus plan as in effect from time to time. Such annual cash bonus shall be paid in no event later than March 15th of the taxable year following the end of the taxable year to which the performance targets relate, provided that Executive is employed by the Company or one of its Affiliates through the date specified in the annual cash bonus plan (or, if earlier, the expiration of the Term) and any performance targets established by the Committee for the applicable fiscal year have been achieved."
"(c) Inducement Equity Grant. Within ten (10) days following the Effective Date, Executive shall be granted an inducement equity award with an aggregate grant date fair value of $5 million consisting of: (i) $2.5 million in restricted stock units and (ii) $2.5 million in non-qualified stock options, with the restricted stock units vesting in equal annual installments over a three-year period and with the options becoming exercisable in equal annual installments over a four-year period, in each case, based on continued service through the vesting date."
"(c) Business Expenses. Upon submission of proper invoices in accordance with the Companys normal procedures, Executive shall be entitled to receive prompt reimbursement of all reasonable out-of-pocket business, entertainment and travel expenses incurred by Executive in connection with the performance of Executives duties hereunder that have been incurred in accordance with the Companys business expense and travel and entertainment policies in effect from time to time. Such reimbursement shall be made as soon as practicable and in no event later than the end of the calendar year following the calendar year in which the expenses were incurred."
"(a) Termination by the Company for Cause or by Executive Other Than for Good Reason. If Executives employment is terminated (A) by the Company for Cause or (B) by Executive for any reason, other than for Good Reason, in either case, during the Term, the Company shall provide Executive with the following payments and benefits:"
"(v) subject to Executives compliance with Sections 9 and 12(h) hereof, the Company shall provide for the 12-month period beginning on the date on which Executives employment terminates, or until Executive begins other full-time employment with a new employer, whichever occurs first, outplacement services that are directly related to the type of services Executive provided to the Company and are actually provided by an outplacement services firm, paid by the Company; provided, however, the cost of the outplacement services may not exceed $50,000."
"and which coverage shall become secondary to any Medicare coverage for which Executive becomes eligible) and Executive shall pay for such benefits at the same cost that active employees of the Company are required to pay for such benefits from time to time; provided, however, the Parties agree to cooperate such that the continued coverage is, to the extent practicable, provided in a manner so as to minimize adverse tax consequences to the Company under Section 4980D of the Code; provided, further, continued coverage shall cease at such time as Executive becomes eligible for coverage with a subsequent employer; and"
"(g) No Mitigation. Executive shall not be required to mitigate the amount of any payment provided for under this Agreement by seeking other employment or otherwise and, except as provided in Sections 7(d)(iv) or (v) or 7(e)(iv) or (v) above, no such payment shall be offset or reduced by the amount of any compensation or benefits provided to Executive in any subsequent employment."
"(a) Reduction of Payments in Certain Circumstances. Notwithstanding anything to the contrary contained herein (or any other agreement entered into by and between the Company and Executive, or any incentive arrangement or plan offered by the Company), in the event that any amount or benefit paid or distributed to Executive pursuant to this Agreement, taken together with any amounts or benefits otherwise paid to Executive by the Company or any Affiliate of the Company (collectively, the Covered Payments), would constitute an excess parachute payment as defined in Section 280G of the Code, and would thereby subject Executive to an excise tax under Section 4999 of the Code (an Excise Tax), the provisions of this Section 8 shall apply. If the aggregate present value (as determined for purposes of Section 280G of the Code) of the Covered Payments exceeds the amount which can be paid to Executive without Executive incurring an Excise Tax, then, solely to the extent that Executive would be better off on an after tax basis by receiving the maximum amount which may be paid hereunder without Executive becoming subject to the Excise Tax, as determined by a nationally recognized accounting firm designated by the Company (the Accounting Firm) with the consent of the Executive (which consent shall not be unreasonably withheld or delayed), the amounts payable to Executive under this Agreement (or any other agreement by and between the Executive and"
"(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"
"cease doing business with, or to reduce its current or contemplated level of business with, the Company or such Affiliate, or in any way interfere with the relationship between any such customer, supplier, licensee or business relation, on the one hand, and the Company or any such Affiliate, on the other hand; or (iv) solicit, induce, encourage or persuade, or attempt to solicit, induce, encourage or persuade any potential customer, supplier, licensee or other potential business relation of the Company or any Affiliate of the Company, whom the Company had solicited, was attempting to solicit, or had identified for solicitation during the last twelve (12) months of Executives employment with the Company and whom or which Executive knew to be such a potential customer, supplier, licensee or other potential business relation, in each case, to cease doing business with, or to reduce its contemplated level of business with, the Company or such Affiliate, or in any way interfere with the relationship between any such potential customer, supplier, licensee or other potential business relation, on the one hand, and the Company or any such Affiliate, on the other hand."
"(c) Non-Competition. From the Effective Date through the third anniversary of the Executives termination date, Executive shall not, directly or indirectly, on Executives own behalf or by, through, or on behalf of, another Person, own, manage, operate, control, be employed by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in real estate brokerage, the franchising of real estate brokerages, employee relocation business, title or settlement services, technology-related businesses supporting any of the foregoing or any other business of the same type as any business in which the Company or any of its Affiliates is engaged on the date of termination of Executives employment or in which they have proposed, on or prior to such date, to be engaged in on or after such date and in which the Executive has been involved to any extent (other than de minimis) at any time during the two (2) year period ending with the date of termination of such Executives employment, anywhere in the world in which the Company or its Affiliates conduct business. Nothing in this Section 9(c) shall prohibit Executive from being a passive owner of not more than 4.99% of the outstanding equity interests of any entity so long as Executive has no active participation in the business of such corporation."
"(f) Nondisparagement. Executive covenants that during and following the Term, Executive will not disparage or encourage or induce others to disparage the Company or its Affiliates, together with all of their respective past and present directors and officers, as well as their respective past and present managers, officers, shareholders, partners, employees, agents, attorneys, servants and customers and each of their predecessors, successors and assigns (collectively, the Company Entities and Persons); provided that such limitation shall extend to past and present managers, officers, shareholders, partners, employees, agents, attorneys, servants and customers only in their capacities as such or in respect of their relationship with the Company and its Affiliates. The term disparage includes, without limitation, comments or statements adversely affecting in any manner (i) the conduct of the business of the Company Entities and Persons, or (ii) the business reputation of the Company Entities and Persons. Nothing in this Agreement is intended to or shall prevent either Party from providing testimony in response to a valid subpoena, court order, regulatory request or other judicial, administrative or legal process or otherwise as required by law or from making any statement in any document filed with the U.S. Securities and Exchange Commission. Either party shall also be permitted to refute any incorrect statements made about him or it by the other party."
"in reasonable detail, and in no event later than the calendar year following the year in which the expenses are incurred. Executive agrees that, in the event Executive is subpoenaed by any person or entity (including, but not limited to, any government agency) to give testimony (in a deposition, court proceeding or otherwise) which in any way relates to Executives employment by the Company, Executive will, to the extent not legally prohibited from doing so, give prompt notice of such request to the Companys General Counsel so that the Company may contest the right of the requesting person or entity to such disclosure before making such disclosure. Nothing in this provision shall require Executive to violate Executives obligation to comply with valid legal process. Executive shall also not, directly or indirectly, direct, encourage, assist, or advise any non-governmental third party to institute, commence or prosecute any claims, rights or causes of action in law or in equity in any forum or proceeding whatsoever against the Company or its Affiliates."
"(i) Arbitration. Except for the Company or its Affiliates right to obtain injunctive relief in aid of arbitration for violation of Section 9 of this Agreement, any controversy, dispute or claim arising out of or relating to this Agreement, or its interpretation, application, implementation, breach or enforcement which the parties are unable to resolve by mutual agreement, shall be settled by submission by either party of"
"(ii) Remedies. All remedies hereunder are cumulative, are in addition to any other remedies provided for by law and may, to the extent permitted by law, be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed to be an election of such remedy or to preclude the exercise of any other remedy."
"(g) Withholding. The Company shall be entitled to withhold the amount, if any, of all taxes of any applicable jurisdiction required to be withheld by an employer with respect to any amount paid to Executive hereunder. The Company, in its sole and absolute discretion, shall make all determinations as to whether it is obligated to withhold any taxes hereunder and the amount thereof."
"(i) Resignation as Officer or Director. Upon a termination of employment for any reason, Executive shall resign each position (if any) that Executive then holds as an officer or director of the Company and any of its Affiliates, as well as any positions Executive holds as a trustee or fiduciary of any employee benefit plan maintained by the Company. Executives execution of this Agreement shall be deemed the grant by Executive to the officers of the Company of a limited power of attorney to sign in Executives name and on Executives behalf any such documentation as may be required to be executed solely for the limited purposes of effectuating such resignations"
"(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."
"(n) Inconsistencies. In the event of any inconsistency between any provision of this Agreement and any provision of any employee handbook, personnel manual, program, policy, or arrangement of the Company or its Affiliates (including, without limitation, any provisions relating to notice requirements and post-employment restrictions), the provisions of this Agreement shall control, unless Executive otherwise agrees in a writing that expressly refers to the provision of this Agreement whose control he is waiving."
"other indemnification agreement entered into between Executive and the Company or rights under any directors and officers insurance policy; (d) Executives ability to bring appropriate proceedings to enforce the Release; (e) any rights under applicable equity agreements and (f) any rights or claims Executive may have that cannot be waived under applicable law (collectively, the Excluded Claims). Executive further acknowledges and agrees that, except with respect to Excluded Claims, the Company and the Releasees have fully satisfied any and all obligations whatsoever owed to Executive arising out of Executives employment with the Company or any of the Releasees, and that no further payments or benefits are owed to Executive by the Company or any of the Releasees."
"6. The exclusive venue for any disputes arising hereunder shall be the state or federal courts located in the State of Delaware, 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."
"7. The Release and the rights and obligations of the parties hereto shall be governed and construed in accordance with the laws of the state of Delaware. If any provision hereof is unenforceable or is held to be unenforceable, such provision shall be fully severable, and this document and its terms shall be construed and enforced as if such unenforceable provision had never comprised a part hereof, the remaining provisions hereof shall remain in full force and effect, and the court construing the provisions shall add as a part hereof a provision as similar in terms and effect to such unenforceable provision as may be enforceable, in lieu of the unenforceable provision."
"1. Employment. By this Agreement, Employer and Employee set forth the terms of Employers employment of Employee on and after the Effective Date. Any prior agreements or understandings with respect to Employees employment by Employer are canceled as of the Effective Date. Notwithstanding the preceding sentence, except as provided in Section 13 of this Agreement, all stock options, restricted shares and other long term incentive awards granted to Employee prior to the Effective Date, benefit plans in which Employee is eligible for participation and any Employer policies to which Employee is subject shall continue in effect in accordance with their respective terms and shall not be modified, amended or cancelled by this Agreement. "
"9. Surrender of Material Upon Termination. Employee hereby agrees that upon cessation of Employees employment, for whatever reason and whether voluntary or involuntary, Employee will immediately surrender to Employer all of the property and other things of value in his possession or in the possession of any person or entity under Employees control that are the property of Employer or any of its Affiliates, including without any limitation all personal notes, drawings, manuals, documents, photographs or the like, including copies and derivatives thereof, and e-mails and other electronic and digital information of all types regardless of where or the type of device on which such materials may be stored by Employee, relating directly or indirectly to any Information, materials or New Developments, or relating directly or indirectly to the business of Employer or any of its Affiliates. "
"(i) This agreement to arbitrate and any resulting arbitration award are enforceable under and subject to the Federal Arbitration Act, 9 U.S.C.  1 et seq. (FAA). If the FAA is held not to apply for any reason, then Ohio Revised Code Chapter 271l regarding the enforceability of arbitration agreements and awards will govern this Agreement and the arbitration award."
"(h) Employer and Employee recognize that a primary benefit each derives from arbitration is avoiding the delay and costs normally associated with litigation. Therefore, neither party will be entitled to conduct any discovery prior to the arbitration hearing except that: (i) Employer will furnish Employee with copies of all non-privileged documents in Employees personnel file; (ii) if the claim is for discharge, Employee will furnish Employer with records of earnings and benefits relating to Employees subsequent employment (including self-employment) and all documents relating to Employees efforts to"
"(i) Nothing herein will prevent either party from taking the deposition of any witness where the sale purpose for taking the deposition is to use the deposition in lieu of the witness testifying at the hearing and the witness is, in good faith, unavailable to testify in person at the hearing due to poor health, residency and employment more than 50 miles from the hearing site, conflicting travel plans or other comparable reason."
"11. Covenant Not to Compete, No Interference; No Solicitation. For purposes of this Section 11 only, the: term Employer shall mean, collectively, Employer and each of its Affiliates. At all times during the term of this Agreement and 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 will not engage in any business offering services related to the current business of Employer, whether as a principal, partner, joint venture, agent, employee, salesman, consultant, director or officer, where such position would involve Employee in any business activity in competition with Employer. This restriction will be limited to the geographical area where Employer is then engaged in such competing business activity or to such other geographical area as a court shall find reasonably necessary to protect the goodwill and business of Employer. "
"12. Goodwill. During the term of this Agreement and thereafter, Employee will not disparage Employer or any of its Affiliates in any way which could adversely affect the goodwill, reputation and business relationships of Employer or any of its Affiliates with the public generally, or with any of their customers, suppliers or employees, and Employer will not disparage Employee. Employee understands and agrees that Employer shall be entitled to make any such public disclosures as are required by applicable law, rule or regulation regarding Employee, including termination of Employees employment with Employer, and that any public disclosures so made by Employer and other statements materially consistent with such public disclosures shall not be restricted in any manner by this Section 12. "
"C. Employer may terminate this Agreement immediately, upon written notice to Employee, for Cause. For purposes of this Agreement, Employer shall have Cause to terminate this Agreement only if Employers Board of Directors determines that there has been fraud, misappropriation, embezzlement or misconduct constituting serious criminal activity on the part of Employee. Upon termination for Cause, Employee shall be entitled to receive only Employees accrued compensation hereunder, whether Base Salary, Bonus or otherwise, to the date of termination."
"(ii) all outstanding stock options and other incentive awards issued by Employer to Employee that are not vested and exercisable at the time of the termination of this Agreement shall become immediately vested and exercisable (and Employee shall be afforded the opportunity to exercise them until the earlier of (a) the latest date, determined in accordance with the terms of such stock options or awards, that would apply if such stock options or awards had become vested and exercisable immediately before the termination of this Agreement or (b) the end of the Current Term) and the restrictions applicable to all outstanding restricted stock issued by Employer to Employee shall lapse upon the termination of this Agreement;"
"(v) for the remainder of the Current Term, Employer shall continue to provide Employee with medical, dental, vision and group term life coverage comparable to the medical, dental, vision and group term life coverage in effect for Employee immediately prior to the termination of this Agreement (with the cost of such benefits shared between Employee and Employer on a basis comparable to the cost-sharing of such benefits immediately prior to the termination of this Agreement), and, to the extent that Employee would have been eligible for any post-retirement medical, dental, vision or group term life benefits from Employer if Employee had continued in employment through the end of the Current Term, Employer shall provide such post-retirement benefits to Employee after the end of the Current Term."
"(vi) For purposes of this Agreement (including but not limited to Sections 13.D.(iii), (iv) and (v) and 13.E.(iii), (iv), and (v)), any reference to the termination of this Agreement or to the termination of Employees employment with Employer shall mean and require that, as of the date of such termination, Employees services for Employer and its Affiliates shall have completely ceased or that Employee shall have otherwise separated from service with Employer and its Affiliates within the meaning of Treasury Regulation Section 1.409-1(h)."
"5.2 Third-Party Agreements and Information. Executive represents and warrants that Executives employment by the Company does not conflict with any prior employment or consulting agreement or other agreement with any third party, and that Executive will perform Executives duties to the Company without violating any such agreement. Executive represents and warrants that Executive does not possess confidential information arising out of prior employment, consulting, or other third party relationships, that would be used in connection with Executives employment by the Company, except as expressly authorized by that third party. During Executives employment by the Company, Executive will use in the performance of Executives duties only information that is generally known and used by persons with training and experience comparable to Executives own, common knowledge in the industry, otherwise legally in the public domain, or obtained or developed by the Company or by Executive in the course of Executives work for the Company."
"7.2 Termination Without Cause or Resignation for Good Reason. In the event Executives employment with the Company is terminated by the Company without Cause (and other than as a result of Executives death or Disability (as defined below)) or Executive resigns his employment for Good Reason, then provided such termination or resignation constitutes a separation from service (as defined under Treasury Regulation Section 1.409A-1(h), without regard to any alternative definition thereunder, a Separation from Service), and provided that Executive satisfies the Release Requirement in Section 8 below, the Company shall provide Executive with the following Severance Benefits:"
"7.2.1 Severance Payments. Severance pay in the form of continuation of Executives Base Salary for a period of twelve (12) months following termination, subject to required payroll deductions and tax withholdings (the Severance Payments). Subject to Section 8 below, the Severance Payments shall be made on the Companys regular payroll schedule in effect following Executives termination date; provided, however that any such payments that are otherwise scheduled to be made prior to the Release Effective Date (as defined below) shall instead accrue and be made on the first administratively practicable payroll date following the Release Effective Date. For such purposes, Executives final Base Salary will be calculated prior to giving effect to any reduction in Base Salary that would give rise to Executives right to resign for Good Reason."
"7.2.2 Health Care Continuation Coverage Payments. If Executive timely elects continued coverage under COBRA, the Company will pay Executives COBRA premiums to continue Executives coverage (including coverage for Executives eligible dependents, if applicable) (COBRA Premiums) through the period starting on the termination date and ending twelve (12) months after the termination date (the COBRA Premium Period); provided, however, that the Companys provision of such COBRA Premium benefits will immediately cease if during the COBRA Premium Period Executive becomes eligible for group health insurance coverage through a new employer or Executive ceases to be eligible for COBRA continuation coverage for any reason, including plan termination. In the event Executive becomes covered under another employers group health plan or otherwise ceases to be eligible for COBRA during the COBRA Premium Period, Executive must immediately notify the Company of such event. The COBRA Premiums paid by the Company shall be treated as taxable income to Executive."
"7.2.4 Pro Rata Bonus. Executive shall be eligible to receive, based on the good faith determination of the Board or the Compensation Committee thereof, a pro rata Performance Bonus based on actual results and Executives period of employment during the fiscal year in which termination occurred (the Pro Rata Bonus), on the date when other bonuses are paid for the fiscal year."
"14.2 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 to the extent possible in keeping with the intent of the parties."
"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 $275,000, 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."
"(ii) Disability shall mean the Executive is entitled to and has begun to receive long-term disability benefits under the long-term disability plan of the Company in which the Executive participates, or, if there is no such plan, the Executives inability, due to physical or mental ill health, to perform the essential functions of the Executives job, with or without a reasonable accommodation, for 180 days out of any 270 day consecutive day period."
"(c) Section409A. If the Executive is a specified employee for purposes of Section409A, any Severance Amount required to be paid pursuant to Section3.2 which non-qualified deferred compensation that is subject to Section409A shall commence on the day after the first to occur of (i)the day which is six months from the Termination Date, and (ii)the date of the Executives death. For purposes of this Employment Agreement, the terms terminate, terminated and termination mean a termination of the Executives employment that constitutes a separation from service within the meaning of the default rulesunder Section409A. For purposes of Section409A, the right to a series of installment payments under this Employment Agreement shall be treated as a right to a series of separate payments."
"3.4. Resignation from All Positions. Upon the termination of the Executives employment with the Company for any reason, the Executive shall resign, as of the date of such termination, from all positions he then holds as an officer, director, employee and member of the board of directors (and any committee thereof) of EWT Holdings I Corporation (Holdings) and its direct and indirect subsidiaries and affiliates (the Company Group). The Executive shall be required to execute such writings as are required to effectuate the foregoing, but the Executive shall be treated for all purposes as having so resigned upon termination of the Executives employment, regardless of when or whether the Executive executes any such documentation."
"U.S.C.  101 et seq. that are owned ab initio by a member of the Company Group, the Executive assigns and agrees to assign all of his right, title and interest in all Developments (including all intellectual property rights therein) to the Company or its nominee without further compensation, including all rights or benefits therefor, including without limitation the right to sue and recover for past and future infringement. The Executive acknowledges that any rights in any Developments constituting a work made for hire under the U.S. Copyright Act, 17 U.S.C  101 et seq. are owned upon creation by the Company as the Executives employer. Whenever requested to do so by the Company, the Executive shall execute any and all applications, assignments or other instruments which the Company shall deem necessary to apply for and obtain trademarks, patents or copyrights of the United States or any foreign country or otherwise protect the interests of the Company Group. These obligations shall continue beyond the end of the Executives employment with the Company with respect to inventions, discoveries, improvements or copyrightable works initiated, conceived or made by the Executive while employed by the Company, and shall be binding upon the Executives employers, assigns, executors, administrators and other legal representatives. In connection with his execution of this Employment Agreement, the Executive has informed the Company in writing of any interest in any inventions or intellectual property rights that he holds as of the date hereof. If the Company is unable for any reason, after reasonable effort, to obtain the Executives signature on any document needed in connection with the actions described in this Section4.6, the Executive hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as the Executives agent and attorney in fact to act for and on the Executives behalf to execute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of this Section4.6 with the same legal force and effect as if executed by the Executive."
"Section6. Non-Disparagement. From and after the Effective Date and following termination of the Executives employment with the Company, the Executive agrees not to make any statement, whether direct or indirect, whether true or false, that is intended to become public, or that should reasonably be expected to become public, and that criticizes, ridicules, disparages or is otherwise derogatory of the Company Group, any of its employees, officers, directors or stockholders."
"8.4. Notices. Unless otherwise provided herein, all notices, requests, demands, claims and other communications provided for under the terms of this Employment Agreement shall be in writing. Any notice, request, demand, claim or other communication hereunder shall be sent by (i)personal delivery (including receipted courier service) or overnight delivery service, with confirmation of receipt (ii)e-mail (with electronic return receipt), (iii)reputable commercial overnight delivery service courier, with confirmation of receipt or (iv)registered or certified mail, return receipt requested, postage prepaid and addressed to the intended recipient as set forth below:"
"SECTION 6. Counterparts. This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart hereof."
"| | ---|---|--- PEABODY ARCLAR MINING, LLC; PEABODY MIDWEST MINING, LLC; 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,"
"This FIFTH AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (as amended, supplemented or otherwise modified from time to time, this Agreement) is entered into as of March25, 2016, by and among P&L RECEIVABLES COMPANY, LLC, a Delaware limited liability company, as seller (the Seller), PEABODY ENERGY CORPORATION, a Delaware corporation and a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code (Peabody), as initial servicer (in such capacity, collectively, together with its successors and permitted assigns in such capacity, the Servicer), PEABODY ARCLAR MINING, LLC, an Indiana limited liability company and a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code, PEABODY MIDWEST MINING, LLC, an Indiana limited liability company and a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code, TWENTYMILE COAL, LLC, a Delaware limited liability company and a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code, PEABODY CABALLO MINING, LLC, a Delaware limited liability company and a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code, COALSALES II, LLC, a Delaware limited liability company and a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code, PEABODY WESTERN COAL COMPANY, a Delaware corporation and a debtor and debtor- in-possession under chapter 11 of the Bankruptcy Code, PEABODY POWDER RIVER MINING, LLC, a Delaware limited liability company and a debtor and debtor-in- possession under chapter 11 of the Bankruptcy Code, PEABODY HOLDING COMPANY, LLC, a Delaware limited liability company and a debtor and debtor-in- possession under chapter 11 of the Bankruptcy Code, PEABODY COALTRADE, LLC, a Delaware limited liability company and a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code, PEABODY COALSALES, LLC, a Delaware limited liability company and a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code, PEABODY GATEWAY NORTH MINING, LLC, a Delaware limited liability company and a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code, PEABODY WILD BOAR MINING, LLC and a debtor and debtor-in- possession under chapter 11 of the Bankruptcy Code, a Delaware limited liability company, PEABODY BEAR RUN MINING, LLC, a Delaware limited liability company and a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code (each a Sub-Servicer and collectively the Sub-Servicers), the various CONDUIT PURCHASERS from time to time party hereto, the various COMMITTED PURCHASERS from time to time party hereto, the various LC PARTICIPANTS from time to time party hereto, the various PURCHASER AGENTS from time to time party hereto, and PNC BANK, NATIONAL ASSOCIATION, a national banking association (PNC), as administrator (in such capacity, together with its successors and assigns in such capacity, the Administrator) and as issuer of Letters of Credit (in such capacity, together with its successors and assigns in such capacity, the LC Bank)."
"(iii) an LC Participation Fee accruing on each day from and after the date hereof until the date on or after the Final Payout Date when the LC Participation Amount of the LC Participant in such Purchaser Group has been reduced to zero ($0), which LC Participation Fee for each such day shall be an amount equal to the product of (i)5.00%, multiplied by (ii)the aggregate LC Participation Amount held by all such LC Participants in such Purchaser Group on such day, multiplied by (iii)1/360; and"
" | (c) | In addition to the foregoing, the Seller agrees to pay, to PNC, as LC Bank, an LC Bank Fee accruing on each day from and after the date hereof until the date on or after the Final Payout Date when the LC Participation Amount has been reduced to zero ($0), which LC Bank Fee for each such day shall be an amount equal to the product of (i)0.15%, multiplied by (ii)the LC Participation Amount on such day, multiplied by (iii) 1/360. ---|---|--- Section1.8 Payments and Computations, Etc."
"Without limiting any other rights that the Administrator, the Purchaser Agents, the Purchasers, the Liquidity Banks, any Program Support Provider or any of their respective Affiliates, employees, officers, directors, agents, counsel, successors, transferees or permitted assigns (each, an Indemnified Party) may have hereunder or under Applicable Law, the Seller hereby agrees to indemnify each Indemnified Party from and against any and all claims, damages, expenses, costs, losses and liabilities (including Attorney Costs) (all of the foregoing being collectively referred to as Indemnified Amounts) arising out of or resulting from this Agreement (whether directly or indirectly), the use of proceeds of Investments or Reinvestments, the ownership of any portion of the Purchased Assets, or any interest therein, or in respect of any Receivable, Related Security or Contract, excluding, however: (a)Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party or its employees, officers, directors, agents, counsel, successors, transferees or permitted assigns or (b)any indemnification which has the effect of recourse for the non-payment of the Receivables to any indemnitor (except as otherwise specifically provided in this Agreement). Without limiting or being limited by the foregoing, and subject to the exclusions set forth in the preceding sentence, the Seller shall pay on demand (which demand shall be accompanied by documentation of the Indemnified Amounts, in reasonable detail) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts relating to or resulting from any of the following:"
"(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),"
"Any provisions of this Agreement which are 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."
"Commitment means, with respect to any Committed Purchaser, LC Participant or LC Bank, as applicable, the maximum aggregate amount which such Purchaser is obligated to pay hereunder on account of all Investments and all drawings under all Letters of Credit, on a combined basis, as set forth on Schedule V hereto or in the Assumption Agreement or other agreement pursuant to which it became a Purchaser, as such amount may be modified in connection with any subsequent assignment pursuant to Section5.3(c) or in connection with a change in the Purchase Limit pursuant to Section1.1(c). As the context so requires, Commitment with respect to any Committed Purchaser, LC Participant or LC Bank, as applicable, shall also be deemed to include such Committed Purchasers, LC Participants or LC Banks obligation hereunder to make Investments, Reinvestments or participation advances to the LC Bank or, in the case of the LC Bank, to issue Letters of Credit, as applicable, on the terms and subject to the conditions set forth herein."
"Dilution Horizon means, for any calendar month, the ratio (expressed as a percentage and rounded to the nearest 1/100th of 1%, with 5/l000th of 1% rounded upward) computed as of the last day of such calendar month of: (a)the aggregate credit sales made by the Originators during the two most recent calendar months to (b)the Net Receivables Pool Balance at the last day of the most recent calendar month."
"| | | | ---|---|---|---|--- AR |  | = |  | the Alternate Rate for such Portion on such day; | | C |  | = |  | such Portion of Capital (i) for purposes of clause (a) above, |  | for such Settlement Period, or (ii)for purposes of clause (b)above, on such day; |  | |  | CPR |  | = |  | the CP Rate for such Portion of Capital for such Settlement Period; | | ED |  | = |  | the actual number of days during such Settlement Period; | | Year |  | = |  | if such Portion of Capital is funded based upon: (i) the Euro-Rate, 360 days, and (ii)the Base Rate, 365 or 366 days, as applicable; and | | TF |  | = |  | the Termination Fee, if any, for the Portion of Capital for such Settlement Period; provided, that no provision of the Agreement shall require the payment or permit the collection of Discount in excess of the maximum permitted by Applicable Law; and provided further, that Discount for any Portion of Capital shall not be considered paid by any distribution to the extent that at any time all or a portion of such distribution is rescinded or must otherwise be returned for any reason."
"Final Order means a final order of the Bankruptcy Court authorizing and approving this Agreement and each of the other Transaction Documents pursuant to Sections 105, 362(d), 363(b)(1), 363(f), 363(m), 364(c), 364(d), 364(e) and 365 of the Bankruptcy Code and Bankruptcy Rule 4001 and providing other relief, in substantially the form of the Interim Order (with only such modifications thereto as are necessary to convert the Interim Order to a final order and such other modifications as are reasonably satisfactory to the Administrator and the Majority Purchaser Agents) providing for, among other things, (i)assumption of the Contribution Agreement and continued sale and contribution of Receivables to the Seller pursuant thereto, (ii)assumption of the Purchase and Sale Agreement and continued sale of Receivables to the Contributor pursuant thereto and (iii)superpriority administrative status for all claims of the Seller and the Purchasers against each member of the Peabody Operating Group under the Transaction Documents, which order shall not have been (a)vacated, reversed, or stayed, or (b)amended or modified, except as otherwise agreed to in writing by the Administrator and each of the Purchaser Agents in their sole discretion."
"Group A Obligor means any Obligor with a short-term rating of at least: (a)A1 by Standard& Poors, or if such Obligor does not have a short-term rating from Standard& Poors, a rating of A+ or better by Standard& Poors on its long-term senior unsecured and uncredit-enhanced debt securities, and (b)P-1 by Moodys, or if such Obligor does not have a short-term rating from Moodys, Al or better by Moodys on its long-term senior unsecured and uncredit-enhanced debt securities, and any Special Group A Obligor."
"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."
"Program Support Agreement means and includes any Liquidity Agreement and any other agreement entered into by any Program Support Provider providing for: (a)the issuance of one or more letters of credit for the account of any Conduit Purchaser, (b)the issuance of one or more surety bonds for which any Conduit Purchaser is obligated to reimburse the applicable Program Support Provider for any drawings thereunder, (c)the sale by any Conduit Purchaser to any Program Support Provider of the Purchased Assets (or portions thereof) and/or (d)the making of loans and/or other extensions of credit to any Conduit Purchaser in connection with such Conduit Purchasers securitization program contemplated in the Agreement, together with any letter of credit, surety bond or other instrument issued thereunder."
"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) 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."
"(a) The Seller is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, and is duly qualified to do business and is in good standing as a foreign limited liability company in every jurisdiction where the nature of its business requires it to be so qualified, except where the failure to be so qualified would not have a Material Adverse Effect."
"(b) The execution, delivery and performance by the Seller of the Agreement and the other Transaction Documents to which it is a party, including its use of the proceeds of Investments and Reinvestments: (i)are within its organizational powers; (ii)have been duly authorized by all necessary organizational action; (iii)do not contravene or result in a default under or conflict with: (A)its certificate of formation or any other organizational document of the Seller, (B)any law, rule or regulation applicable to it, (C)any indenture, loan agreement, mortgage, deed of trust or other material agreement or instrument to which it is a party or by which it is bound, or (D)any order, writ, judgment, award, injunction or decree binding on or affecting it or any of its property; and (iv)do not result in or require the creation of any Adverse Claim upon or with respect to any of its properties. The Agreement and the other Transaction Documents to which it is a party have been duly executed and delivered by the Seller."
"(u) The Seller has not, does not and will not (x)issue any obligations that (A)constitute asset-backed commercial paper, or (B)are securities required to be registered under the Securities Act of 1933 (the 33 Act) or that may be offered for sale under Rule 144A or a similar exemption from registration under the 33 Act or the rules promulgated thereunder, or (y)issue any other debt obligations or equity interests other than the Company Note or debt obligations substantially similar to the obligations of such Borrower under this Agreement that are (A)issued to other banks or asset-backed commercial paper conduits in privately negotiated transactions, and (B)subject to transfer restrictions substantially similar to the transfer restrictions set forth in this Agreement. The Seller further represents and warrants that its assets and liabilities are consolidated with the assets and liabilities of Peabody for purposes of generally accepted accounting principles."
"(ii) as soon as possible and in any event within five days after the occurrence of each Termination Event or Unmatured Termination Event, a statement of a Responsible Officer of the Seller setting forth details of such Termination Event or Unmatured Termination Event and the action that the Seller has taken and proposes to take with respect thereto;"
"(m) Anti-Money Laundering/International Trade Law Compliance. No Covered Entity will become a Sanctioned Person. No Covered Entity, either in its own right or through any third party, will (i)have 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)do business in or with, or derive any of its income from investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law; (iii)engage in any dealings or transactions prohibited by any Anti- Terrorism Law or (iv)use the proceeds of any Investment 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 Anti- Terrorism Law. The funds used to repay Servicers obligations under this Agreement and each of the other Transaction Documents will not be derived from any unlawful activity. Each Covered Entity shall comply with all Anti- Terrorism Laws. Servicer shall promptly notify the Administrator in writing upon the occurrence of a Reportable Compliance Event."
"3\. Separate Existence. Each of the Seller and Peabody hereby acknowledges that the Purchasers, the Purchaser Agents and the Administrator are entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Sellers identity as a legal entity separate from Peabody and its Affiliates. Therefore, from and after the date hereof, each of the Seller and Peabody shall take all steps specifically required by the Agreement or reasonably required by the Administrator to continue the Sellers identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of Peabody and any other Person, and is not a division of Peabody, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, each of the Seller and Peabody shall take such actions as shall be required in order that:"
"(c) Not less than one of the Sellers Directors (the Independent Director) shall be a natural person who (A)for the five-year period prior to his or her appointment as Independent Director has not been, and during the continuation of his or her service as Independent Director is not: (i)an employee, director, stockholder, member, manager, partner or officer of the Seller, Peabody or any of their respective Affiliates (other than his or her service as an Independent Director of the Seller); (ii)a customer or supplier of the Seller, Peabody or any of their respective Affiliates (other than his or her service as an Independent Director of Seller); or (iii)any member of the immediate family of a person described in clause (i)or (ii)above, and (B)has, (i)prior experience as an Independent Director for a corporation or limited liability company whose charter documents required the unanimous consent of all independent directors thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (ii)at least three years of employment experience"
"(r) any member of the Peabody Group shall seek or support (in any such case by way of any motion or other pleading filed with the Bankruptcy Court) any other Persons opposition of, any motion made in the Bankruptcy Court by the Administrator or any other Purchaser seeking confirmation of the validity, priority or extent of the liens or other interests of the Administrator granted pursuant to the Transaction Documents;"
" | (b) | In addition, in the event the Seller fails to reimburse the LC Bank and each applicable LC Participant for the full amount of any drawing under any Letter of Credit on the applicable Drawing Date (out of its own funds available therefor, or otherwise, at such time), pursuant to Section1.16, then the Seller shall, automatically (and without the requirement of any further action on the part of any Person hereunder), be deemed to have requested a new Investment from the Conduit Purchasers or Committed Purchasers, as applicable, on such date, pursuant to the terms hereof, in an amount equal to the amount of such Reimbursement Obligation at such time. Subject to the limitations on funding set forth in Section1.1(a) above (and otherwise herein), the Conduit Purchasers or Committed Purchasers, as applicable, shall fund such deemed Investment request and deliver the proceeds thereof directly to the Administrator to be immediately distributed (ratably) to the LC Bank and the applicable LC Participants in satisfaction of the Sellers Reimbursement Obligation pursuant to Section1.16 below, to the extent of the amounts permitted to be funded by the Conduit Purchasers or Committed Purchasers, as applicable, at such time, hereunder. Neither Peabody nor any of its Subsidiaries (including the Originators), other than the Seller, shall be liable for the Reimbursement Obligation. ---|---|--- "
" | (c) | Obligations Not Assumed. The foregoing sale, assignment and transfer does not constitute and is not intended to result in the creation, or an assumption by the Administrator, any Purchaser Agent or any Purchaser, of any obligation of the Seller, any Originator or any other Person under or in connection with the Receivables or any other Related Security, all of which shall remain the obligations and liabilities of the Seller, the Originator and/or such other Person, as applicable. ---|---|--- Section1.4 Terms and Conditions for Sale, Assignment and Transfer. Subject to the terms and conditions hereof, including Exhibit II, in consideration for the sale, assignment and transfer of the Purchased Assets by the Seller to the Administrator (on behalf of the Purchasers) hereunder:"
" | (b) | The Servicer shall, on each day on which Collections of Pool Receivables are received (or deemed received) by the Seller or the Servicer, including pursuant to Section1.6(g): ---|---|--- (i) set aside 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, out of such Collections, first, an amount equal to the Aggregate Discount accrued through such day for each Portion of Capital and not previously set aside, second, an amount equal to the Fees accrued and unpaid through such day, and third, to the extent funds are available therefor, an amount equal to the Servicing Fee accrued through such day and not previously set aside,"
" | (c) | In addition to the foregoing, the Seller agrees to pay, to PNC, as LC Bank, an LC Bank Fee accruing on each day from and after the date hereof until the date on or after the Final Payout Date when the LC Participation Amount has been reduced to zero ($0), which LC Bank Fee for each such day shall be an amount equal to the product of (i)0.15%, multiplied by (ii)the LC Participation Amount on such day, multiplied by (iii) 1/360. ---|---|--- "
" | (b) | The Seller or the Servicer, as the case may be, shall, to the extent permitted by law, pay interest on any amount not paid or deposited by the Seller or the Servicer, as the case may be, when due hereunder, at an interest rate equal to 2.0%per annum above the Base Rate, payable on demand. ---|---|--- "
" | (c) | All computations of interest under clause (b)above and all computations of Discount, fees and other amounts hereunder shall be made on the basis of a year of 360 (or 365 or 366, as applicable, with respect to Discount or other amounts calculated by reference to the Base Rate) days for the actual number of days elapsed. Whenever any payment or deposit to be made hereunder shall be due on a day other than a Business Day, such payment or deposit shall be made on the next Business Day and such extension of time shall be included in the computation of such payment or deposit. ---|---|--- "
" | (a) | If after the Closing Date the Administrator, the LC Bank, any Purchaser Agent, any Purchaser, any Liquidity Bank, any other Program Support Provider or any of their respective Affiliates (each an Affected Person) reasonably determines that any Change in Law affects or would affect the amount of capital required or expected to be maintained by such Affected Person, and such Affected Person determines that the amount of such capital is increased by or based upon the existence of any commitment to make Investments in (or otherwise to maintain the Investments in) Pool Receivables or issue any Letter of Credit related to this Agreement or any related liquidity facility, credit enhancement facility and other commitments of the same type, then, upon demand by such Affected Person or its related Purchaser Agent (with a copy to the Administrator), the Seller shall promptly pay to the Administrator, for the account of such Affected Person, from time to time as specified by such Affected Person or its related Purchaser Agent, additional amounts sufficient to compensate such Affected Person in the light of such circumstances, to the extent that such Affected Person reasonably determines such increase in capital to be allocable to the existence of any of such commitments. ---|---|--- "
" | (c) | Each LC Participant shall upon any notice pursuant to clause (b)above make available to the LC Bank an amount in immediately available funds equal to its Pro Rata Share of the amount of the drawing, whereupon the LC Participants shall each be deemed to have made an Investment in that amount. If any LC Participant so notified fails to make available to the LC Bank the amount of such LC Participants Pro Rata Share of such amount by no later than 2:00 p.m., New York time on the Drawing Date, then interest shall accrue on such LC Participants obligation to make such payment, from the Drawing Date to the date on which such LC Participant makes such payment (i)at a rate per annum equal to the Federal Funds Rate during the first three days following the Drawing Date and (ii)at a rate per annum equal to the rate applicable to Capital on and after the fourth day following the Drawing Date. The LC Bank will promptly give notice of the occurrence of the Drawing Date, but failure of the LC Bank to give any such notice on the Drawing Date or in sufficient time to enable any LC Participant to effect such payment on such date shall not relieve such LC Participant from its obligation under this clause (c), provided that such LC Participant shall not be obligated to pay interest as provided in subclauses (i)and (ii)above until and commencing from the date of receipt of notice from the LC Bank or the Administrator of a drawing. Each LC Participants Commitment shall continue until the last to occur of any of the following events: (A)the LC Bank ceases to be obligated to issue or cause to be issued Letters of Credit hereunder; (B)no Letter of Credit issued hereunder remains outstanding and uncancelled or (C)all Persons (other than the Seller) have been fully reimbursed for all payments made under or relating to Letters of Credit. ---|---|--- "
" | (a) | Upon (and only upon) receipt by the LC Bank for its account of immediately available funds from the Seller (i)in reimbursement of any payment made by the LC Bank under a Letter of Credit with respect to which any LC Participant has made a participation advance to the LC Bank, or (ii)in payment of Discount on the Investments made or deemed to have been made in connection with any such draw, the LC Bank will pay to each LC Participant, ratably (based on the outstanding drawn amounts funded by each such LC Participant in respect of such Letter of Credit), in the same funds as those received by the LC Bank; it being understood, that the LC Bank shall retain a ratable amount of such funds that were not the subject of any payment in respect of such Letter of Credit by any LC Participant. ---|---|--- "
"The Seller agrees to be bound by and shall cause the Servicer or any Sub- Servicer (or such the Servicers or any Sub-Servicers, as applicable, designee, which designee shall be a Subsidiary of such Sub-Servicer or the Servicer, as applicable) named as the Applicant or Account Party of any Letter of Credit to agree to be bound by the terms of the Letter of Credit Application and by the LC Banks interpretations of any Letter of Credit issued for the Seller and by the LC Banks written regulations and customary practices relating to letters of credit, though the LC Banks interpretation of such regulations and practices may be different from the Sellers own. In the event of a conflict between the Letter of Credit Application and this Agreement, this Agreement shall govern. It is understood and agreed that, except in the case of gross negligence or willful misconduct by the LC Bank, the LC Bank shall not be liable for any error, negligence and/or mistakes, whether of omission or commission, in following the Sellers instructions or those contained in the Letters of Credit or any modifications, amendments or supplements thereto."
"(v) the lack of power or authority of any signer of, or lack of validity, sufficiency, accuracy, enforceability or genuineness of, any draft, demand, instrument, certificate or other document presented under any Letter of Credit, or any such draft, demand, instrument, certificate or other document proving to be forged, fraudulent, invalid, defective or insufficient in any respect or any statement therein being untrue or inaccurate in any respect, even if the Administrator or the LC Bank has been notified thereof;"
"Without limiting the generality of the foregoing, the Administrator, the LC Bank, the LC Participants, the Purchaser Agents, the Purchasers and each of their respective Affiliates (i)may rely on any written communication believed in good faith by such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit; (ii)may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii)may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC Bank or its Affiliates; (iv)may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v)may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi)may settle or adjust any claim or demand made on the Administrator, the LC Bank, the LC Participants, the Purchaser Agents, the Purchasers or their respective Affiliates, in any way related to any order issued at the applicants request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an Order) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit."
"If any of the Termination Events set forth in Exhibit V shall occur, the Administrator may (with the consent of the Majority ~~Purchaser Agents) and~~ Purchasers) or shall (at the direction of the Majority ~~Purchaser Agents~~ Purchasers), by notice to the Seller, declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred); provided, that ~~the Facility Termination Date shall~~ automatically ~~occur~~ upon the occurrence of any event other than the Chapter 11 Cases (without any requirement for the passage"
"(v) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Receivables in, or purporting to be in, the Receivables Pool and the other Pool Assets, whether at the time of any Investment or Reinvestment or at any subsequent time,"
"Without limiting any other rights that any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts arising out of or resulting from (whether directly or indirectly): (a)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 such Indemnified Party by, or on behalf of, the Servicer 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), (b)the failure of any representation, warranty or statement made or deemed made by the Servicer (or any of its officers) under or in connection with this Agreement to have been true and correct as of the date made or deemed made in all respects when made, (c)the failure by the Servicer to comply with any Applicable Law with respect to any Pool Receivable or the related Contract, (d)any dispute, claim, offset or defense of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool resulting from or related to the collection activities with respect to such Receivable, or (e)any failure of the Servicer to perform its duties or obligations in accordance with the provisions hereof."
" | (a) | The servicing, administering and collection of the Pool Receivables shall be conducted by the Person so designated from time to time as the Servicer in accordance with this Section. Until the Administrator gives notice to Peabody (in accordance with this Section) of the designation of a new Servicer, Peabody is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. Upon the occurrence of a Termination Event, the Administrator may designate as Servicer any Person (including itself) to succeed Peabody or any successor Servicer, on the condition in each case that any such Person so designated shall agree to perform the duties and obligations of the Servicer pursuant to the terms hereof. ---|---|--- "
"The Administrator shall, on each Settlement Date (if such date occurs on a Termination Day or on a date that any Capital is then outstanding), remove any available amounts then on deposit in the Lock-Box Accounts and the LC Collateral Account and deposit such amounts into each Purchaser Agents account in accordance with the priorities set forth in Section1.6(d), to the extent that any amounts are then due and owing under clauses first through second of Section1.6(d)(ii) after giving effect to the distribution, if any, by the Servicer on such date in accordance with Section1.6(d)."
" | (a) | Anything herein to the contrary notwithstanding, the Seller shall: (i)perform all of its obligations, if any, under the Contracts related to the Pool Receivables to the same extent as if such Pool Receivables had not been transferred hereunder, and the exercise by the Administrator, any Purchaser Agent or any Purchaser of their respective rights hereunder shall not relieve the Seller from such obligations, and (ii)pay when due any taxes, including any sales taxes payable in connection with the Pool Receivables and their creation and satisfaction. Neither the Administrator nor any Purchaser Agent nor any Purchaser shall have any obligation or liability with respect to any Pool Asset, nor shall any of them be obligated to perform any of the obligations of the Seller, Peabody or any Originator thereunder. ---|---|--- "
" | (c) | Exculpatory Provisions. None of the Purchaser Agents, the Administrator or any of their respective directors, officers, agents or employees shall be liable for any action taken or omitted (i)with the consent or at the direction of the Majority Purchaser Agents (or in the case of any Purchaser Agent, the Purchasers within its Purchaser Group that have a majority of the aggregate Commitment of such Purchaser Group) or (ii)in the absence of such Persons gross negligence or willful misconduct. The Administrator shall not be responsible to any Purchaser, Purchaser Agent or other Person for (i)any recitals, representations, warranties or other statements made by the Seller, the Servicer, any Sub-Servicer, any Originator or any of their Affiliates, (ii)the value, validity, effectiveness, genuineness, enforceability or sufficiency of any Transaction Document, (iii)any failure of the Seller, the Servicer, any Sub-Servicer, any Originator or any of their Affiliates to perform any obligation hereunder or under the other Transaction Documents to which it is a party (or under any Contract), or (iv)the satisfaction of any condition specified in Exhibit II. The Administrator shall not have any obligation to any Purchaser or Purchaser Agent to ascertain or inquire about the observance or performance of any agreement contained in any Transaction Document or to inspect the properties, books or records of the Seller, the Servicer, any Sub-Servicer, any Originator or any of their respective Affiliates. ---|---|--- "
"(iv) Unless otherwise advised in writing by a Purchaser Agent or by any Purchaser on whose behalf such Purchaser Agent is purportedly acting, each party to this Agreement may assume that (i)such Purchaser Agent is acting for the benefit of each of the Purchasers in respect of which such Purchaser Agent is identified as being the Purchaser Agent in the definition of Purchaser Agent hereto, as well as for the benefit of each assignee or other transferee from any such Person, and (ii)each action taken by such Purchaser Agent has been duly authorized and approved by all necessary action on the part of the Purchasers on whose behalf it is purportedly acting. Each Purchaser Agent and its Purchaser(s) shall agree amongst themselves as to the circumstances and procedures for removal, resignation and replacement of such Purchaser Agent. Each Purchaser shall promptly notify the Seller, the Servicer and the Administrator in writing of any removal, resignation or replacement of such Purchasers Purchaser Agent."
" | Purchaser Agents or any other Purchaser and based on such documents and information as it has deemed appropriate, it has made and will continue to make its own appraisal of and investigation into the business, operations, property, prospects, financial and other conditions and creditworthiness of the Seller, the Servicer, the Sub-Servicers, the Originators and the Receivables and its own decision to enter into this Agreement and to take, or omit, action under any Transaction Document. Except for items specifically required to be delivered hereunder, the Administrator shall not have any duty or responsibility to provide any Purchaser Agent or any Purchaser with any information concerning the Seller, the Servicer, the Sub-Servicers, the Originators or any of their Affiliates that comes into the possession of the Administrator or any of its officers, directors, employees, agents, attorneys- in-fact or Affiliates. ---|--- "
" | Administrator and the LC Bank, ratably according to its Pro Rata Share, promptly upon demand, for any out of pocket expenses (including reasonable counsel fees) incurred by the Administrator or the LC Bank in connection with the administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of, its rights and responsibilities under this Agreement. ---|--- "
" | of any other party to this Agreement or to the other Transaction Documents; provided that no such pledge, participation or assignment shall release such Purchaser from any of its obligations hereunder or substitute any such pledge, participant or assignee for such Purchaser as a party hereto. ---|--- Section5.4 Costs, Expenses and Taxes."
"that payment or indemnify such Recipient for such liability, as applicable (increased in either case by Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section), within 10 days after demand therefor, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant tax authority. A certificate as to the amount of such payment or liability delivered to the Seller by a Purchaser or Purchaser Agent (with a copy to the Administrator), or by the Administrator on its own behalf or on behalf of a Purchaser or Purchaser Agent, shall be conclusive absent manifest error. If the Seller fails to pay any Taxes when due to the appropriate taxing authority or fails to remit to the Administrator the required receipts or other required documentary evidence, the Seller shall indemnify the Administrator and/or any other Affected Person, as applicable, for any Indemnified Taxes that may become payable by such party as a result of any such failure."
"(A) any Recipient that is a United States Person within the meaning of Section7701(a)(30) of the Internal Revenue Code shall deliver to the Servicer and the Administrator on or prior to the date on which such Purchaser becomes a Purchaser under this Agreement (and from time to time thereafter upon the reasonable request of the Servicer or the Administrator and at the time or times required by Applicable Law), executed copies of IRS Form W-9 certifying that such Recipient is exempt from U.S. federal backup withholding tax;"
"(B) any Recipient that is not a United States Person within the meaning of Section7701(a)(30) of the Internal Revenue Code shall, to the extent it is legally entitled to do so, deliver to the Servicer and the Administrator (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Recipient becomes a party to this Agreement (and from time to time thereafter upon the reasonable request of the Seller or the Administrator and at the time or times required by Applicable Law),"
"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, 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;"
"(4) to the extent a Recipient is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, as applicable, certifications as to the matters in Section5.4(b)(ii)(B)(3) on its own behalf and on behalf of its direct or indirect partners claiming the portfolio interest exemption, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable;"
"(iii) The Seller shall pay on demand any and all stamp and other taxes and fees payable in connection with the execution, delivery, filing and recording of this Agreement or the other documents or agreements to be delivered hereunder, and shall save each Indemnified Party harmless from and against any liabilities with respect to or resulting from any delay in paying or omission to pay such taxes and fees."
"Each Purchaser agrees that if it receives any recovery, through set-off, judicial action or otherwise, on any amount payable or recoverable hereunder in a greater proportion than should have been received hereunder or otherwise inconsistent with the provisions hereof (including, without limitation, Section1.8(a) hereof), then the recipient of such recovery shall purchase for cash an interest in amounts owing to the other Purchasers (as return of Capital or otherwise), without representation or warranty except for the representation and warranty that such interest is being sold by each such other Purchaser free and clear of any Adverse Claim created or granted by such other Purchaser, in the amount necessary to create proportional participation by the Purchaser in such recovery. If all or any portion of such amount is thereafter recovered from the recipient, such purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest."
" --- PEABODYARCLARMINING,LLC; PEABODYMIDWESTMINING,LLC; TWENTYMILE COAL, LLC; PEABODYCABALLOMINING,LLC; COALSALES II, LLC; PEABODYPOWDERRIVERMINING,LLC; PEABODYHOLDINGCOMPANY,LLC; PEABODYBEARRUNMINING,LLC; PEABODYWILDBOARMINING,LLC; PEABODYGATEWAYNORTHMINING,LLC; PEABODY COALTRADE, LLC; and PEABODY COALSALES, LLC, each, a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code, as a Sub-Servicer By:  Name: James A. Tichenor Title: Vice President& Treasurer of each of the foregoing Sub-Servicers PEABODY WESTERN COAL COMPANY, a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code, as a Sub-Servicer By:  Name: Douglas D. Loucks Title: Treasurer "
"As used in the Agreement (including its Exhibits, Schedules and Annexes), the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined). Unless otherwise indicated, all Section, Annex, Exhibit and Schedule references in this Exhibit are to Sections of and Annexes, Exhibits and Schedules to the Agreement."
"CP Rate means, for any Conduit Purchaser and for any Settlement Period for any Portion of Capital, (a)the per annum rate equivalent to the weighted average cost (as determined by the applicable Purchaser Agent and which shall include commissions of placement agents and dealers, incremental carrying costs incurred with respect to Notes of such Person maturing on dates other than those on which corresponding funds are received by such Conduit Purchaser, other borrowings by such Conduit Purchaser (other than under any Program Support Agreement) and any other costs associated with the issuance of Notes) of or related to the issuance of Notes that are allocated, in whole or in part, by the applicable Purchaser Agent to fund or maintain such Portion of Capital (and which may be also allocated in part to the funding of other assets of such Conduit Purchaser); provided, that if any component of such rate is a discount rate, in calculating the CP Rate for such Portion of Capital for such Settlement Period, the applicable Purchaser Agent shall for such component use the rate resulting from converting such discount rate to an interest bearing equivalent rate per annum; provided, further, that notwithstanding anything in the Agreement or"
"Federal Funds Rate means, for any day, the per annum rate set forth in the weekly statistical release designated as H.15(519), or any successor publication, published by the Federal Reserve Board (including any such successor, H.15(519)) for such day opposite the caption Federal Funds (Effective). If on any relevant day such rate is not yet published in H. 15(519), the rate for such day will be the rate set forth in the daily statistical release designated as the Composite 3:30 p.m. Quotations for U.S. Government Securities, or any successor publication, published by the Federal Reserve Bank of New York (including any such successor, the"
"Group A Obligor means any Obligor with a short-term rating of at least: (a)A1 by Standard& Poors, or if such Obligor does not have a short-term rating from Standard& Poors, a rating of A+ or better by Standard& Poors on its long-term senior unsecured and uncredit-enhanced debt securities, and (b)P-1 by Moodys, or if such Obligor does not have a short-term rating from Moodys, Al or better by Moodys on its long-term senior unsecured and uncredit-enhanced debt securities, and any Special Group A Obligor."
"Group B Obligor means an Obligor, not a Group A Obligor, with a short-term rating of at least: (a)A-2 by Standard& Poors, or if such Obligor does not have a short-term rating from Standard& Poors, a rating of BBB+ to A by Standard& Poors on its long-term senior unsecured and uncredit-enhanced debt securities, and (b)P-2 by Moodys, or if such Obligor does not have a short-term rating from Moodys, Baal to A2 by Moodys on its long-term senior unsecured and uncredit-enhanced debt securities, and any Special Group B 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%)."
"(a) in the case of each Investment and the issuance of any Letters of Credit, the Servicer shall have delivered to the Administrator and each Purchaser Agent on or before such Investment or issuance, as the case may be, in form and substance satisfactory to the Administrator and each Purchaser Agent, a completed pro forma Information Package to reflect the level of Aggregate Capital, the LC Participation Amount and related reserves and the calculation of the Purchased Asset Coverage Percentage after such subsequent Investment or issuance, as the case may be, and a completed Investment Notice in the form of Annex B; and"
"behalf of the Purchasers) shall acquire a valid and enforceable perfected ownership or security interest in each Pool Receivable then existing or thereafter arising and in the Related Security, Collections and other proceeds with respect thereto, free and clear of any Adverse Claim. The Agreement creates a valid and continuing ownership or security interest (as defined in the applicable UCC) in favor of the Administrator in the Pool Assets and the Lock-Box Accounts (and related lock-boxes), which ownership or security interest is prior to all other Adverse Claims, and is enforceable as such against creditors of and purchasers from the Seller. The Pool Assets constitute accounts, general intangibles or tangible chattel paper within the meaning of the applicable UCC. Each Lock-Box Account constitutes a deposit account within the meaning of the applicable UCC. The Seller has caused or will have caused, within ten (10)days, the filing of all appropriate UCC financing statements in the proper filing offices in the appropriate jurisdictions under Applicable Laws in order to perfect the ownership or security interest in the Pool Assets and the Lock-Box Accounts (and related lock-boxes) granted to the Administrator (on behalf of the Purchasers) hereunder. Other than the ownership or security interest granted to the Administrator (on behalf of the Purchasers) pursuant to this Agreement, Seller has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Pool Assets or the Lock-Box Accounts (and related lock-boxes). Seller has not authorized the filing of and is not aware of any UCC financing statements against Seller that include a description of collateral covering the Pool Assets, other than any UCC financing statement relating to the security interest granted to the Administrator (on behalf of the Purchasers) hereunder or that has been terminated. Seller is not aware of any judgment, ERISA or tax lien filings against the Seller. With respect to any Pool Receivable that constitutes tangible chattel paper, the Servicer is in possession of the original copies of the tangible chattel paper that constitutes or evidences such Pool Receivables, and the Seller has filed the financing statements described in this section above, each of which will contain a statement that A purchase of or a grant of a security interest in any property described in this financing statement will violate the rights of the Administrator. The Pool Receivables to the extent they are evidenced by tangible chattel paper do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Seller or the Administrator (on behalf of the Purchasers)."
"(f) Except (i)as disclosed in the most recent audited financial statements of Peabody furnished to the Administrator and (ii)the Chapter 11 Cases, there is no pending or, to its best knowledge, threatened action or proceeding affecting it or any of its Subsidiaries before any Governmental Authority or arbitrator that is reasonably likely to have a Material Adverse Effect."
"(p) 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."
"(a) Compliance with Laws, Etc. The Seller shall comply in all material respects with all Applicable Laws and preserve and maintain its organizational existence, rights, franchises, qualifications and privileges, except to the extent that the failure so to comply with such laws, rules, regulations and orders or the failure so to preserve and maintain such rights, franchises, qualifications and privileges would not have a Material Adverse Effect."
"(m) Certain Agreements. Without the prior written consent of the Administrator and the Majority Purchaser Agents, the Seller will not (and will not permit the Originators to) amend, modify, waive, revoke or terminate any Transaction Document to which it is a party or any provision of Sellers certificate of formation or other organizational document of the Seller."
"(xii) ~~(xi)~~ the occurrence of a default or any event of default under (x)any Eligible DIP Facility or (y)any other financing arrangement evidencing $50,000,000 or more of indebtedness pursuant to which Peabody is a debtor or an obligor; provided that this clause (xii)shall not relate to any indebtedness of any Filing Debtor that was incurred prior to the Filing Date (or, if later, the date on which such Person became a Filing Debtor) for which payment is not required after the Filing Date; and"
"(f) Any employee, consultant or agent of the Seller will be compensated from the Sellers funds for services provided to the Seller. The Seller will not engage any agents other than its attorneys, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool, which servicer will be fully compensated for its services by payment of the Servicing Fee, and a manager, which manager will be fully compensated from the Sellers funds;"
"(g) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service the Receivables Pool. The Seller will pay the Servicer the Servicing Fee pursuant hereto. The Seller will not incur any material indirect or overhead expenses for items shared with Peabody (or any other Affiliate thereof) that are not reflected in the Servicing Fee. To the extent, if any, that the Seller (or any Affiliate thereof) shares items of expenses not reflected in the Servicing Fee or the managers fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered; it being understood that Peabody shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including legal, agency and other fees;"
"relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property ~~and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Seller, Peabody or any Originator~~ or the Seller shall take any corporate or organizational action to authorize any of the actions set forth above in this paragraph;"
"(j) (i) the occurrence of any ~~Event of Default under and as defined in the Credit Agreement, provided that if the Credit Agreement is terminated but not replaced, the covenants in effect in the Credit Agreement immediately prior to termination of the Credit Agreement shall be deemed to be effective for the purposes of the Agreement~~ event of default under any Eligible DIP Facility; (ii)any other event shall occur or condition shall exist under ~~the Credit Agreement~~ any Eligible DIP Facility and shall continue after the applicable grace period, if any, specified in such ~~Credit Agreement~~ Eligible DIP Facility if, in either case: (a)the effect of such non-payment, event or condition is to give the applicable debtholders the right (whether acted upon or not) to accelerate the maturity of ~~such~~ Debt under an Eligible DIP Facility, or (b)any ~~such~~ Debt under an Eligible DIP Facility shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Debt shall be required to be made, in each case before the stated maturity thereof; or (iii)in the event that ~~the Credit Agreement~~ any Eligible DIP Facility shall have terminated, and there exists any other financing arrangement evidencing $25,000,000 or more of indebtedness pursuant to which Peabody is a debtor or an obligor (an Other Material Financing Agreement); either (A)the occurrence of any event of default under such Other Material Financing Agreement, or (B)any other event shall occur or condition shall exist under and shall continue after the applicable grace period, if any, specified in such Other Material Financing Agreement, if, in either case of (A)or (B): (i)the effect of such non-payment, event or condition is to give the applicable debtholders the right (whether acted upon or not) to accelerate the maturity of such Other Material Financing Agreement, or (b)any such Other Material Financing Agreement shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Debt shall be required to be made, in each case before the stated maturity thereof; provided, for the avoidance of doubt, that this clause (j)shall not relate to any Debt of any Filing Debtor that was incurred prior to the Filing Date (or, if later, the date on which such Person became a Filing Debtor) for which payment is not required after the Filing Date;"
"(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;"
"(r) any member of the Peabody Group shall seek or support (in any such case by way of any motion or other pleading filed with the Bankruptcy Court) any other Persons opposition of, any motion made in the Bankruptcy Court by the Administrator or any other Purchaser seeking confirmation of the validity, priority or extent of the liens or other interests of the Administrator granted pursuant to the Transaction Documents;"
(dd) any Person that has an Adverse Claim on the membership interests of the Seller shall take any action that would constitute a breach of any provision set forth in the form of No Proceedings Letter attached hereto as Annex I (if such Person is or were then a party to such a No Proceedings Letter (without regard to whether such Person actually is then a party to such a No Proceedings Letter)).
"Common Stock Equivalents means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock."
"(c)Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, the Board of Directors or the Companys stockholders in connection herewith or therewith other than in connection with the Required Approvals. This Agreement and each other Transaction Document to which it is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against the Company 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."
"(g)SEC Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the one year preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the SEC Reports) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (GAAP), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments."
"(h)Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date hereof: (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Companys financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company stock option plans. The Company does not have pending before the Commission any request for confidential treatment of information. Except for the issuance of the Shares contemplated by this Agreement or as set forth on Schedule 3.1(h), no event, liability, fact, circumstance, occurrence or development has occurred or exists, or is reasonably expected to occur or exist, with respect to the Company or its Subsidiaries or their respective businesses, properties, operations, assets or financial condition, that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least 1 Trading Day prior to the date that this representation is made."
"(r)Private Placement. Assuming the accuracy of the Purchasers representations and warranties set forth in Section 3.2, no registration under the Securities Act is required for the offer and sale of the Shares by the Company to the Purchasers as contemplated hereby. The issuance and sale of the Shares hereunder does not contravene the rules and regulations of the Trading Market."
"(z)Foreign Corrupt Practices. Neither the Company nor any Subsidiary, to the knowledge of the Company or any Subsidiary, any agent or other person acting on behalf of the Company or any Subsidiary, has: (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf of which the Company is aware) which is in violation of law or (iv) violated in any material respect any provision of FCPA."
"(bb)No Disagreements with Accountants and Lawyers.There are no disagreements of any kind presently existing, or reasonably anticipated by the Company to arise, between the Company and the accountants and lawyers formerly or presently employed by the Company and the Company is current with respect to any fees owed to its accountants and lawyers which could affect the Companys ability to perform any of its obligations under any of the Transaction Documents. "
"(ee)Stock Option Plans. Each stock option granted by the Company under the Companys stock option plan was granted in accordance with the terms of the Companys stock option plan. No stock option granted under the Companys stock option plan has been backdated. The Company has not knowingly granted, and there is no and has been no Company policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results or prospects."
"(hh)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 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."
"(e)General Solicitation. Such Purchaser is not, to such Purchasers knowledge, purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement."
"The Company acknowledges and agrees that the representations contained in 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 transaction contemplated hereby."
"(a)The Securities may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser 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 Shares 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 and obligations of a Purchaser under this Agreement."
"4.4Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, 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 the Company believes constitutes material non-public information, unless prior thereto such Purchaser shall have entered into a written agreement with the Company regarding the confidentiality and use of such information. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company."
"4.8Listing of Common Stock. The Company hereby agrees to use best efforts to maintain the listing or quotation of the Common Stock on the Trading Market on which it is currently listed, and concurrently with the Closing, the Company shall apply to list or quote all of the Shares on such Trading Market and promptly secure the listing of all of the Shares on such Trading Market. The Company further agrees, if the Company applies to have the Common Stock traded on any other Trading Market, it will then include in such application all of the Shares, and will take such other action as is necessary to cause all of the Shares to be listed or quoted on such other Trading Market as promptly as possible. The Company will then take all action reasonably necessary to continue the listing or quotation and trading of its Common Stock on a Trading Market and will comply in all respects with the Companys reporting, filing and other obligations under the bylaws or rules of the Trading Market. The Company agrees to maintain the eligibility of the Common Stock for electronic transfer through the Depository Trust Company or another established clearing corporation, including, without limitation, by timely payment of fees to the Depository Trust Company or such other established clearing corporation in connection with such electronic transfer."
"4.10Form D; Blue Sky Filings. The Company agrees to timely file a Form D with respect to the Shares as required under Regulation D and to provide a copy thereof, promptly upon request of any Purchaser. 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 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."
"4.11Capital Changes. Until the one year anniversary of the Closing Date, the Company shall not undertake a reverse or forward stock split or reclassification of the Common Stock without the prior written consent of the Purchasers holding a majority in interest of the Shares; provided, however, that the Company may undertake a reverse split of the Common Stock at any time in order to satisfy the minimum market price requirement of a national securities market or exchange on which it intends to pursue listing."
"5.1Fees 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 (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any exercise notice delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Purchasers."
"5.4Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company and the Purchasers holding at least a majority in interest of the Securities then outstanding or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right."
"Additional Filing Date means the later of (i)the date sixty (60)days after the date substantially all of the Registrable Securities registered under the immediately preceding Registration Statement are sold and (ii)the date six (6)months from the Effective Date of the immediately preceding Registration Statement, or, if such date is not a Business Day, the next date that is a Business Day."
"Additional Required Effectiveness Date means the date which is the earliest of (i)if the Registration Statement does not become subject to review by the SEC, (a)sixty (60)days after the Additional Filing Date or (b)five (5) Trading Days after the Company receives notification from the SEC that the Additional Registration Statement will not become subject to review and the Company fails to request to accelerate the effectiveness of the Registration Statement, or (ii)if the Additional Registration Statement becomes subject to review by the SEC, ninety (90)days after the Additional Filing Date, or, if such date is not a Business Day, the next date that is a Business Day."
"Closing Price means, for any date, the closing price per share of the Common Stock for such date (or, if such date is not a Trading Day, the nearest preceding date that is a Trading Day) on the primary Eligible Market or exchange or quotation system on which the Common Stock is then listed or quoted."
"Material Adverse Effect means (i)a material adverse effect on the condition (financial or otherwise), results of operations, assets, business or prospects of the Company and the Subsidiaries, taken as a whole, or (ii)a material and adverse impairment of the Companys ability to perform its obligations under any of the Transaction Documents, provided that none of the following alone shall be deemed, in and of itself, to constitute a Material Adverse Effect: (i)a change in the market price or trading volume of the Common Stock or (ii)changes in general economic conditions or changes affecting the industry in which the Company operates general (as opposed to Company-specific changes) so long as such changes do not have a disproportionate effect on the Company and its Subsidiaries, taken as a whole."
"(i) one or more stock certificates (or copies thereof provided by the Transfer Agent), free and clear of all restrictive and other legends (except as expressly provided in Section4.1(b) hereof), evidencing such number of Common Shares set forth opposite such Investors name on ExhibitA hereto under the heading Common Shares, registered in the name of such Investor (or its designee);"
"(b) At the Closing, the Company shall deliver or cause to be delivered to East West Bank a request to release the aggregate purchase price set forth on ExhibitA pursuant to the terms and conditions of that certain Escrow Agreement, dated as of April14, 2016, by and between the Company, the Investors, and East West Bank."
"(c) Authorization; Enforcement of Transaction Documents and Commitment Letters. The Company has the requisite corporate authority to enter into and to consummate the transactions contemplated by each of the Transaction Documents to which it is a party and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of each of the Transaction Documents to which it is a party by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company and no further consent or action is required by the Company, its Board of Directors or its stockholders other than obtaining Stockholder Approval. Each of the Transaction Documents to which it is a party has been (or upon delivery will be) duly executed by the Company and is, or when delivered in accordance with the terms hereof, will constitute, the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as may be limited by Enforceability Exceptions. The Company has the requisite corporate authority to enter into and to consummate the transactions contemplated by the Commitment Letters and to carry out its obligations thereunder. The execution and delivery of the Commitment Letters by the Company and the consummation of the transactions contemplated by the Company have been duly authorized by all necessary corporate action on the part of the Company and no further consent or action is required by the Company, its Board of Directors or its stockholders. The Commitment Letters will be duly executed by the Company and is, or when delivered in accordance with the terms hereof, will constitute, the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as may be limited by Enforceability Exceptions."
"(g) SEC Reports. The Company has filed all reports required to be filed by it under the Exchange Act, including pursuant to Section13(a) or 15(d) thereof, for the twenty-four (24)months preceding the date hereof on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension and has filed all reports required to be filed by it under the Exchange Act, including pursuant to Section13(a) or 15(d) thereof, for the twenty-four months preceding the date hereof. Such reports required to be filed by the Company under the Exchange Act, including pursuant to Section13(a) or 15(d) thereof, together with any materials filed or furnished by the Company under the Exchange Act, whether or not any such reports were required being collectively referred to herein as the SEC Reports and, together with this Agreement and the Schedules to this Agreement, the Disclosure Materials. As of their respective dates, the SEC Reports filed by the Company complied in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder, and none of the SEC Reports, when filed by the Company, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance in all material respects with United States generally accepted accounting principles applied on a consistent basis during the periods involved (GAAP), except as may be otherwise specified in such financial statements, the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP or may be condensed or summary statements, and fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments. All material agreements to which the Company or any Subsidiary is a party or to which the property or assets of the Company or any Subsidiary are subject are included as part of or identified in the SEC Reports, to the extent such agreements are required to be included or identified pursuant to the rules and regulations of the SEC."
"(i) Absence of Litigation. Except as disclosed in the SEC Reports, there is no action, suit, claim, or Proceeding, or, to the Companys knowledge, inquiry or investigation, before or by any court, public board, government agency, self- regulatory organization or body pending or, to the knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries that could, individually or in the aggregate, have a Material Adverse Effect."
"(q) Disclosure Controls and Procedures. The Company maintains disclosure controls and procedures (as such term is defined in Rule13a-15 of the General Rules and Regulations under the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that information required to be disclosed by the Company and its Subsidiaries is accumulated and communicated to the Companys management, including the Companys principal executive officer and principal financial officer by others within those entities, such disclosure controls and procedures are effective."
"(r) Sarbanes-Oxley Act. The Company is in compliance in all material respects with any and all applicable requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by the SEC thereunder that are effective as of the date hereof."
"The legend set forth above shall be removed and the Company shall issue a certificate without such legend to the holder of the Securities upon which it is stamped or issue to such holder by electronic delivery at the applicable balance account of The Depository Trust Company (DTC), if, unless otherwise required by state securities laws, (i)such Securities are registered for resale under the Securities Act and are transferred to the Investor pursuant to a registration statement that is effective at the time of such transfer, (ii)in connection with a sale, assignment or other transfer, such holder provides the Company with an opinion of counsel, the form and substance of which opinion shall be reasonably acceptable to the Company, that the sale, assignment or transfer of the Securities may be made without registration under the applicable requirements of the Securities Act or (iii)such holder provides the Company with reasonable assurance that the Securities can be sold, assigned or transferred pursuant to Rule144 or have been sold under Rule144\. If the Company shall fail for any reason or for no reason to issue to the holder of the Securities within three (3)Trading Days after the holder has provided reasonable evidence to the Company of the occurrence of any of (i)through (iii)above (the date such evidence is provided to the Company, the Removal Date), a certificate without such legend to the holder or to issue such Securities to such holder by electronic delivery at the applicable balance account at DTC (as defined below), and if on or after such Trading Day the holder purchases (in an open market transaction or otherwise) the Common Stock issued to the Investors pursuant to this Agreement to deliver in satisfaction of a sale by the"
"4.4 Reservation of Securities. The Company shall maintain a reserve from its duly authorized shares of Common Stock for issuance pursuant to the Transaction Documents in such amount as may be required to fulfill its obligations to issue such shares under the Transaction Documents. In the event that at any time the then authorized shares of Common Stock are insufficient for the Company to satisfy its obligations to issue such shares of Common Stock under the Transaction Documents, the Company shall use reasonable best efforts to promptly take such actions as may be required to increase the number of authorized shares."
"provided, that Event Payments on the Registrable Securities may not accrue under more than one of the foregoing clauses(i), (ii), (iii) and (iv), at any one time; and provided further, that (1)upon the filing of the Registration Statement as required hereunder (in the case of Section5.1(i)), (2)upon the effectiveness of a Registration Statement as required hereunder (in the case of Section5.1(ii)), (3)upon the resumed trading of the Common Stock (in the case of Section5.1(iii)), or (4)upon the resumption of an Investors ability to resell the Registrable Securities under an effective Registration Statement or the Companys satisfaction of the current public information requirement under Rule144(c) of the Securities Act (in the case of Section5.1(d)), Event Payments on the Registrable Securities as a result of such clause shall cease to accrue. It is understood and agreed that, notwithstanding any provision to the contrary, no Event Payments shall accrue on any Registrable Securities that are then covered by, and may be sold under, an Effective Registration Statement."
"In no event, however, shall this right be exercised to suspend sales beyond the period during which (in the good faith determination of the Companys Board of Directors) the failure to require such suspension would be materially detrimental to the Company. The Companys rights under this Section5(e) may be exercised for a period of no more than 20 calendar days at a time and not more than three times in any twelve-month period, without such suspension being considered as part of an Event Payment determination. Immediately after the end of any suspension period under this Section5(e), the Company shall take all necessary actions (including filing any required supplemental prospectus) to restore the effectiveness of the applicable Registration Statement and the ability of the Investors to publicly resell their Registrable Securities pursuant to such effective Registration Statement."
"(e) If requested by an Investor, provide such Investor and Counsel to the lead investor, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the SEC."
"(h) Prior to any public offering of Registrable Securities, use its commercially reasonable efforts to register or qualify or cooperate with the selling Investors in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any Investor requests in writing, to keep each such registration or qualification (or exemption therefrom) effective for so long as required, but not to exceed the duration of the Effectiveness Period, and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject."
"(j) Upon the occurrence of any event described in Sections5.2(c)(iv), (v)or (vi), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an 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 light of the circumstances under which they were made, not misleading."
"(a) Indemnification by the Company. The Company shall, notwithstanding any termination of this Agreement, indemnify and hold harmless each Investor, the officers, directors, partners, members, agents and employees of each of them, each Person who controls any such Investor (within the meaning of Section15 of the Securities Act or Section20 of the Exchange Act) and the officers, directors, partners, members, agents and employees of each such controlling Person, to the fullest extent permitted by applicable law, from and against any and all Losses, as incurred, arising out of or relating to (i)any misrepresentation or breach of"
"(d) Contribution. If a claim for indemnification under Section5.4(a) or (b)is unavailable to an Indemnified Party (by reason of public policy or otherwise), then each Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include, subject to the limitations set forth in Section5.4(c), any reasonable attorneys or other reasonable fees or expenses incurred by such party in connection with any Proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in this Section was available to such party in accordance with its terms."
"6.8 Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the Company and each Investor and their respective successors and permitted assigns. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, other than those persons mentioned in the preceding sentence or otherwise explicitly mentioned in this Agreement, 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)each Indemnified Party is an intended third party beneficiary of Section5.4 and Section6.18 and (in each case) may enforce the provisions of such Sections directly against the parties with obligations thereunder and (ii)the Agents are intended third party beneficiaries of the representations and warranties of the Company and the Investors in ArticleIII."
"6.13 Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) the Transaction Documents, whenever any Investor exercises a right, election, demand or option owed to such Investor by the Company under a Transaction Document and the Company does not timely perform its related obligations"
"(b) the Agents and any of their respective affiliates or representatives shall be entitled to (i)rely on, and shall be protected in acting upon any certificate, instrument, opinion, notice, letter or any other document or security delivered to any of them by or on behalf of the Company and (ii)be indemnified by the Company for acting as Agent hereunder pursuant to the indemnification provisions set forth in the Engagement Letter, which are hereby incorporated by reference herein."
| | | | ---|---|---|---|--- Name of Investor:  | By: |  |  |  | Name: |  | |  | Title: |  | | | | | ---|---|---|---|--- | | Address: |  |  |  |  | | |  |  |  |  | | TelephoneNo.: |  |  |  |  | | FacsimileNo.: |  |  |  |  | | EmailAddress: |  |  |  |  | | NumberofUnits: |  |  |  |  Purchase Price Per Unit: $23.94 | | | | ---|---|---|---|--- | | AggregatePurchasePrice:$ |  |  |  |  * * *
"Common Stock Equivalents means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock."
"4\. 1Organization, Good Standing and Qualification. Each of the Company and its Subsidiaries is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all requisite corporate power and authority to carry on its business as now conducted and to own its properties. Each of the Company and its Subsidiaries is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property makes such qualification or leasing necessary unless the failure to so qualify has not and could not reasonably be expected to have a Material Adverse Effect."
"4.5Consents. The execution, delivery and performance by the Company of the Transaction Documents, and the offer, issuance and sale of the Securities require no consent of, action by or in respect of, or filing with, any Person, governmental body, agency, or official other than filings that have been made pursuant to applicable state securities laws, and post-sale filings pursuant to applicable state and federal securities laws which the Company undertakes to file within the applicable time periods. Subject to the accuracy of the representations and warranties of the Investor set forth in Section 5 hereof, the Company has taken all action necessary to exempt (i) the issuance and sale of the Securities, (ii) the issuance of the Shares upon due conversion of the Debenture, and (iii) the other transactions contemplated by the Transaction Documents from the provisions of any shareholder rights plan or other poison pill arrangement, any anti-takeover, business combination or control share law or statute binding on the Company or to which the Company or any of its assets and properties may be subject and any provision of the Companys Articles of Incorporation or By-laws that is or could reasonably be expected to become applicable to the Investor as a result of the transactions contemplated hereby, including without limitation, the issuance of the Securities and the ownership, disposition or voting of the Securities by the Investor or the exercise of any right granted to the Investor pursuant to this Agreement or the other Transaction Documents."
"4.11No Integrated Offering. Neither the Company nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any Company security or solicited any offers to buy any security, under circumstances that would adversely affect reliance by the Company on Section 4(a)(2) for the exemption from registration for the transactions contemplated hereby or would require registration of the Securities under the 1933 Act."
"7.3Conduct of Indemnification Proceedings. Promptly after receipt by any Person (the Indemnified Person) of notice of any demand, claim or circumstances which would or might give rise to a claim or the commencement of any action, proceeding or investigation in respect of which indemnity may be sought pursuant to Section 7.2, such Indemnified Person shall promptly notify the Company in writing and the Company shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such Indemnified Person, and shall assume the payment of all fees and expenses; provided, however, that the failure of any Indemnified Person so to notify the Company shall not relieve the Company of its obligations hereunder except to the extent that the Company is materially prejudiced by such failure to notify. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless: (i) the Company and the Indemnified Person shall have mutually agreed to the retention of such counsel; or (ii) in the reasonable judgment of counsel to such Indemnified Person representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Company shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent, or if there be a final judgment for the plaintiff, the Company shall indemnify and hold harmless such Indemnified Person from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment. Without the prior written consent of the Indemnified Person, which consent shall not be unreasonably withheld, the Company shall not effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Person from all liability arising out of such proceeding."
"8.8Entire Agreement. This Agreement, including the Exhibits and the Disclosure Schedules, and the other Transaction Documents constitute the entire agreement among the parties hereof with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter hereof and thereof."
"8.10Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York, without regard to principles of conflicts of law. THE COMPANY AND INVESTOR WAIVE ANY RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS DEBENTURE OR ANY TRANSACTION CONTEMPLATED HEREIN, INCLUDING CLAIMS BASED ON CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER COMMON LAW OR STATUTORY BASIS. Each party hereby submits to the exclusive jurisdiction of the state and federal courts located in the County of New York, State of New York. If the jury waiver set forth in this Section is not enforceable, then any dispute, controversy or claim arising out of or relating to this Agreement or any of the transactions contemplated herein will be finally settled by binding arbitration in New York, New York in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association by one arbitrator appointed in accordance with said rules. The arbitrator shall apply New York law to the resolution of any dispute, without reference to rules of conflicts of law or rules of statutory arbitration. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for preliminary or interim equitable relief, or to compel arbitration in accordance with this paragraph. The expenses of the arbitration, including the arbitrators fees and expert witness fees, incurred by the parties to the arbitration, may be awarded to the prevailing party, in the discretion of the arbitrator, or may be apportioned between the parties in any manner deemed appropriate by the arbitrator. Unless and until the arbitrator decides that one party is to pay for all (or a share) of such expenses, both parties shall share equally in the payment of the arbitrators fees as and when billed by the arbitrator."
"""REGISTERED SECURITIES"" shall mean the (a) Put Shares, (b) the Commitment Shares and (c) any securities issued or issuable with respect to any of the foregoing by way of exchange, stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise. As to any particular Registered Securities, once issued such securities shall cease to be Registered Securities when (i) a Registration Statement has been declared effective by the SEC and such Registered Securities have been disposed of pursuant to a Registration Statement, (ii) such Registered Securities have been sold under circumstances under which all of the applicable conditions of Rule 144 are met, (iii) such time as such Registered Securities have been otherwise transferred to holders who may trade such shares without restriction under the Securities Act or (iv) in the opinion of counsel to the Company, which counsel shall be reasonably acceptable to Investor (for which purposes it is agreed that the Companys counsel as of the Execution Date shall be deemed acceptable), such Registered Securities may be sold without registration under the Securities Act or the need for an exemption from any such registration requirements and without any time, volume or manner limitations pursuant to Rule 144(b)(i) (or any similar provision then in effect) under the Securities Act."
"Section 3.4AUTHORITY. (a) Investor has the requisite power and authority to enter into and perform its obligations under this Agreement and the transactions contemplated hereby in accordance with its terms; (b) the execution and delivery of this Agreement and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action and no further consent or authorization of Investor or its partners is required; and (c) this Agreement has been duly authorized and validly executed and delivered by Investor and constitutes a valid and binding obligation of Investor enforceable against it in accordance with its terms, subject to 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 3.10Estimates; Forward-Looking Statements. The Investor acknowledges that any and all estimates or forward-looking statements or projections with which it may have been provided (collectively, the Information) were prepared by the Company in good faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed, will not be updated by the Company and should not be relied upon.The Investor further acknowledges that any and all Information regarding the historical performance of the Company is not necessarily indicative of future performance. "
"Section 3.11Trading Activities; No Short Sales. Neither the Investor nor any of its affiliates currently has an open short position in the Common Stock.Since the earlier of (a) such time when such Investor was first contacted by the Company or any other person acting on behalf of the Company regarding the transactions contemplated hereby or (b) thirty (30) days prior to the date hereof, neither such Investor nor any affiliate of such Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Investors investments or trading or information concerning such Investors investments, including in respect of the Registered Securities, or (z) is subject to such Investors review or input concerning such affiliates investments or trading (collectively, Trading Affiliates) has, directly or indirectly, effected or agreed to effect any Short Sale, whether or not against the box, established any put equivalent position (as defined in Rule 16a-1(h) under the Exchange Act) with respect to the Common Stock, granted any other right (including, without limitation, any put or call option) with respect to the Common Stock or with respect to any security that includes, relates to or derived any significant part of its value from the Common Stock or otherwise sought to hedge its position in the Registered Securities."
"Section 4.1ORGANIZATION OF THE COMPANY. The Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted. The Company is duly qualified as a foreign corporation to do business and is in good standing in every jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, other than those in which the failure so to qualify would not have a Material Adverse Effect."
"Section 4.10DILUTION. The number of shares of Common Stock issuable as Put Shares may increase substantially in certain circumstances, including, but not necessarily limited to, the circumstance wherein the trading price of the Common Stock declines during the period between the Execution Date and the end of the Commitment Period. The Companys executive officers and directors have studied and fully understand the nature of the transactions contemplated by this Agreement and recognize that they have a potential dilutive effect. The board of directors of the Company has concluded in its good faith business judgment that such issuance is in the best interests of the Company. The Company specifically acknowledges that its obligation to issue the Put Shares is binding upon the Company and enforceable regardless of the dilution such issuance may have on the ownership interests of other shareholders of the Company."
"Section 5.1COMPLIANCE WITH LAW; TRADING IN SECURITIES. Investor's trading activities with respect to shares of the Common Stock will be in compliance with all applicable state and federal securities laws, rules and regulations and the rules and regulations of FINRA and the Principal Market on which the Common Stock is listed or quoted."
"Section 6.2LISTING OF COMMON STOCK. If the Company applies to have the Common Stock traded on any other Principal Market, it shall include in such application the Put Shares, and shall take such other action as is necessary or desirable in the reasonable opinion of Investor to cause the Common Stock to be listed on such other Principal Market as promptly as possible. 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 Company's reporting, filing and other obligations under the bylaws or rules of the FINRA and the Principal Market."
"(d) NO INJUNCTION. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or adopted by any court or governmental authority of competent jurisdiction that prohibits or directly and materially adversely affects any of the transactions contemplated by this Agreement, and no proceeding shall have been commenced that may have the effect of prohibiting or materially adversely affecting any of the transactions contemplated by this Agreement."
"Section 10.5 TERMINATION. The Company may terminate this Agreement at any time by written notice to the Investor. Additionally, this Agreement shall terminate at the end of Commitment Period or as otherwise provided herein; provided, however, that the provisions of Articles IX, and Sections 10.1 and 10.2 shall survive the termination of this Agreement for a period of twenty four (24) months."
"Section 10.8 COUNTERPARTS. This Agreement may be executed in multiple counterparts, each of which may be executed by less than all of the parties and shall be deemed to be an original instrument which shall be enforceable against the parties actually executing such counterparts and all of which together shall constitute one and the same instrument. This Agreement may be delivered to the other parties hereto by email of a copy of this Agreement bearing the signature of the parties so delivering this Agreement."
" | COMPANY: ---|---  |  |   | EVANS BREWING COMPANY, INC.  |  |   | By: | /s/ Michael Rapport  | Name: | Michael Rapport  | Title: | Chief Executive Officer  |  |   | INVESTOR:  |  |   | KODIAK CAPITAL GROUP, LLC  |  |   | By: | /s/ Ryan Hodson  | Name: | Ryan Hodson  | Title: | Managing Member "
"Intellectual Property means all of the following in any jurisdiction throughout the world: (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all U.S. and foreign patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof, (b) all trademarks, service marks, brand names, certification marks, trade dress, logos, trade names, domain names, assumed names and corporate names, together with all colorable imitations thereof, and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (c) all copyrights, and all applications, registrations, and renewals in connection therewith, (d) all trade secrets under applicable state laws and the common law and know-how (including formulas, techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals), (e) all computer software (including source code, object code, diagrams, data and related documentation), and (f) all copies and tangible embodiments of the foregoing (in whatever form or medium)."
"(ii) Second Closing. The closing of the purchase and sale of the Tranche B Notes (the Second Closing) shall take place at the offices of Company Counsel or such other location as the parties shall mutually agree, or by transmission by facsimile and/or overnight courier, immediately following the execution hereof, or such later date or different location as the parties shall agree, but not prior to the First Closing Date and not prior to the date that the conditions set forth in Section 2.2 and 2.3 have been satisfied or waived by the appropriate party (the Second Closing Date). At the Second Closing: (A) Each Purchaser shall deliver to the Escrow Agent, via wire transfer immediately available funds equal to such Purchasers Subscription Amount as set forth on the signature page hereto executed by such Purchaser and as set forth on Appendix I-B; (B) the Company shall deliver to each Purchaser its respective Tranche B Note and Commitment Shares pursuant to Section 2.2(a) and in accordance with Appendix I-B; and (C) the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing. If the Second Closing is not held on or before May 16, 2016, the Company shall cause the Escrow Agent to return all Subscription Amounts related to the Second Closing, without interest or deduction to each prospective Purchaser."
"or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect."
"(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 issuance of the Securities or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a claim in excess of $25,000. Neither the Company nor any Subsidiary, nor any director or officer thereof, is or has been or in the last ten years 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, except for Actions which will not have a Material Adverse Effect. There has not been, and to the Knowledge of the Company, there is not pending or contemplated, any investigation by the SEC involving the Company or any current or former director or officer of the Company, except for Actions which will not have a Material Adverse Effect. The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act."
"The Company has not agreed to indemnify any Person for or against any interference, infringement, misappropriation, or other conflict with respect to the item. ---|--- (iv) Schedule 3.1(p)(iv) identifies each item of Intellectual Property that any third party owns and that the Company uses pursuant to license, sublicense, agreement, or permission, excluding off-the-shelf software purchased or licensed by the Company. The Company has delivered to the Purchaser correct and complete copies of all such licenses, sublicenses, agreements, and permissions (each as amended to date) (each, a Licensed Intellectual Property Agreement). With respect to each Licensed Intellectual Property Agreement:"
"(z) No Integrated Offering. Assuming the accuracy of the Purchasers representations and warranties set forth in Section 3.2, neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities to be integrated with prior offerings by the Company for purposes of any applicable shareholder approval provisions of any Trading Market on which any of the securities of the Company are listed or designated."
"(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, 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, 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 Effective Date. The SEC Reports set forth as of the Effective Date all outstanding secured and 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 $25,000 (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 $10,000 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."
"(ll) Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Companys Knowledge, any director, officer, agent, employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (OFAC)."
"(ii) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year, result in a material loss to the Company, or involve consideration in excess of $25,000;"
"(tt) Preferred Stock. As of the Effective Date, the only authorized and outstanding shares of preferred stock of the Company are its Series A Preferred stock consisting of 1,000 shares issued to Wellington Mannor Holdings (WMH). Such shares are convertible into no more than 3,000 shares of Common Stock. Neither WMH nor its beneficial owners are officers, directors or Affiliates of the Company."
"(a) Until the time that no Purchaser owns Securities, the Company covenants to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the Effective Date pursuant to the Exchange Act even if the Company is not then subject to the reporting requirements of the Exchange Act."
"4.4 Securities Laws Disclosure; Publicity. The Company shall file a Current Report on Form 8-K, including the Transaction Documents as exhibits thereto, with the SEC within seventy-two (72) hours of the Effective Date. From and after the filing of such Current Report on Form 8-K, the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of the Purchasers by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon the filing of the Current Report on Form 8-K described in this Section, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates on the one hand, and any of the Purchasers or any of their Affiliates on the other hand, shall terminate. The Company and each Purchaser shall consult with each other in issuing any press releases with respect to the transactions contemplated hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company, with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing with the SEC or any regulatory agency or Trading Market, without the prior written consent of such Purchaser, except (a) as required by federal securities law in connection with the filing of final Transaction Documents with the SEC and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers with prior notice of such disclosure permitted under this clause (b)."
"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 SEC 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. The Company shall use the net proceeds from the sale of the Securities hereunder for working capital purposes only 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, (d) in violation of FCPA or OFAC regulations, or (e) to lend money, give credit or make advances to any officers, directors, employees or Affiliates of the Company."
"(a) From the Effective Date until the date that is the one (1) year anniversary of the Effective Date, upon any contemplated issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents for cash consideration, Indebtedness or a combination of units hereof (a Subsequent Financing), each Purchaser shall have the right (the ROFR) to participate in up to an amount of the Subsequent Financing equal to 100% of the Subsequent Financing (the Participation Maximum) on the same terms, conditions and price provided for in the Subsequent Financing. At least ten (10) Trading Days prior to the closing of the Subsequent Financing, the Company shall deliver to each Purchaser a written notice of its intention to effect a Subsequent Financing (Pre-Notice), which Pre-Notice shall ask such Purchaser if it wants to review the details of such financing (such additional notice, a Subsequent Financing Notice). Upon the request of a Purchaser, and only upon a request by such Purchaser, for a Subsequent Financing Notice, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver a Subsequent Financing Notice to such Purchaser. The Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder and the Person or Persons through or with whom such Subsequent Financing is proposed to be effected and shall include a term sheet or similar document relating thereto as an attachment."
"(b) Any Purchaser desiring to exercise its ROFR must provide written notice to the Company by not later than 5:30 p.m. (New York City time) on the fifth (5th) Trading Day after all of the Purchasers have received the Pre-Notice that such Purchaser is willing to exercise its ROFR in connection with the Subsequent Financing, the amount of such Purchasers participation, and representing and warranting that such Purchaser has such funds ready, willing, and available for investment on the terms set forth in the Subsequent Financing Notice. If the Company receives no such notice from a Purchaser as of such fifth (5th) Trading Day, such Purchaser shall be deemed to have notified the Company that it does not elect to exercise its ROFR."
"(e) The Company must provide the Purchasers with a second Subsequent Financing Notice, and the Purchasers will again have the right of participation set forth above in this Section 4.11, if the Subsequent Financing subject to the initial Subsequent Financing Notice is not consummated for any reason on the terms set forth in such Subsequent Financing Notice within thirty (30) Trading Days after the date of the initial Subsequent Financing Notice."
"4.13 Equal 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 the 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 Securities or otherwise."
"4.14 Certain 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 pursuant to the Current Report on Form 8-K described in Section 4.4. 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 pursuant to the Current Report on Form 8-K described in Section 4.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in 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 pursuant to the Current Report on Form 8-K described in Section 4.4, (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 Current Report on Form 8-K described in Section 4.4 and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the Company to the Company or its Subsidiaries after the filing of the Current Report on Form 8-K described in Section 4.4. 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."
"5.1 Termination. This Agreement may be terminated by any Purchaser, as to such Purchasers obligations hereunder only and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the such Purchasers applicable Closing has not been consummated on or before May 12, 2016 for the First Closing and May 16, 2016 for the Second Closing; provided, however, that no such termination will affect the right of any party to sue for any breach by any other party (or parties)."
"5.2 Fees and Expenses. Except as expressly set forth below and 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 (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any exercise notice delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Purchasers. The Company agrees to pay counsel for the Lead Investor $20,000 ($5,000 of which has been paid in advance) in fees together with reasonable costs including those necessary to provide the Purchasers with a first lien on all of the assets of the Company. From the"
"5.3 Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules."
"5.4 Notices. All notices, offers, acceptance and other acts under this Agreement (except payment) shall be in writing and shall be sufficiently given if delivered to the addressees in person, by Federal Express or similar overnight next business day delivery, or by email delivery followed by overnight next business day delivery as follows:"
"5.5 Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company and the Purchasers who purchased at least a majority in interest of the Notes based on the initial Subscription Amounts hereunder or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought; provided, that if any amendment, modification or waiver disproportionately and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately impacted Purchaser (or group of Purchasers) shall also be required. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right. Any proposed amendment or waiver that disproportionately, materially and adversely affects the rights and obligations of any Purchaser relative to the comparable rights and obligations of the other Purchasers shall require the prior written consent of such adversely affected Purchaser, Any amendment effected in accordance with accordance with this Section 5.5 shall be binding upon each Purchaser and holder of Securities and the Company."
"5.12 Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable."
"5.17 Independent Nature of Purchasers Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto including any action taken by the Collateral Agent (whether under this Agreement or the Security Agreement), shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently protect and enforce its rights including, without limitation, the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose. Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. The Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained in this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and the Purchasers collectively and not between and among the Purchasers."
5.18 Liquidated Damages. The Companys obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts are due and payable shall have been canceled.
"THIS WARRANT PURCHASE AGREEMENT (this Agreement) dated as of April 29, 2016 (Effective Date) by and between Helpful Alliance Company with principal address as 700 West Hillsboro Blvd, Suite 1-100, Deerfield Beach, Florida 33441, a Florida corporation (the Company), and Zimas LLC, a Florida limited liability company with principal address at 18911 Collins Avenue, Suite #2701, Sunny Isles Beach, Florida 33160 (Investor)."
"SECTION 2.3 Validity; Enforceability. This Agreement has been duly executed and delivered by the Company, and constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by, or subject to, any bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors rights generally and subject to general principles of equity."
"SECTION 2.5 Restricted Shares. The Warrant and the Shares underlying the Warrant have not been registered under the Securities Act or the laws of any other jurisdiction by reason of a specific exemption or exemptions from registration under the Securities Act and applicable state or international securities laws, and that the Companys reliance on such exemptions is predicated on the accuracy and completeness of the Investors representations, warranties, acknowledgments and agreements herein. The Securities cannot be sold or transferred by the Investor unless subsequently registered under applicable law or an exemption from registration is available. The Company is not required to register the Securities or to make any exemption from registration available. The right to sell or transfer any of the securities under this Agreement will be restricted as described in this Subscription Agreement for the Shares, which include restrictions against sale or transfer in violation of applicable securities laws, the requirement that an opinion of counsel be furnished that any proposed sale or transfer will not violate such laws and other restrictions and requirements. There will be no public market for the Securities and the Subscriber may not be able to sell the Securities. Accordingly, the Subscriber must bear the economic risk of the Subscribers investment in the Securities for an indefinite period of time."
"SECTION 3.1 Organization, etc. The Investor has been duly formed and is validly existing and in good standing under the laws of its jurisdiction of organization. The Investor has the requisite organizational power and authority to enter into, execute, deliver and perform all of its duties and obligations under this Agreement and to consummate the transactions contemplated hereby."
"(a) The Company shall have no obligation to prepare or file with the Commission a registration statement under the Securities Act with respect to the offer and sale by the Investor of the Warrant or the Shares underlying the Warrant, but shall use commercially reasonable efforts to cause the Warrant or the Shares underlying the Warrant (which choice shall be made by the Investor in writing) to be registered for resale by the Investor and to be declared effective by the Commission prior to the Exercise Period (as the same may be amended or supplemented from time to time, the Registration Statement). The Company shall further use commercially reasonable efforts to maintain the effectiveness of such Registration Statement until the earliest to occur of the following: (i) the Shares underlying the Warrant has been disposed of by the Investor pursuant to the Registration Statement or otherwise transferred (or in the case of the Warrants registration, all of the Warrants have been disposed by the Investor or have expired); or (ii) the Shares can be resold pursuant to subsection (k) of Rule 144, promulgated under the Securities Act, or any similar provisions then in effect."
"SECTION 6.4 Assignments; Parties in Interest. Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties. This Agreement shall be binding upon and inure solely to the benefit of each party hereto, and nothing herein, express or implied, is intended to or shall confer upon any person not a party hereto any right, benefit or remedy of any nature whatsoever under or by reason hereof, except as otherwise provided herein."
"Section 5\. Certain Covenants. The Company covenants and agrees that all shares of capital stock of the Company that may be issued upon the exercise of the Warrants evidenced hereby will be duly authorized, validly issued and fully paid and nonassessable. The Company shall at all times reserve and keep available for issuance upon the exercise of the Warrants, such number of its authorized but unissued shares of Common Stock as will from time to time be sufficient to permit the exercise of all outstanding Warrants, and shall take all action required to increase the authorized number of shares of Common Stock if at any time there shall be insufficient authorized but unissued shares of Common Stock to permit such reservation or to permit the exercise of all outstanding Warrants."
"Section 7\. Transfer of Warrants. Any transfer of the rights represented by this Warrant Certificate shall be effected by the surrender of this Warrant Certificate, along with the form of assignment attached hereto, properly completed and executed by the registered Holder hereof, at the principal executive office of the Company in the United States of America, together with an appropriate investment letter and opinion of counsel, if deemed reasonably necessary by counsel to the Company, to assure compliance with applicable securities laws. Thereupon, the Company shall issue in the name or names specified by the registered Holder hereof and, in the event of a partial transfer, in the name of the registered Holder hereof, a new Warrant Certificate or Certificates evidencing the right to purchase such number of Shares of Common Stock as shall be equal to the number of shares of Common Stock then purchasable hereunder."
"Section 9\. Replacement of Warrants. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant Certificate and, in the case of loss, theft or destruction, upon delivery of an indemnity reasonably satisfactory to the Company (in the case of an insurance company or other institutional investor, its own unsecured indemnity agreement shall be deemed to be reasonably satisfactory), or, in the case of mutilation, upon surrender and cancellation thereof, the Company will issue a new Warrant Certificate of like tenor for a number of Warrants equal to the number of Warrants evidenced by this Warrant Certificate."
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THIS NOTE 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 APPLICABLE STATE SECURITIES LAWS OR (B) AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT."
"FOR VALUE RECEIVED, each of USELL.COM, INC., a Delaware corporation (USELL), BST DISTRIBUTION, INC., a New York corporation (BST), WE SELL CELLULAR LLC, a Delaware limited liability company (WE SELL; together with USELL and BST, the Companies and each a Company), hereby promises to pay to ________________ (the Holder) or its registered assigns or successors in interest, the sum of TWO MILLION TWENTY THOUSAND DOLLARS ($2,020,000), together with any accrued and unpaid interest hereon subject to the terms and conditions set forth herein."
"Capitalized terms used herein without definition shall have the meanings ascribed to such terms in that certain Note Purchase Agreement, dated as October 23, 2015 (as amended, restated, modified and/or supplemented from time to time, the Purchase Agreement) among Companies, the Holder, each other Purchaser and BAM ADMINISTRATIVE SERVICES LLC, as agent for the Purchasers (the Agent and together with the Purchasers (including the Holder), collectively, the Creditor Parties), pursuant to which this Secured Term Note was issued."
"1.7Default Interest. Following the occurrence and during the continuance of any Event of Default, Companies shall pay additional interest on the outstanding principal balance of this Note, at a rate per annum which is determined by adding five percent (5.0%) per annum to the Contract Rate (Default Interest Rate), and all outstanding obligations under this Note, the Purchase Agreement and each other Related Agreement, including unpaid interest, shall continue to accrue interest at the Default Interest Rate from the date of such Event of Default until the date such Event of Default is cured or waived in writing by the Agent."
"1.8Acceleration. If any Event of Default shall have occurred and be continuing, (a)if such event is an Event of Default specified in Section 1.6(e), all of the Notes at the time outstanding shall automatically become immediately due and payable together with interest accrued thereon, without any requirement of presentment, demand, protest or notice of any kind, all of which are hereby waived, and (b) if such event is not an Event of Default specified in Section 1.6(e) (as a result of which the Notes have already been accelerated), the Agent or the holders of a majority of the outstanding principal amount of the Notes may at their option, by notice in writing to Companies, declare all of the Notes to be, and all of the Notes shall thereupon be and become, immediately due and payable together with interest accrued thereon, without any requirement of further presentment, demand, protest or other notice of any kind, all of which are hereby waived and with the consent of the Creditor Parties, the Agent shall exercise on behalf of the Creditor Parties (including the holders of all of the Notes) all rights and remedies available to them under the Security Agreement and any other Related Document."
"2.5Assignability. This Note shall be binding upon each Company and its successors and assigns, and shall inure to the benefit of the Holder and its successors and assigns, and may be assigned by the Holder in accordance with the requirements of the Purchase Agreement. No Company may assign any of its obligations under this Note without the prior written consent of the Holder, any such purported assignment without such consent being null and void."
"(b)EACH COMPANY HEREBY CONSENTS AND AGREES THAT THE STATE AND/OR FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN ANY COMPANY, ON THE ONE HAND, AND THE HOLDER AND/OR ANY OTHER CREDITOR PARTY, ON THE OTHER HAND, PERTAINING TO THIS NOTE OR ANY OF THE OTHER RELATED AGREEMENTS OR TO ANY MATTER ARISING OUT OF OR RELATED TO THIS NOTE OR ANY OF THE RELATED AGREEMENTS; PROVIDED, THAT EACH COMPANY ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE COUNTY OF NEW YORK, STATE OF NEW YORK; AND FURTHER PROVIDED, THAT NOTHING IN THIS NOTE SHALL BE DEEMED OR OPERATE TO PRECLUDE THE HOLDER AND/OR ANY OTHER CREDITOR PARTY FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION WHERE ANY OF THE COLLATERAL IS LOCATED TO COLLECT THE LIABILITIES (AS DEFINED IN THE SECURITY AGREEMENT), TO REALIZE ON THE COLLATERAL (AS DEFINED IN THE SECURITY AGREEMENT) OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE HOLDER AND/OR ANY OTHER CREDITOR PARTY. EACH COMPANY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH COMPANY HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS. EACH COMPANY HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH COMPANY AT THE ADDRESS SET FORTH IN THE PURCHASE AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH COMPANYS ACTUAL RECEIPT THEREOF OR FIVE (5) DAYS AFTER DEPOSIT IN THE U.S. MAIL, PROPER POSTAGE PREPAID."
"2.8Severability. In the event that any provision of this Note 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 this Note."
" | USELL.COM, INC. ---|---  |  |   | By: |  |  | Name:Nikhil Raman  |  | Title:Chief Executive Officer  |  |   | BST DISTRIBUTION, INC.  |  |   | By: |  |  | Name:Brian Tepfer  |  | Title:Chief Executive Officer  |  |   | WE SELL CELLULAR LLC  |  |   | By: |  |  | Name:Nikhil Raman  |  | Title:Manager "
"B. The offer and sale of the Securities provided for herein are being made pursuant to exemption from registration under Section 4(2) of the Act as a transaction by an issuer not involving any public offering, and as a private placement of restricted securities pursuant to Rule 506 of Regulation D or Regulation S promulgated under the Act."
"1. Organization and Qualification. Company and each Subsidiary 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, as applicable, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither Company nor any Subsidiary 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 Company and each Subsidiary 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."
"5. Issuance of Securities. The Securities 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. Company has reserved and will continue to reserve from its duly authorized capital stock sufficient shares of its Preferred Shares and Common Stock for issuance pursuant to the Transaction Documents. "
"2. Subsidiaries. All of the direct and indirect subsidiaries of Company (if any) are set forth in the Public Reports. Company owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary, and all of such directly or indirectly owned capital stock or other equity interests are owned free and clear of any Liens. All the issued and outstanding shares of capital stock of each Subsidiary are duly authorized, validly issued, fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities."
"3. Experience of Purchaser. Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities, and has so evaluated the merits and risks of such investment. Purchaser is able to bear the economic risk of an investment in the Securities and, at the present time, is able to afford a complete loss of such investment."
"L. Construction. The parties agree that each of them and/or their respective counsel has 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 will not be employed in the interpretation of the Transaction Documents or any amendments hereto. 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. All currency references in this Agreement and any Transaction Document refer to U.S. dollars."
"M. Execution. This Agreement may be executed in two or more counterparts, all of which when taken together will be considered one and the same agreement and will 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 portable document format, facsimile or electronic transmission, such signature will 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 signature page were an original thereof."
"C. Dividends. Holders shall be entitled to receive cumulative dividends at the rate per share (as a percentage of the Original Issue Price per share) of 10% per annum in accordance with the terms of this Certificate of Designation. Dividends shall be payable (x) by way of inclusion in the conversion amount on each conversion date or (y) upon any redemption. So long as any shares of Series G Preferred Stock are outstanding, no dividends or other distributions will be paid, declared or set apart with respect to any Common Stock, unless the amount of any accumulated dividends are first paid to the holders of Series G Preferred Stock."
"4. Rights. In addition to any adjustments pursuant to Section I.G.3, if at any time the Corporation grants, issues or sells any options, convertible securities or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock (the Purchase Rights), then Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which Holder could have acquired if Holder had held the number of shares of Common Stock acquirable upon conversion of all Preferred Stock held by Holder immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights."
"H. Register. The Corporation will keep at its principal office, or at the offices of the transfer agent, a register of the Series G Preferred Stock. Upon the surrender of any certificate representing Series G Preferred Stock at such place, the Corporation, at the request of the record Holder of such certificate, will execute and deliver (at the Corporations expense) a new certificate or certificates in exchange therefor representing in the aggregate the number of shares represented by the surrendered certificate. Each such new certificate will be registered in such name and will represent such number of shares as is requested by the Holder of the surrendered certificate and will be substantially identical in form to the surrendered certificate."
"similar contractual obligations, (c) for the deferred purchase price of property, goods or services (other than trade payables or accruals incurred in the Ordinary Course of Business, but including any deferred purchase price Liabilities, earnouts, contingency payments, installment payments, seller notes, promissory notes, or similar Liabilities, in each case, related to past acquisitions by the Acquired Companies and, for the avoidance of doubt, in each case, whether or not contingent), (d) under capital leases (in accordance with GAAP), (e) in respect of letters of credit and bankers acceptances (in each case whether or not drawn, contingent or otherwise), (f) in respect of deferred compensation for services, (g) in respect of severance, change of control payments, stay bonuses, retention bonuses, success bonuses, and other bonuses and similar Liabilities payable in connection with the transactions contemplated hereby, (h) for contractual obligations relating to interest rate protection, swap agreements and collar agreements and (i) in the nature of guarantees of the obligations described in clauses (a) through (h) above of any other Person."
"Environmental Laws means any Legal Requirement relating to (a) releases or threatened releases of Hazardous Substances, (b) pollution or protection of public health or the indoor or outdoor environment or worker safety or health or (c) the generation, manufacture, handling, transport, use, treatment, storage, or disposal of Hazardous Substances, including, without limitation, the Comprehensive Environmental, Response, Compensation, and Liability Act of 1980, 42 U.S.C.  9601 et seq., the Resource Conservation and Recovery Act, 42 U.S.C.  6901 et seq., the Clean Water Act, 33 U.S.C.  1251 et seq., the Clean Air Act, 42 U.S.C.  7401 et seq., the Toxic Substances Control Act, 15 U.S.C.  2601 et seq. and all regulations promulgated thereto."
"Material Adverse Effect means any event, occurrence, change in facts, condition or other change or effect on, the Business, operations, Assets or condition (financial or otherwise) of the Acquired Companies which, is reasonably likely to be, materially adverse to the Business, operations, Assets or condition (financial or otherwise) of the Acquired Companies, taken as a whole, or to the ability to operate the Business immediately after the Closing in the manner operated before Closing. For purposes hereof, an event, occurrence, change in facts, condition or other change or effect which has resulted or is reasonably likely to result in Losses of at least $350,000 shall be deemed to constitute a Material Adverse Effect."
"Predecessor means (a) any Person that has ever merged with or into an Acquired Company, (b) any Person a majority of whose capital stock (or similar outstanding ownership interests) or equity interests has ever been acquired by an Acquired Company, (c) any Person all or substantially all of whose assets has ever been acquired by an Acquired Company and (d) any prior names of an Acquired Company or any Person described in clauses (a) through (c)."
"2.2 The Closings. Subject to the terms and conditions of this Agreement, the closing of the purchase and sale of the First Closing Shares (the First Closing) will take place at the offices of the Buyer, on the date hereof (the First Closing Date) assuming the satisfaction of the conditions set forth in Sections 7 and 8 which can be satisfied prior to closing, or at such other time or on such other date or at such other place as the parties hereto may mutually agree upon in writing (it being understood that the First Closing may be effected by the delivery of documents via e-mail and/or overnight courier). Subject to the terms and conditions of this Agreement, the closing of the purchase and sale of the Second Closing Shares (the Second Closing and together with the First Closing, the Closing) will take place at the offices of the Buyer, within ten (10) business days after the FX Regulatory Approval but in no event shall such date be after the Termination Date assuming the satisfaction of the conditions set forth in Sections 7 and 8 which can be satisfied prior to closing, or at such other time or on such other date or at such other place as the parties hereto may mutually agree upon in writing (it being understood that the First Closing may be effected by the delivery of documents via e-mail and/or overnight courier)."
"(d) no Acquired Company has (i) made any declaration, setting aside or payment of any dividend or other distribution with respect to, or any repurchase, redemption or other acquisition of, any of its capital stock or other equity interests or (ii) entered into, or performed, any transaction with, or for the benefit of, any Seller or any Affiliate of any Seller (other than payments made to officers, directors and employees in the Ordinary Course of Business)."
"3.12.2 The Company or one of its Subsidiaries has good and clear, record and marketable fee simple title in and to each of the Owned Real Properties, free and clear of all Encumbrances other than Permitted Encumbrances or Encumbrances that would not have a Material Adverse Effect. There are no material written or oral subleases, licenses, concessions, occupancy agreements or other contractual obligations granting to any other Person the right of use or occupancy of the Real Property other than as reflected in the Most Recent Balance Sheet."
"3.14 Legal Compliance; Illegal Payments; Permits. Each Acquired Company has complied and is in compliance in all material respects with all Legal Requirements applicable to it or any of its respective assets or properties. No Acquired Company is in breach or violation of, it or default under, and has not at any time during the previous five (5) years been in breach or violation of, or default under: (a) its organizational documents nor, to the Companys Knowledge, is there a basis which could constitute such a breach, violation or default; (b) any Legal Requirement nor, to the Companys Knowledge, is there a basis which could constitute such a breach, violation or default, except for breaches, violation or defaults (i) disclosed on Schedule 3.3 and (ii) which have not had, and are not reasonably likely to have, a Material Adverse Effect. In the conduct of the Business, to the Companys Knowledge, no Acquired Company nor any of its directors, officers, employees or agents, has (a) directly or indirectly, given, or agreed to give, any illegal gift, contribution, payment or similar benefit to any supplier, customer, governmental official or employee or other Person who was, is or may be in a position to help or hinder an Acquired Company (or assist in connection with any actual or proposed transaction) or made, or agreed to make, any illegal contribution, or reimbursed any illegal political gift or contribution made by any other Person, to any candidate for federal, state, local or foreign public office or (b) established or maintained any unrecorded fund or asset or made any false entries on any books or records for any purpose. Each Acquired Company has been duly granted all Permits under all Legal Requirements necessary for either (y) the conduct of the Business, or (z) the lawful occupancy of the Real Property and the present use and operation thereof. The Permits are valid and in full force and effect, (b) no Acquired Company is in breach or violation of, or default under, any such Permit, and, to the Companys Knowledge, no basis exists which, with notice or lapse of time or both, would constitute any such breach, violation nor default, except for breaches or violations that would not have a Material Adverse Effect and (c) the Permits will continue to be valid and in full force and effect, on identical terms following the consummation of the Contemplated Transactions."
3.15.5 The unpaid Taxes of the Acquired Companies did not as of the Most Recent Balance Sheet Date exceed the reserve for Taxes (excluding 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 (rather than in any notes thereto).
"3.16.5 There is no pending or, to the Companys Knowledge, threatened Action relating to a Company Plan, other than routine claims in the Ordinary Course of Business for benefits provided for by the Company Plans. No Company Plan is or, within the last six years, has been the subject of an examination or audit by a Governmental Authority, is the subject of an application or filing under, or is a participant in, a government-sponsored amnesty, voluntary compliance, self-correction or similar program."
"3.17 Environmental Matters. To the Companys Knowledge and except for items that would not reasonably be expected to have a Material Adverse Effect, (a) the Acquired Companies and their Predecessors are, and have been, in compliance with all Environmental Laws, (b) the Acquired Companies have obtained and currently maintain in full force and effect all permits, licenses, authorizations and registrations required by any Environmental Law for their operations, (c) there is no Action relating to or arising under any Environmental Law pending, or, to the Knowledge of the Company, threatened, against any of the Acquired Companies or a Predecessor, and there are no facts, circumstances or conditions that could reasonably be expected to form the basis of any such Action, (c) there has been no release or threatened release of any pollutant, asbestos, lead or lead-based paint, polychlorinated biphenyls (PCBs), petroleum or any fraction thereof, contaminant or toxic or hazardous material or substance (including toxic mold), substance or waste (each a Hazardous Substance) at, on, upon, into or from any site currently or heretofore owned, leased or otherwise used by an Acquired Company, (d) there have been no Hazardous Substances generated, manufactured, handled, transported, used, treated or stored by an Acquired Company that have been disposed of or come to rest at any site that has been included in any published U.S. federal, state or local superfund site list or any other similar list of hazardous or toxic waste sites published by any"
"4.2 Power and Authorization. The execution, delivery and performance by such Seller of this Agreement to which it is a party and the consummation of the Contemplated Transactions are within the power and authority of such Seller and, if applicable, have been duly authorized by all necessary action on the part of such Seller. This Agreement to which such Seller is a party (a) has been duly executed and delivered by such Seller and (b) is a legal, valid and binding obligation of such Seller, enforceable against such Seller in accordance with its terms, except as enforceability may be limited by equitable principles or by bankruptcy, fraudulent conveyance or insolvency laws affecting creditors rights generally. No action by, or in respect of, or filing with, any Governmental Authority is required for, or in connection with, the valid and lawful (a) authorization, execution, delivery and performance by such Seller of this Agreement or (b) the consummation of the Contemplated Transactions by such Seller."
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT) OR THE SECURITIES LAWS OF ANY U.S. STATE, NOR IS ANY SUCH REGISTRATION CONTEMPLATED. THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM."
"4.10 Reliance Upon Representations. Each Seller understands and acknowledges that: (a) the Nukk Securities being issued hereunder have not been registered under the 1933 Act; (b) the representations and warranties contained in Sections 4.6 through 4.11 are being relied upon by Buyer as a basis for exemption of the issuance of the Nukk Securities under the 1933 Act; (c) the offering of the Nukk Securities pursuant to this Agreement will not be registered under the 1933 Act based on a determination that the issuance of securities hereunder is exempt from the registration requirements of the 1933 Act; and (d) no state or federal agency has made any finding or determination as to the fairness of the terms of the sale of the Nukk Securities or any recommendation or endorsement thereof. If any of the representations made by any Seller in connection with the purchase of Nukk Securities is no longer accurate prior to the Closing Date, such Seller will promptly notify Buyer."
"5.2 Power and Authorization. The execution, delivery and performance by the Buyer of this Agreement to which it is a party and the consummation of the Contemplated Transactions are within the power and authority of the Buyer and have been duly authorized by all necessary action on the part of the Buyer. This Agreement to which the Buyer is a party (a) has been duly executed and delivered by the Buyer and (b) is a legal, valid and binding obligation of the Buyer, enforceable against the Buyer in accordance with its terms, except as enforceability may be limited by equitable principles or by bankruptcy, fraudulent conveyance or insolvency laws affecting creditors rights generally"
"5.4 Noncontravention. Neither the execution, delivery and performance by the Buyer of this Agreement 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, in each case, as described in Section 3.3 above, violate any provision of any Legal Requirement applicable to the Buyer; (b) result in a breach or violation of, or default under, any contractual obligation of the Buyer; (c) require any action by (including any authorization, consent or approval) or in respect of (including notice to), any Person under any contractual obligation; or (d) result in a breach or violation of, or default under, the Buyers organizational documents."
"5.8 Capitalization of the Buyer. The entire authorized capital stock of the Buyer consists of (i) 300,000,000 shares of common stock, which the Buyer intends to increase to 900,000,000, of which 214,935,100 shares are issued and outstanding and (ii) 15,000,000 shares of preferred stock, of which no shares are issued and outstanding; provided, however, concurrent with the First Closing and Second Closing the Buyer will issue an aggregate of 200,000 shares of Series A Preferred Stock. All of the outstanding shares of capital stock of the Buyer have been duly authorized, validly issued, and are fully paid and non-assessable. Subject to the truth and"
"6.2 Operation of Business. From the date of this Agreement until the earlier of the Second Closing or the termination of this Agreement pursuant to Section 9, the Company and will cause the Acquired Companies to: (a) conduct the Business only in the Ordinary Course of Business; (b) maintain the value of the Business as a going concern; (c) preserve intact its business organization and relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employees; and (d) consult with the Buyer prior to taking any action or entering into any transaction that may be of strategic importance to an Acquired"
"6.8 Sellers Release. Effective as of the Second Closing, each Seller hereby releases, remises and forever discharges any and all rights and claims that it has had, now has or might now have against the Acquired Companies except for (a) rights and claims arising from or in connection with this Agreement, and (b) rights and claims arising from or in connection with claims asserted against such Seller by third parties for which the Buyer Indemnified Persons are not entitled to indemnification by such Seller pursuant to Section 10.2."
"6.15 Synergies Development Plan. Within 30 days of the First Closing Date, Dimitris Hatzis and one of either Shawn Dilkes or Lubo Kinetti will deliver an analysis report to the Board of the Buyer containing recommendations to create cost savings and synergies among the various divisions. The Board shall implement such recommendations as adopted by the Board as soon as practicable after receipt of such report subject to the Second Closing."
procure a capital raise on behalf of the Buyer on terms to be determined but in no event shall an initial retainer be paid. (b) CMH has entered into a prior investment banking agreement with Bentley Associates L.P. of which the Company is not a party to. The parties agree that the Buyer will pay the fees to Bentley Associates L.P. pursuant to the letter agreement attached hereto as Exhibit B.
"6.22 Further Assurances. From and after the Second Closing Date, upon the request of either the Sellers or the Buyer, each of the parties hereto will do, execute, acknowledge and deliver all such further acts, assurances, deeds, assignments, transfers, conveyances and other instruments and papers as may be reasonably required or appropriate to carry out the Contemplated Transactions in a manner that is in accordance, and consistent, with this Agreement. No Seller will take any action that is designed or intended to have the effect of discouraging any lessor, licensor, supplier, distributor or customer of an Acquired Company or other Person with whom an Acquired Company has a relationship from maintaining the same relationship with the Acquired Company after the Closing as it maintained prior to the Closing. Each Seller will refer all customer inquiries relating to the Business to the Buyer, or an Acquired Company, as appropriate, from and after the Closing."
"10.8 Remedies Cumulative. The rights of each Buyer Indemnified Person and Seller Indemnified Person under this Section 10 are cumulative and each Buyer Indemnified Person and Seller Indemnified Person, as the case may be, will have the right in any particular circumstance, in its sole discretion, to enforce any provision of this Section 10 without regard to the availability of a remedy under any other provision of this Section 10."
"12.1 Notices. All notices, requests, demands, claims and other communications required or permitted to be delivered, given or otherwise provided under this Agreement must be in writing and must be delivered, given or otherwise provided: (a) by hand (in which case, it will be effective upon delivery); (b) by facsimile (in which case, it will be effective upon receipt of confirmation of good transmission by the intended recipient; provided, that such communication is also sent by some other means permitted by this Section 12.1); (c) by overnight delivery by a nationally recognized courier service (in which case, it will be effective on the Business Day after being deposited with such courier service); or (d) by e-mail (in which case it will be effective on the date sent if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient, and followed by a transmission pursuant to another method of delivery permitted by this Section 12.1) in each case, to the address (or facsimile number) listed below:"
"12.4 Entire Agreement. This Agreement, together with t any documents, instruments and certificates explicitly referred to herein, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes any and all prior discussions, negotiations, proposals, undertakings, understandings and agreements, whether written or oral, with respect thereto."
"1.1 Financial Statements. Attached to this Schedule 6.19 are (i) the audited consolidated Statements of Financial Position of FXDD Malta Limited as at December 31, 2015 and December 31, 2014, together with the Statements of Changes in Equity as at December 31, 2015 and December 31, 2014, (ii) Statements of Comprehensive Income for the year ended December 31, 2015 and the year ended December 31, 2014 and (iii) Statements of Cash Flows for the year ended December 31, 2015 and the year ended December 31, 2014 (collectively, the  FXDD Financials)."
"Section2\. Representations and Warranties. As of the Time of Execution and at the Closing Date, the Company and the Subsidiary Guarantors, jointly and severally, represent and warrant to and agree with each of the Initial Purchasers as follows (references in this Section2 to the Offering Memorandum are to (i)the Pricing Disclosure Package in the case of representations and warranties made as of the Time of Execution and (ii)both the Pricing Disclosure Package and the Final Memorandum in the case of representations and warranties made at the Closing Date (as defined in Section3 below) and, in each case, include any documents incorporated by reference therein):"
"(g) Each of the Company and the Subsidiary Guarantors has all requisite corporate, partnership, limited liability company or other organizational power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement. The Registration Rights Agreement has been duly and validly authorized by each of the Company and the Subsidiary Guarantors and, when executed and delivered by each of the Company and the Subsidiary Guarantors (assuming the due authorization, execution and delivery by the Initial Purchasers), will constitute a valid and legally binding agreement of each of the Company and the Subsidiary Guarantors enforceable against each of the Company and the Subsidiary Guarantors in accordance with its terms, except that (A)the enforcement thereof may be subject to the Enforceability Exceptions and (B)any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations."
"(j) None of the Company or the Subsidiaries is (i)in violation of its certificate of incorporation or bylaws (or similar organizational document), (ii)in breach or violation of any statute, judgment, decree, order, rule or regulation applicable to any of them or any of their respective properties or assets, except for any such breach or violation that would not, individually or in the aggregate, have a Material Adverse Effect, or (iii)in breach of or default under (nor has any event occurred that, with notice or passage of time or both, would constitute a default under) or in violation of any of the terms or provisions of any indenture, mortgage, deed of trust, loan agreement, note, lease, license, franchise agreement, permit, certificate, contract or other agreement or instrument to which any of them is a party or to which any of them or their respective properties or assets is subject (collectively, Contracts), except for any such breach, default, violation or event that would not, individually or in the aggregate, have a Material Adverse Effect."
"(n) Each of the Company and the Subsidiaries possesses all licenses, permits, certificates, consents, orders, approvals and other authorizations from, and has made all declarations and filings with, all federal, state, local and other governmental authorities, all self-regulatory organizations and all courts and other tribunals, presently required or necessary to own or lease, as the case may be, and to operate its respective properties and to carry on its respective businesses as now or proposed to be conducted as set forth in the Offering Memorandum (Permits), except where the failure to obtain such Permits would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect; each of the Company and the Subsidiaries has fulfilled and performed all of its obligations with respect to such Permits and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the holder of any such Permit except where such revocation, termination or impairment would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect; and none of the Company or the Subsidiaries has received any written notice of any proceeding relating to the revocation or modification of any such Permit, except as described in the Offering Memorandum and except where such revocation or modification would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect."
"(o) Since the date of the most recent financial statements appearing in the Offering Memorandum, and except as otherwise described in the Offering Memorandum, (i)none of the Company or the Subsidiaries has incurred any liabilities or obligations, direct or contingent, or entered into or agreed to enter into any transactions or contracts (written or oral) not in the ordinary course of business, which liabilities, obligations, transactions or contracts would, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect, (ii)none of the Company or the Subsidiaries has purchased any of its outstanding capital stock, nor declared, paid or otherwise made any dividend or distribution of any kind on its capital stock (other than with respect to any of such Subsidiaries, the purchase of, or dividend or distribution on, capital stock owned by the Company) and (iii)there has not been any material change in the capital stock or any change in the long-term indebtedness of the Company or the Subsidiaries."
"Memorandum, and none of the Company or the Subsidiaries has received any notice of infringement of or conflict with (or knows of any such infringement of or conflict with) asserted rights of others with respect to any patents, trademarks, service marks, trade names, copyrights or know-how that, if such assertion of infringement or conflict were sustained, would have a Material Adverse Effect."
"For purposes of this Agreement, Environmental Laws means the common law and all applicable federal, state and local laws or regulations, codes, orders, decrees, judgments or injunctions issued, promulgated, approved or entered thereunder, relating to pollution or protection of public or employee health and safety or the environment, including, without limitation, laws relating to (i)emissions, discharges, releases or threatened releases of hazardous materials into the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata), (ii)the manufacture, processing, distribution, use, generation, treatment, storage, disposal, transport or handling of hazardous materials, and (iii)underground and aboveground storage tanks and related piping, and emissions, discharges, releases or threatened releases therefrom."
"(x) Each of the Company and the Subsidiaries carries insurance in such amounts and covering such risks as is adequate for the conduct of its business and the value of its properties except where the failure to do so would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect."
"(jj) Except as will be disclosed in the Offering Memorandum, there are no business relationships or related party transactions required to be disclosed therein by Item404 of Regulation S-K of the Commission and each business relationship or related party transaction described therein is in all material respects a fair and accurate description of the relationships and transactions so described."
"(a) Until the later of (i)the completion of the distribution of the Notes by the Initial Purchasers (as determined by the Initial Purchasers) and (ii)the Closing Date, the Company will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute or refer to any written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of an offer to buy the Notes (other than the Pricing Disclosure Package, the Recorded Road Show and the Final Memorandum) or file any report with the Commission under the Exchange Act unless the Initial Purchasers shall previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Initial Purchasers shall have given their consent, which consent shall not be unreasonably withheld. The Company will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and the Final Memorandum that may be necessary or advisable in connection with the resale of the Notes by the Initial Purchasers."
"(m) In connection with Notes offered and sold in an off-shore transaction (as defined in Regulation S) the Company will not authorize the Trustee to register any transfer of such Notes not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Notes in the form of definitive securities."
"caption Capitalization, as of the date stated under the caption; to the knowledge of such counsel, all of the outstanding shares of capital stock or ownership interests of the Company and the Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and were not issued in violation of any preemptive rights or similar rights; to the knowledge of such counsel, all of the outstanding shares of capital stock or ownership interests of the Subsidiaries are owned, directly or indirectly, by the Company, free and clear of all perfected security interests (other than securing indebtedness under the senior credit facility (or its predecessor)) and, to the knowledge of such counsel, free and clear of all other liens, encumbrances, equities and claims or restrictions on transferability (other than those imposed by the Act and the securities or Blue Sky laws of certain jurisdictions) or voting."
"(v) The Notes are in the form contemplated by the Indenture. The Notes have each been duly and validly authorized by the Company and, when duly executed and delivered by the Company and paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the Trustee in accordance with the Indenture), the 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."
"this Section shall be rendered to the Initial Purchasers at the request of the Company and shall so state therein. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon the representations and warranties of the Initial Purchasers and the Company contained in this Agreement, certificates of officers of the Company and any of the Subsidiaries and certificates of public officials."
"(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Cahill Gordon& Reindel LLP, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Cahill Gordon& Reindel LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters."
"On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company."
"(b) Each of the Initial Purchasers represents and warrants (as to itself and its respective Affiliates) with respect to offers and sales of securities by it outside the United States that (i)it, its Affiliates and persons acting on its or their behalf has and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Notes or has in its possession or distributes any Memorandum or any such other material, in all cases at its own expense; (ii)the Notes have not been and will not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Regulation S under the Act or pursuant to an exemption from the registration requirements of the Act; and (iii)it has offered the Notes and will offer and sell the Notes (A)as part of its distribution at any time and (B)otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S and, accordingly, neither it nor any persons acting on its behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Notes, and any such persons have complied and will comply with the offering restrictions requirement of Regulation S."
"(d) In circumstances in which the indemnity agreement provided for in the preceding paragraphs of this Section9 is unavailable to, or insufficient to hold harmless, an indemnified party in respect of any losses, claims, damages or liabilities (or actions in respect thereof), each indemnifying party, in order to provide for just and equitable contribution, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or"
"Section10\. Survival Clause. The respective representations, warranties, agreements, covenants, indemnities and other statements of the Company and the Subsidiary Guarantors, their officers and the Initial Purchasers set forth in this Agreement or made by or on behalf of them pursuant to this Agreement shall remain in full force and effect, regardless of (i)any investigation made by or on behalf of the Company and the Subsidiary Guarantors, any of their officers, directors, employees, affiliates or agents, the Initial Purchasers or any controlling person referred to in Section9 hereof and (ii)delivery of and payment for the Notes. The respective agreements, covenants, indemnities and other statements set forth in Sections6, 9, 10 and 16 hereof shall remain in full force and effect, regardless of any termination or cancellation of this Agreement."
"Section11\. Default of One or More of the Several Initial Purchasers. If, on the Closing Date, any one or more of the several Initial Purchasers shall fail or refuse to purchase Notes that it or they have agreed to purchase hereunder on such date, and the aggregate principal amount of Notes which such defaulting Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase does not exceed 10% of the aggregate principal amount of the Notes to be purchased on such date, the other Initial Purchasers shall be obligated, severally, in the proportions that the principal amount of Notes to be purchased set forth opposite their respective names on Schedule II bears to the aggregate principal amount of Notes set forth opposite the names of all such non-defaulting Initial Purchasers, or in such other proportions as may be specified by the Representative with the consent of the non-defaulting Initial Purchasers, to purchase the Notes which such defaulting Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase on such date. If, on the Closing Date, any one or more of the Initial Purchasers shall fail or refuse to purchase Notes and the principal amount of Notes with respect to which such default occurs exceeds 10% of the principal amount of Notes to be purchased on such date, and arrangements satisfactory to the Representative and the Company for the purchase of such Notes are not made within 48 hours after such default, this Agreement shall terminate without liability of any party to any other party except that the provisions specified in Section10 above shall at all times be effective and shall survive such termination. In any such case either the Representative or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days in order that the required changes, if any, to the Final Memorandum or any other documents or arrangements may be effected. As used in this Agreement, the term Initial Purchaser shall be deemed to include any person substituted for a defaulting Initial Purchaser under this Section11\. Any action taken under this Section11 shall not relieve any defaulting Initial Purchaser from liability in respect of any default of such Initial Purchaser under this Agreement."
"Section12\. Termination. (a)This Agreement may be terminated in the sole discretion of the Initial Purchasers by notice to the Company given prior to the Closing Date in the event that the Company shall have failed, refused or been unable to perform all obligations and satisfy all conditions on its part to be performed or satisfied hereunder at or prior thereto or, if at or prior to the Closing Date,"
"(v) any securities of the Company shall have been downgraded by any nationally recognized statistical rating organization registered under Section15E of the Exchange Act or any such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its ratings of any securities of the Company (other than an announcement with positive implications of a possible upgrading)."
"Section14\. Notices. All communications hereunder shall be in writing and, if sent to the Initial Purchasers, shall be mailed or delivered to Deutsche Bank Securities Inc., 60 Wall Street, New York, New York 10005, Attention: Leveraged Debt Capital Markets, Second Floor (fax: (212)797-4877), with a copy to the attention of the General Counsel, 36th Floor (fax: (212)797-4561), with a copy to Cahill Gordon& Reindel LLP, 80 Pine Street, New York, New York 10005, Attention: John A. Tripodoro; and if sent to the Company, shall be mailed or delivered to the Company at 4646 East Van Buren, Suite 400, Phoenix, Arizona 85008, Attention: ChristopherJ. Miner; with a copy to DLA Piper LLP (US), 2525 East Camelback Road, Suite 1000, Phoenix, Arizona, Attention: Gregory R. Hall."
"D. The Notes will rank: (i) senior to all outstanding and future indebtedness of the Company and its Subsidiaries (as defined below) and (ii) pari passu to any outstanding Senior Secured Convertible Notes issued by the Company on December 30, 2015 (the 2015 Notes) pursuant to that certain Securities Purchase Agreement dated as of December 28, 2015 by and among the Company and the Buyers listed on the signature pages attached thereto (the 2015 SPA), and will be secured, except to the extent permitted by the terms hereof or in the Transaction Documents, by a first priority (or, until the 2015 Notes are paid in full, second priority) perfected security interest (subject to Permitted Liens under and as defined in the Notes) in all of the Collateral (as defined in the Security Documents) of the Company and all direct and indirect Subsidiaries of the Company, formed in the future, as evidenced by a pledge and security agreement, substantially in the form attached hereto as Exhibit C, (as amended or modified from time to time in accordance with its terms, the Security Agreement)."
"(b) Closing.The date and time of the Closing (the Closing Date) shall be 10:00 a.m., New York City time, on the date hereof (or such other date and time as is mutually agreed to by the Company and each Buyer) after notification of satisfaction (or waiver) of the conditions to the Closing set forth in Sections 6 and 7 below, at the offices of Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New York 10022."
"2\. BUYERS REPRESENTATIONS AND WARRANTIES.Each Buyer, severally and not jointly, represents and warrants with respect to only itself as of the date hereof and as of the Closing Date (except for representations and warranties that speak as of a specific date which shall be true and correct as of such specified date) that:"
"(a) No Public Sale or Distribution.Such Buyer is (i) acquiring the Notes and the Warrants and (ii) upon exercise of the Warrants (other than pursuant to a Cashless Exercise (as defined in the Warrants)) will acquire the Warrant Shares issuable upon exercise of the Warrants, for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered or exempted under the 1933 Act; provided, however, that by making the representations herein, such Buyer does not agree 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 registration under the 1933 Act or an available exemption from such registration requirements and in each case in accordance with any applicable state securities laws.Such Buyer is acquiring the Securities hereunder in the ordinary course of its business.Such Buyer does not presently have any agreement or understanding, directly or indirectly, with any Person (as defined below) to distribute any of the Securities.For purposes of this Agreement, Person means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity and any government or any department or agency thereof."
"(d) No Conflicts.The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Notes and the Warrants and reservation for issuance and issuance of the Conversion Shares and the Warrant Shares) will not (i) result in a violation of the Certificate of Incorporation (as defined in Section 3(u)) or Bylaws (as defined in Section (3(u)), any memorandum of association, certificate of incorporation, certificate of formation, bylaws, any certificate of designations or other constituent documents of the Company, any capital stock of the Company or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) in any respect under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company is a party (including, without limitation, the Transaction Documents (as defined in the 2015 SPA), or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including foreign, federal and state securities laws and regulations and the rules and regulations of The NASDAQ Capital Market (the Principal Market) and including all applicable laws of the State of Delaware and any foreign, federal and state laws, rules and regulations) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected."
"(e) Consents.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 (other than approval of the Principal Market, the filing of a Form D and any registration statement with the SEC, the Waiver and other filings as may be required by state securities agencies), 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.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 filings detailed above, will be made timely after the Closing Date in accordance with the requirements of Regulation D in the case of the Form D filing, provided that the Waiver and the approval of the Principal Market shall be obtained on or prior to the Closing Date), and the Company is unaware of any facts or circumstances that might prevent the Company from obtaining or effecting any of the registration, application or filings pursuant to the preceding sentence.Except as set forth in Schedule 3(e), the Company is not in violation of the listing requirements of the Principal Market and has no knowledge of any facts or circumstances that would reasonably lead to delisting or suspension of the Common Stock in the foreseeable future.The issuance by the Company of the Securities shall not have the effect of delisting or suspending the Common Stock from the Principal Market."
"(n) Conduct of Business; Regulatory Permits.The Company is not in violation of any term of or in default under any certificate of designations of any outstanding series of preferred stock of the Company (if any), its Certificate of Incorporation or Bylaws or their organizational charter or memorandum of association or certificate of incorporation or articles of association or bylaws, respectively.The Company is not in violation of any judgment, decree or order or any statute, ordinance, rule or regulation applicable to the Company, and neither the Company nor any of its Subsidiaries, if any, will conduct its business in violation of any of the foregoing, except for possible violations which could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.Except as set forth in Schedule 3(n) and without limiting the generality of the foregoing, the Company is not in violation of any of the rules, regulations or requirements of the Principal Market and has no knowledge of any facts or circumstances that would reasonably lead to delisting or suspension of the Common Stock by the Principal Market in the foreseeable future.The Common Stock has been designated for quotation on the Principal Market since October 9, 2014.Except as set forth in Schedule 3(n), since October 9, 2014, (i) trading in the Common Stock has not been suspended by the SEC or the Principal Market and (ii) the Company has received no communication, written or oral, from the SEC or the Principal Market regarding the suspension or delisting of the Common Stock from the Principal Market.The Company possesses all certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses, 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."
"to any foreign or domestic government official or employee, to any employee or agent of a private entity with which the Company does or seeks to do business (a Private Sector Counterparty) or to foreign or domestic political parties or campaigns from corporate funds, (iii) violated or is in violation of any provision of any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions or any applicable provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.K Bribery Act 2010, or any other similar law of any other jurisdiction in which the Company operates its business, including, in each case, the rules and regulations thereunder, (iv) taken, is currently taking or will take any action in furtherance of an offer, payment, gift or anything else of value, directly or indirectly, to any person while knowing that all or some portion of the money or value will be offered, given or promised to anyone to improperly influence official action, to obtain or retain business or otherwise to secure any improper advantage or (v) otherwise made any bribe, rebate, payoff, influence payment, unlawful kickback or other unlawful payment; the Company and each of its respective subsidiaries has instituted and has maintained, and will continue to maintain, policies and procedures reasonably designed to promote and achieve compliance with the laws referred to in (iii) above and with this representation and warranty; and none of the Company, nor any of its Subsidiaries, if any, or its affiliates will directly or indirectly use the proceeds of the convertible securities or lend, contribute or otherwise make available such proceeds to any subsidiary, affiliate, joint venture partner or other person or entity for the purpose of financing or facilitating any activity that would violate the laws and regulations referred to in (iii) above."
"(w) Absence of Litigation.Except as set forth in Schedule 3(w), there is no action, suit, proceeding, inquiry or investigation before or by the Principal Market, any court, public board, government agency, self-regulatory organization or body pending or, to the knowledge of the Company, threatened against or affecting the Company, the Common Stock or any of the Companys officers or directors, whether of a civil or criminal nature or otherwise, in their capacities as such."
"(ff) Off Balance Sheet Arrangements.There is no transaction, arrangement, or other relationship between the Company and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in its 1934 Act filings and is not so disclosed or that otherwise would be reasonably likely to have a Material Adverse Effect."
"(hh) Transfer Taxes.On the Closing Date, all stamp duties, stock transfer or other taxes (other than income or similar taxes) which are required to be paid in connection with the sale and transfer of the Securities to be sold to each Buyer hereunder will be, or will have been, fully paid or provided for by the Company, and all laws imposing such taxes will be or will have been complied with."
"(ll) Bank Holding Company Act.Neither the Company nor any of its 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 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 anyentity that is subject to the BHCA and to regulation by the Federal Reserve.Neither the Company nor any of its 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."
"(qq) No Disagreements with Accountants and Lawyers.There are no material disagreements of any kind presently existing, or reasonably anticipated by the Company to arise, between the Company and the accountants and lawyers formerly or presently employed by the Company and the Company is current with respect to any fees owed to its accountants and lawyers which could affect the Companys ability to perform any of its obligations under any of the Transaction Documents."
"(h) Pledge of Securities.The Company acknowledges and agrees that the Securities may be pledged by an Investor in connection with a bona fide margin agreement or other loan or financing arrangement that is secured by the Securities.The pledge of Securities shall not be deemed to be a transfer, sale or assignment of the Securities hereunder, and no Investor effecting a pledge of Securities shall be required to provide the Company with any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement or any other Transaction Document, including, without limitation, Section 2(f) hereof; provided that an Investor and its pledgee shall be required to comply with the provisions of Section 2(f) hereof in order to effect a sale, transfer or assignment of Securities to such pledgee.The Company hereby agrees to execute and deliver such documentation as a pledgee of the Securities may reasonably request in connection with a pledge of the Securities to such pledgee by an Investor."
"(i) Disclosure of Transactions and Other Material Information.On or before 8:30 a.m., New York City time, on the first (1st) Business Day after this Agreement has been executed, the Company shall issue a press release reasonably acceptable to the Buyers and file a Current Report on Form 8-K describing the terms of the transactions contemplated by the Transaction Documents in the form required by the 1934 Act and attaching the material Transaction Documents (including, without limitation, this Agreement (and all schedules and exhibits to this Agreement), the form of the Note, the form of the Warrant, the Registration Rights Agreement and the Security Documents as exhibits to such filing (including all attachments), the 8-K Filing). From and after the filing of the 8-K Filing with the SEC, no Buyer shall be in possession of any material, nonpublic information received from the Company, any of its Subsidiaries or any of their respective officers, directors, employees, affiliates or agents, that is not disclosed in the 8-K Filing. In addition, effective upon the filing of the 8-K Filing, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company or any of its respective officers, directors, employees, affiliates or agents, on the one hand, and any of the Buyers or any of their affiliates, on the other hand, shall terminate and be of no force or effect.The Company shall not, and shall cause each of its Subsidiaries, if any, and its and each of their respective officers, directors, employees, affiliates and agents, not to, provide any Buyer with any material, nonpublic information regarding the Company or any of its Subsidiaries from and after the date hereof without the express prior written consent of such Buyer.If a Buyer has, or believes it has, received any such material, nonpublic information regarding the Company or any of its Subsidiaries from the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates, employees or agents, it may provide the Company with written notice thereof.The Company shall, within two (2) Trading Days of receipt of such notice, make public disclosure of such material, nonpublic information.In the event of a breach of the foregoing covenant by the Company, any of its Subsidiaries, or any of its or their respective officers, directors, affiliates, employees and agents, in addition to any other remedy provided herein or in the Transaction Documents, a Buyer shall have the right to make a public disclosure, in the form of a press release, public advertisement or otherwise, of such material, nonpublic information without the prior approval by the Company, its Subsidiaries, or any of its or their respective officers, directors, affiliates, employees or agents.No Buyer shall have any liability to the Company, its Subsidiaries, or any of its or their respective officers, directors, affiliates, employees, stockholders or agents for any such disclosure. To the extent that the Company delivers any material, non-public information to a Buyer without such Buyers consent, the Company hereby covenants and agrees that such Buyer shall not have any duty of confidentiality to the Company, any of its Subsidiaries or any of their respective officers, directors, employees, affiliates or agent with respect to, or a duty to the to the Company, any of its Subsidiaries or any of their respective officers, directors, employees, affiliates or agent or not to trade on the basis of, such material, non-public information. Subject to the foregoing, neither the Company, its Subsidiaries nor any Buyer shall issue any press releases or any other public statements with respect to the transactions contemplated hereby; provided, however, that the Company shall be entitled, without the prior approval of any Buyer, to make any press release or other public disclosure with respect to such transactions (i) in substantial conformity with the 8-K Filing and contemporaneously therewith and (ii) as is required by applicable law and regulations (provided that in the case of clause (i) each Buyer shall be consulted by the Company in connection with any such press release or other public disclosure prior to its"
"(2) To accept an Offer, in whole or in part, such Buyer must deliver a written notice to the Company prior to the end of the third (3rd) Business Day after such Buyers receipt of the Offer Notice (the Offer Period), setting forth the portion of such Buyers Basic Amount that such Buyer elects to purchase and, if such Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Buyer elects to purchase (in either case, the Notice of Acceptance). If the Basic Amounts subscribed for by all Buyers are less than the total of all of the Basic Amounts, then each Buyer who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, that if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the Available Undersubscription Amount), each Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Buyer bears to the total Basic Amounts of all Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent its deems reasonably necessary. Notwithstanding anything to the contrary contained herein, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to the Buyers a new Offer Notice and the Offer Period shall expire on the tenth (10th) Business Day after such Buyers receipt of such new Offer Notice."
"(5) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, the Buyers shall acquire from the Company, and the Company shall issue to the Buyers, the number or amount of Offered Securities specified in the Notices of Acceptance, as reduced pursuant to Section 4(n)(iii)(3) above if the Buyers have so elected, upon the terms and conditions specified in the Offer. The purchase by the Buyers of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and the Buyers of a purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to the Buyers and their respective counsel."
"(7) The Company and the Buyers agree that if any Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the Subsequent Placement Documents) shall include any term or provisions whereby any Buyer shall be required to agree to any restrictions in trading as to any securities of the Company owned by such Buyer prior to such Subsequent Placement, and (y) the Buyers shall be entitled to the same registration rights provided to the other investors in the Subsequent Placement."
"Notice no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by the Buyers, such transaction shall be deemed to have been abandoned and the Buyers shall not be deemed to be in possession of any material, non-public information with respect to the Company. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide each Buyer with another Offer Notice and each Buyer will again have the right of participation set forth in this Section 4(n)(iii). The Company shall not be permitted to deliver more than one such Offer Notice to the Buyers in any 60 day period."
"all of the Securities as described in the Transaction Documents in accordance with applicable law and the rules and regulations of the Principal Market without giving effect to the Exchange Cap provisions set forth in the Notes and without giving effect to the Exercise Floor Price set forth in the Warrants (such affirmative approval being referred to herein as the Stockholder Approval), and the Company shall use its reasonable best efforts to solicit its stockholders approval of such resolutions and to cause the Board of Directors of the Company to recommend to the stockholders that they approve such resolutions. The Company shall be obligated to use its reasonable best efforts to obtain the Stockholder Approval by the Stockholder Meeting Deadline. If, despite the Companys reasonable best efforts the Stockholder Approval is not obtained on or prior to the Stockholder Meeting Deadline, the Company shall cause an additional Stockholder Meeting to be held every three (3) months thereafter until such Stockholder Approval is obtained or the Notes are no longer outstanding."
"(iii) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Documents at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes.Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below.Upon any such notice of resignation, the holders of a majority of the outstanding principal amount of Notes shall appoint a successor Collateral Agent.Upon the acceptance of the appointment as Collateral Agent, such successor Collateral Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations under this Agreement, the Notes and the Security Agreement.After any Collateral Agents resignation hereunder, the provisions of this Section 4(r) shall inure to its benefit.If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as the holders of a majority of the outstanding principal amount of Notes appoints a successor Collateral Agent as provided above."
"(v) Closing Documents.On or prior to fourteen (14) calendar days after the Closing Date, the Company agrees to deliver, or cause to be delivered, to each Buyer and Schulte Roth & Zabel LLP a complete closing set of the executed Transaction Documents, Securities and any other documents required to be delivered to any party pursuant to Section 7 hereof or otherwise."
"(i) The Company and each of its Subsidiaries, if any, shall have duly executed and delivered to such Buyer each of the following documents to which it is a party: (A) each of the Transaction Documents, (B) the Notes (allocated in such principal amounts as such Buyer shall request), being purchased by such Buyer at the Closing pursuant to this Agreement and (C) the related Warrants (allocated in such amounts as such Buyer shall request) being purchased by such Buyer at the Closing pursuant to this Agreement."
"(iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of its Subsidiaries, if any, 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) days of the Closing Date."
"(e) Entire Agreement; Amendments. This Agreement and the other Transaction Documents supersede all other prior oral or written agreements between the Buyers, the Company, their affiliates and Persons acting on their behalf with respect to the matters discussed herein, and this Agreement, the other Transaction Documents and the instruments referenced herein and therein 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 any Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. Provisions of this Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and the holders of Underlying Shares representing on the Closing Date at least fifty-one percent (51%) of the aggregate number of Underlying Shares issued or issuable under the Notes and Warrants issued on the Closing Date and shall include Hudson Bay so long as Hudson Bay and/or any of its affiliates collectively hold at least five percent (5%) of the Underlying Shares, in the aggregate (the Required Holders); provided, that the provisions of Section 4(r) cannot be amended without the additional prior written approval of the Collateral Agent or its successor.Any amendment or waiver effected in accordance with this Section 9(e) shall be binding upon each Buyer and holder of Securities and the Company.No such amendment shall"
"(g) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, including any purchasers of the Notes or the Warrants. The Company shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Required Holders, including by way of a Fundamental Transaction (unless the Company is in compliance with the applicable provisions governing Fundamental Transactions set forth in the Notes and the Warrants). A Buyer may assign some or all of its rights hereunder without the consent of the Company, in which event such assignee shall be deemed to be a Buyer hereunder with respect to such assigned rights."
"(i) Survival.Unless this Agreement is terminated under Section 8, the representations and warranties of the Company and the Buyers contained in Sections2 and 3, and the agreements and covenants set forth in Sections4, 5 and 9 shall survive the Closing. Each Buyer shall be responsible only for its own representations, warranties, agreements and covenants hereunder."
"(ii) Promptly after receipt by an Indemnitee under this Section 9(k) of notice of the commencement of any action or proceeding (including any governmental action or proceeding) involving an Indemnified Liability, such Indemnitee shall, if a claim for indemnification in respect thereof is to be made against any indemnifying party under this Section 9(k), deliver to the indemnifying party a written notice of the commencement thereof, and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume control of the defense thereof with counsel mutually satisfactory to the indemnifying party and the Indemnitee; provided, however, that an Indemnitee shall have the right to retain its own counsel with the fees and expenses of not more than one counsel for such Indemnitee"
| | ---|---|--- ExhibitA |  | Form of Notes Exhibit B |  | Form of Warrants Exhibit C |  | Form of Security Agreement Exhibit D |  | Form of Master Control Account Agreement Exhibit E |  | Form of Irrevocable Transfer Agent Instructions Exhibit F |  | Form of Opinion of Company Counsel Exhibit G |  | Form of Secretarys Certificate Exhibit H |  | Form of Officers Certificate SCHEDULES
"NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED DIRECTLY OR INDIRECTLY, ONLY (A) TO THE COMPANY, (B) IF THE SECURITIES HAVE BEEN REGISTERED IN COMPLIANCE WITH THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, (C) IN COMPLIANCE WITH THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT IN ACCORDANCE WITH RULE 144 OR RULE 144A THEREUNDER, IF AVAILABLE, AND IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS PROVIDED THAT THE HOLDER HAS FURNISHED TO THE COMPANY REASONABLE ASSURANCES, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE LAWS AND REGULATIONS GOVERNING THE OFFER AND SALE OF SECURITIES PROVIDED THAT THE HOLDER HAS FURNISHED TO THE COMPANY AN OPINION OF COUNSEL OF RECOGNIZED STANDING SELECTED BY THE HOLDER, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. 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. THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT (OID). PURSUANT TO TREASURY REGULATION 1.1275-3(b)(1), THE DIRECTOR OF FINANCE OF THE COMPANY WILL, BEGINNING TEN DAYS AFTER THE ISSUANCE DATE OF THIS NOTE, PROMPTLY MAKE AVAILABLE TO THE HOLDER UPON REQUEST THE INFORMATION DESCRIBED IN TREASURY REGULATION 1.1275-3(b)(1)(i). THE DIRECTOR OF FINANCE OF THE COMPANY MAY BE REACHED AT TELEPHONE NUMBER (801 990-1055)."
"(i) Beneficial Ownership.Notwithstanding anything herein to the contrary, the Company shall not effect the conversion of any portion of this Note, and the Holder shall not have the right to convert any portion of this Note, pursuant to the terms and conditions of this Note and any such conversion shall be null and void and treated as if never made, to the extent that after giving effect to such conversion, the Holder together with the other Attribution Parties collectively would beneficially own in excess of [4.99] [9.99]% (the Maximum Percentage) of number of the shares of Common Stock outstanding immediately after giving effect to such conversion.For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by the Holder and the other Attribution Parties shall include the shares of Common Stock held by the Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon conversion of this Note with respect to which the determination of such sentence is being made, but shall exclude the shares of Common Stock which would be issuable upon (i) conversion of the remaining, nonconverted portion of this Note beneficially owned by the Holder or any of the other Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any convertible notes or convertible preferred stock or warrants, including the Warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this Section 3(d)(i).For purposes of this Section 3(d)(i), beneficial ownership shall be calculated in accordance with Section 13(d) of the 1934 Act.For purposes of determining the number of outstanding shares of Common Stock the Holder may acquire upon the conversion of the Note without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (i) the Companys most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (ii) a more recent public announcement by the Company or (iii) any other written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding (the Reported Outstanding Share Number).If the Company receives a Conversion Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Conversion Notice would otherwise cause the Holders beneficial ownership, as determined pursuant to this Section 3(d)(i), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of shares of Common Stock to be purchased pursuant to such Conversion Notice.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 Note, 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 conversion of this Note results in the Holder and the"
"(ii) Principal Market Regulation.The Company shall not be obligated to issue any shares of Common Stock pursuant to the terms of this Note, and the Holder shall not have the right to receive pursuant to the terms of this Note any shares of Common Stock, if the issuance of such shares of Common Stock would exceed that number of shares of Common Stock which the Company may issue in the aggregate pursuant to the terms of the Notes without breaching the Companys obligations under the rules or regulations of the Principal Market (the Exchange Cap), except that such limitation shall not apply in the event that the Company (i) obtains the approval of its stockholders as required by the applicable rules of the Principal Market for issuances of shares of Common Stock in excess of such amount or (ii) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the Company and the Required Holders.Until such approval or written opinion is obtained, no purchaser of the Notes pursuant to the Securities Purchase Agreement (the Purchasers) shall be issued in the aggregate pursuant to the terms of the Notes, shares of Common Stock in an amount greater than the product of the Exchange Cap multiplied by a fraction, the numerator of which is the Principal amount of Notes issued to such Purchaser pursuant to the Securities Purchase Agreement on the Closing Date and the denominator of which is the aggregate principal amount of all Notes issued to all Purchasers pursuant to the Securities Purchase Agreement on the Closing Date (with respect to each Purchaser, the Exchange Cap Allocation).In the event that the Holder shall sell or otherwise transfer any of the Holders Notes, the transferee shall be allocated a pro rata portion of the Holders Exchange Cap Allocation, and the restrictions of the prior sentence shall apply to such"
"transferee with respect to the portion of the Exchange Cap Allocation allocated to such transferee.In the event that any holder of Notes shall convert all of such holders Notes into a number of shares of Common Stock which, in the aggregate, is less than such holders Exchange Cap Allocation, then the difference between such holders Exchange Cap Allocation and the number of shares of Common Stock actually issued to such holder shall be allocated to the respective Exchange Cap Allocations of the remaining holders of Notes on a pro rata basis in proportion to the aggregate principal amount of the Notes then held by each such holder.In the event that the Company is prohibited from issuing any Conversion Shares for which a Conversion Notice has been received as a result of the operation of this Section 3(d)(ii) at any time from and after the earlier of (x) the Stockholder Meeting Deadline and (y) the date on which the Company holds the Stockholder Meeting (as defined in the Securities Purchase Agreement), then unless the Holder elects to void such conversion, the Holder may require the Company to pay to the Holder within three (3) Trading Days of the applicable attempted conversion, cash by wire transfer of immediately available funds, in exchange for cancellation of the applicable portion of the Conversion Amount that is subject to such Conversion Notice, which cash amount for each share of Common Stock that would have been issuable upon such conversion if this Section 3(d)(ii) were not in effect shall be equal to the highest trading price of the Common Stock in effect at any time during the period beginning on the applicable Conversion Date and ending on the date the Company makes the payment provided for in this sentence."
"(vi) the Company or any of its Subsidiaries, pursuant to or within the meaning of Title 11, U.S. Code, or any similar Federal, foreign or state law for the relief of debtors (collectively, Bankruptcy Law), (A) commences a voluntary case, (B) consents to the entry of an order for relief against it in an involuntary case, (C) consents to the appointment of a receiver, trustee, assignee, liquidator or similar official (a Custodian), (D) makes a general assignment for the benefit of its creditors or (E) admits in writing that it is generally unable to pay its debts as they become due;"
"(x) any breach or failure in any respect to comply with either Sections 8, 17 or 18 of this Note, except, in the case of a breach of a covenant or other term or condition of Sections 8, 17 or 18 of this Note which is curable, only if such breach continues for a period of at least an aggregate of two (2) Trading Days;"
"(xiv) any Security Document, Master Control Account Agreement or any other Security Document, after delivery thereof pursuant hereto, shall for any reason fail or cease to create a valid and perfected and, except to the extent permitted by the terms hereof or thereof, first priority (or, until the 2015 Notes are paid in full, second priority) Lien (as defined in Section 17(b)) in favor of the Collateral Agent for the benefit of the holders of the Notes on any Collateral (as defined in the Security Documents) or for the benefit of the Holder on any Master Control Account Collateral (as defined in Section18(b)(iii)), as applicable, purported to be covered thereby;"
"(a) Adjustment of Conversion Price upon Issuance of Common Stock.If and whenever on or after the Subscription Date, the Company issues or sells, or in accordance with this Section 7(a) 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 Section7(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 6(a) and (z) adjusting the Conversion Price pursuant to Section7(b)), for a consideration per share (the New Issuance Price) less than a price (the Applicable Price) equal to the Conversion 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 Conversion Price then in effect shall be reduced to an amount equal to the New Issuance Price. For purposes of determining the adjusted Conversion Price under this Section7(a), the following shall be applicable:"
"(i) Issuance of Options.If the Company in any manner grants or sells, or the Company publicly announces the issuance or sale of, any Options and the lowest price per share for which one share of Common Stock is issuable upon the exercise of any such Option or upon conversion or exchange or exercise of any Convertible Securities issuable upon exercise of any such Option is less than the Applicable Price, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the granting or sale of such Option for such price per share. For purposes of this Section 7(a)(i), the lowest price per share for which one share of Common Stock is issuable upon the exercise of any such Options or upon conversion or exchange or exercise of any Convertible Securities issuable upon exercise of such Option 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 granting or sale of the Option, upon exercise of the Option and upon conversion or exchange or exercise of any Convertible Security issuable upon exercise of such Option less any consideration paid or payable by the Company with respect to such one share of Common Stock upon the granting or sale of such Option, upon exercise of such Option and upon conversion exercise or exchange of any Convertible Security issuable upon exercise of such Option.No further adjustment of the Conversion Price shall be made upon the actual issuance of such shares of Common Stock or of such Convertible Securities upon the exercise of such Options or upon the actual issuance of such shares of Common Stock upon conversion or exchange or exercise of such Convertible Securities."
"(iii) Change in Option Price or Rate of Conversion.If the purchase price provided for in any Options, the additional consideration, if any, payable upon the issue, conversion, exchange or exercise of any Convertible Securities, or the rate at which any Convertible Securities are convertible into or exchangeable or exercisable for shares of Common Stock increases or decreases at any time, the Conversion Price in effect at the time of such increase or decrease shall be adjusted to the Conversion Price which would have been in effect at such time had such Options or Convertible Securities provided for such increased or decreased purchase price, additional consideration or increased or decreased conversion rate, as the case may be, at the time initially granted, issued or sold.For purposes of this Section 7(a)(iii), if the terms of any Option or Convertible Security that was outstanding as of the Subscription Date are increased or decreased in the manner described in the immediately preceding sentence, then such Option or Convertible Security and the shares of Common Stock deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have been issued as of the date of such increase or decrease.No adjustment pursuant to this Section 7(a) shall be made if such adjustment would result in an increase of the Conversion Price then in effect."
"Event of Default Conversion Price on the applicable Conversion Notice.The Company shall be required to honor such Event of Default Conversions by delivering shares of Common Stock on or prior to the applicable Share Delivery Date pursuant to the terms and conditions set forth in Section 3(c), but based on a Conversion Price equal to the Event of Default Conversion Price.In the event that the Holder elects to convert pursuant to this Section 7(e), the Principal amount of the Notes so converted shall be deducted from the final Installment Amounts to be paid hereunder on the final Installment Date, unless the Holder otherwise indicates and allocates among any Installment Dates hereunder in the applicable Conversion Notice(s).If the Company receives a notice from any holder of Notes seeking conversion pursuant to this Section 7(e), the Company will promptly notify all other holders of Notes in writing that a holder of Notes is seeking such conversion and setting forth the Event of Default Conversion Amount, the Event of Default Conversion Date and the Event of Default Conversion Price."
"(including, without limitation, such failure constituting an Event of Default described in Section 4(a)(iv)).Notwithstanding anything to the contrary in this Section 8(b), but subject to the limitations set forth in Section 3(d), until the Company credits the Holders account with DTC, or if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, issues and delivers to the Holder a certificate for, the shares of Common Stock representing the Company Conversion Amount to the Holder, the Company Conversion Amount may be converted by the Holder into Common Stock pursuant to Section 3.In the event that the Holder elects to convert the Company Conversion Amount prior to the applicable Installment Date as set forth in the immediately preceding sentence, the Company Conversion Amount so converted 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 Conversion Notice.Notwithstanding anything herein to the contrary, if, with respect to any Installment Date, the number of Pre- Installment Conversion Shares delivered to the Holder exceeds the number of Post-Installment Conversion Shares with respect to such Installment Date, then the number of shares of Common Stock equal to such excess (the Excess Share Amount) shall constitute a credit, at the option of the Holder, against the number of shares of Common Stock to be issued to the Holder either (x) in any conversion of this Note pursuant to Section 3(c)(i) as selected by the Holder or (y) on the last Installment Date hereunder.If on the Maturity Date there remains an Excess Share Amount that has not so been credited to the Holder, the Holder shall on or prior to the date that is thirty (30) days following the Maturity Date either return to the Company a number of shares of Common Stock equal to the applicable Excess Share Amount or pay the Company a cash amount equal to the product of (I) such Excess Share Amount and (II) the Company Conversion Price in effect on the Maturity Date."
"Redemption Notice), the Company shall immediately, but no later than one (1) Business Day of its receipt thereof, forward to the Holder by facsimile or electronic mail a copy of such notice.If the Company receives a Redemption Notice and one or more Other Redemption Notices, during the seven (7) Business Day period beginning on and including the date which is three (3) Business Days prior to the Companys receipt of the Holders Redemption Notice and ending on and including the date which is three (3) Business Days after the Companys receipt of the Holders Redemption Notice and the Company is unable to redeem all Principal, Interest and other amounts designated in such Redemption Notice and such Other Redemption Notices received during such seven (7) Business Day period, then the Company shall redeem a pro rata amount from the Holder and each holder of the Other Notes (including the Holder) based on the Principal amount of this Note and the Other Notes submitted for redemption pursuant to such Redemption Notice and such Other Redemption Notices received by the Company during such seven (7) Business Day period."
"generally in connection with, such Subsequent Placement.The Company shall take any and all actions necessary, advisable or reasonably requested by the Holder to ensure that the Holder is entitled and permitted, at the Holders election, to participate as an investor in any Subsequent Placement as contemplated in this paragraph.In the event that the Holder exercises this right, the Company shall take all actions necessary, advisable or reasonably requested by the Holder to cause (a) such exchange to be promptly (but in no event later than the scheduled closing date for such Subsequent Placement) consummated in favor of the Holder upon the same terms available to other investors in connection with such Subsequent Placement, and (b) the Holder to promptly (but in no event later than the scheduled closing date of such Subsequent Placement) be issued such securities offered in connection with such Subsequent Placement as if the Holder had invested an amount equal to the Exchange Amount in cash in such Subsequent Placement.Following any such exchange pursuant to this paragraph, this Note shall remain outstanding in accordance with its terms as to all amounts payable hereunder that have not been exchanged for securities in connection with such Subsequent Placement."
"(a) Transfer.If this Note is to be transferred, the Holder shall surrender this Note to the Company, whereupon the Company will forthwith issue and deliver upon the order of the Holder a new Note (in accordance with Section 21(d) and subject to Section 3(c)(iii)), registered as the Holder may request, representing the outstanding Principal being transferred by the Holder and, if less than the entire outstanding Principal is being transferred, a new Note (in accordance with Section 21(d)) to the Holder representing the outstanding Principal not being transferred.The Holder and any assignee, by acceptance of this Note, acknowledge and agree that, by reason of the provisions of Section 3(c)(iii) following conversion or redemption of any portion of this Note, the outstanding Principal represented by this Note may be less than the Principal stated on the face of this Note."
"(32) DISCLOSURE. Upon receipt or delivery by the Company of any notice in accordance with the terms of this Note, unless the Company has in good faith determined that the matters relating to such notice do not constitute material, nonpublic information relating to the Company or its Subsidiaries, the Company shall within one (1) Business Day after any such receipt or delivery publicly disclose such material, nonpublic information on a Current Report on Form 8-K or otherwise.In the event that the Company believes that a notice contains material, nonpublic information relating to the Company or its Subsidiaries, the Company so shall indicate to such Holder contemporaneously with delivery of such notice, and in the absence of any such indication, the Holder shall be allowed to presume that all matters relating to such notice do not constitute material, nonpublic information relating to the Company or its Subsidiaries."
"(l) Change of Control means any Fundamental Transaction other than (i) any reorganization, recapitalization or reclassification of the 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 respect, 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"
"satisfaction of the Equity Conditions, not to be eligible for sale pursuant to Rule 144 without any volume limitation by the Holder (including, without limitation, by virtue of an existing or expected Public Information Failure) and any applicable state securities laws; (viii) during the Equity Conditions Measuring Period, the Company otherwise shall have been in compliance with and shall not have breached any provision, covenant, representation or warranty of any Transaction Document; (ix) the Holder shall not be in possession of any material, nonpublic information received from the Company, any Subsidiary or its respective agent or Affiliates; (x) the shares of Common Stock issuable upon conversion of the Conversion Amount that is subject to the 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 satisfaction of the Equity Conditions are duly authorized and listed and eligible for trading without restriction on an Eligible Market; (xi) the daily dollar trading volume of the Common Stock as reported by Bloomberg for each Trading Day during the Equity Conditions Measuring Period shall be at least $800,000; (xii) on each Trading Day during the Equity Conditions Measuring Period, the Weighted Average Price of the Common Stock equals or exceeds $1.30 (as adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction occurring after the Subscription Date); and (xiii) if the event requiring the satisfaction of the Equity Conditions is a Control Account Release, 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 equal to, or greater than, the quotient obtained by dividing (A) 165.5% of the applicable Control Account Release Amount of this Note, by (B) the Conversion Floor Price."
"(ww) Installment Balance Floor Conversion Shares means, for any Installment Date, a number of shares of Common Stock equal to (i) the Post-Installment Floor Conversion Shares for such date minus (ii) the amount of any Pre- Installment Floor Conversion Shares that would have been delivered in respect of the applicable Installment Date; provided, that in the event that the amount of Pre-Installment Floor Conversion Shares exceeds the Post-Installment Floor Conversion Shares for such date (such excess, the Installment Floor Conversion Shares Excess), the Installment Balance Floor Conversion Shares shall equal zero (0) for such date."
"(ddd) Parent Entity of a Person means an entity that, directly or indirectly, controls the applicable Person, including such entity whose common capital stock or equivalent equity security is quoted or listed on an Eligible Market (or, if so elected by the Required Holders, any other market, exchange or quotation system), or, if there is more than one such Person or such entity, the Person or such entity designated by the Required Holders or in the absence of such designation, such Person or entity with the largest public market capitalization as of the date of consummation of the Fundamental Transaction."
"(eee) Permitted Indebtedness means (i) Indebtedness evidenced by this Note and the Other Notes, (ii) trade payables incurred in the ordinary course of business consistent with past practice, (iii) unsecured Indebtedness incurred by the Company that is made expressly subordinate in right of payment to the Indebtedness evidenced by this Note, as reflected in a written agreement acceptable to the Required Holders and approved by the Required Holders in writing, and which Indebtedness does not provide at any time for (a) the payment, prepayment, repayment, repurchase or defeasance, directly or indirectly, of any principal or premium, if any, thereon until ninety-one (91) days after the Maturity Date or later and (b) total interest and fees at a rate in excess of 10.00% per annum, (iv) Indebtedness secured by Permitted Liens described in clauses (iv) of the definition of Permitted Liens, (v) Permitted Indebtedness set forth on Schedule 3(v)(i) of the Securities Purchase Agreement as in effect on the Subscription Date and (vi) the 2015 Notes."
"The Company hereby acknowledges this Conversion Notice and hereby directs American Stock Transfer & Trust Company to issue the above indicated number of shares of Common Stock in accordance with the Transfer Agent Instructions dated June, 2016 from the Company and acknowledged and agreed to by American Stock Transfer & Trust Company."
"(a) Mechanics of Exercise.Subject to the terms and conditions hereof (including, without limitation, the limitations set forth in Section 1(f)), this Warrant may be exercised by the Holder at any time or times on or after the Initial Exercisability Date, in whole or in part, by (i)delivery of a written notice, in the form attached hereto as Exhibit A (the Exercise Notice), of the Holders election to exercise this Warrant and (ii)(A) payment to the Company of an amount equal to the applicable Exercise Price multiplied by the number of Warrant Shares as to which this Warrant is being exercised (the Aggregate Exercise Price) in cash by wire transfer of immediately available funds or (B) if the provisions of Section 1(d) are applicable, by notifying the Company that this Warrant is being exercised pursuant to a Cashless Exercise (as defined in Section 1(d)). The Holder shall not be required to deliver the original Warrant in order to effect an exercise hereunder.Execution and delivery of the Exercise Notice with respect to less than all of the Warrant Shares shall have the same effect as cancellation of the original Warrant and issuance of a new Warrant evidencing the right to purchase the remaining number of Warrant Shares.On or before the second (2nd) Trading Day following the date on which the Company has received the Exercise Notice, the Company shall transmit by facsimile an acknowledgment of confirmation of receipt of the Exercise Notice to the Holder and the Companys transfer agent (the Transfer Agent).On or before the third (3rd) Trading Day following the date on which the Company has received the Exercise Notice, so long as the Holder delivers the Aggregate Exercise Price (or notice of a Cashless Exercise) on or prior to the second (2nd) Trading Day following the date on which the Company has received the Exercise Notice (the Share Delivery Date) (provided that if the Aggregate Exercise Price has not been delivered by such date, the Share Delivery Date shall be one (1) Trading Day after the Aggregate Exercise Price (or notice of a Cashless Exercise) is delivered), the Company shall (X) provided that the Transfer Agent is participating in The Depository Trust Company (DTC) Fast Automated Securities Transfer Program and the Warrant Shares are subject to an effective resale"
"or conversion of the Primary Security in accordance with Section 2(a)(i) or 2(a)(ii) above and (z) the lowest VWAP of the Common Stock on any Trading Day during the three (3) Trading Day period immediately following the public announcement of such Dilutive Issuance (for the avoidance of doubt, if such public announcement is released prior to the opening of the Principal Market on a Trading Day, such Trading Day shall be the first Trading Day in such three (3) Trading Day period).If any shares of Common Stock, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration other than cash received therefor will be deemed to be the net amount received by the Company therefor.If any shares of Common Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received by the Company will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration received by the Company will be the Closing Sale Price of such publicly traded securities on the date of receipt of such publicly traded securities.If any shares of Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible Securities, as the case may be.The fair value of any consideration other than cash or publicly traded securities will be determined jointly by the Company and the Required Holders.If such parties are unable to reach agreement within ten (10) days after the occurrence of an event requiring valuation (the Valuation Event), the fair value of such consideration will be determined within five (5) Business Days after the tenth (10th) day following the Valuation Event by an independent, reputable appraiser jointly selected by the Company and the Required Holders.The determination of such appraiser shall be final and binding upon all parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Company.Notwithstanding anything to the contrary contained in this Section 2(a), if the New Issuance Price calculated pursuant to this Section 2(a) would result in a price less than $0.0001, the New Issuance Price shall be deemed to be $0.0001."
"(v) Record Date.If the Company takes a record of the holders of shares of Common Stock for the purpose of entitling them (A)to receive a dividend or other distribution payable in shares of Common Stock, Options or in Convertible Securities or (B)to subscribe for or purchase shares of Common Stock, Options or Convertible Securities, then such record date will be deemed to be the date of the issue or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be."
"(vi) No Readjustments. For the avoidance of doubt, in the event the Exercise Price has been adjusted pursuant to this Section 2(a) and the Dilutive Issuance that triggered such adjustment does not occur, is not consummated, is unwound or is cancelled after the facts for any reason whatsoever, in no event shall the Exercise Price be readjusted to the Exercise Price that would have been in effect if such Dilutive Issuance had not occurred or been consummated."
"(f) Maximum Eligibility Number.For the avoidance of doubt, all of the Warrant Share Number of Common Stock, whether or not the Warrant is exercisable in full at the time of such adjustment by virtue of the Maximum Eligibility Number limitation or otherwise, shall be exercisable at the Exercise Price in effect at the time of exercise as adjusted on or prior to such date pursuant to this Section 2."
"(b) Lost, Stolen or Mutilated Warrant.Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant, and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary form and, in the case of mutilation, upon surrender and cancellation of this Warrant, the Company shall execute and deliver to the Holder a new Warrant (in accordance with Section 7(d)) representing the right to purchase the Warrant Shares then underlying this Warrant."
"(c) Exchangeable for Multiple Warrants.This Warrant is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company, for a new Warrant or Warrants (in accordance with Section 7(d)) representing in the aggregate the right to purchase the number of Warrant Shares then underlying this Warrant, and each such new Warrant will represent the right to purchase such portion of such Warrant Shares as is designated by the Holder at the time of such surrender; provided, however, that no SPA Warrants for fractional Warrant Shares shall be given."
"(x) Parent Entity of a Person means an entity that, directly or indirectly, controls the applicable Person, including such entity whose common capital or equivalent equity security is quoted or listed on an Eligible Market (or, if so elected by the Required Holders, any other market, exchange or quotation system), or, if there is more than one such Person or such entity, the Person or such entity designated by the Required Holders or in the absence of such designation, such Person or entity with the largest public market capitalization as of the date of consummation of the Fundamental Transaction."
"(cc) Required Holders means the holders of the SPA Warrants representing on the Closing Date at least fifty-one percent (51%) of the aggregate number of SPA Warrants issued on the Closing Date and shall include the Lead Investor so long as the Lead Investor and/or any of its Affiliates collectively hold at least five percent (5%) of the SPA Warrants, in the aggregate."
"(hh) 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."
"(a) Reference is hereby made to the Securities Purchase Agreement and the Notes for a statement of the terms thereof. All terms used in this Agreement and the recitals hereto which are defined in the Securities Purchase Agreement, the Notes or in Articles 8 or 9 of the Uniform Commercial Code (the Code) as in effect from time to time in the State of New York, and which are not otherwise defined herein shall have the same meanings herein as set forth therein; provided that terms used herein which are defined in the Code as in effect in the State of New York on the date hereof shall continue to have the same meaning notwithstanding any replacement or amendment of such statute except as the Collateral Agent may otherwise determine."
"Patents means all domestic and foreign letters patent, design patents, utility patents, industrial designs, inventions, trade secrets, ideas, concepts, methods, techniques, processes, proprietary information, technology, know-how, formulae, rights of publicity and other general intangibles of like nature, of any Grantor, now existing or hereafter acquired (including, without limitation, all domestic and foreign letters patent, design patents, utility patents, industrial designs, inventions, trade secrets, ideas, concepts, methods, techniques, processes, proprietary information, technology, know-how and formulae described in Schedule II hereto), all applications, registrations and recordings thereof (including, without limitation, applications, registrations and recordings in the United States Patent and Trademark Office, or in any similar office or agency of the United States or any other country or any political subdivision thereof), and all reissues, divisions, continuations, continuations in part and extensions or renewals thereof."
"(f) Such Grantor owns and controls, or otherwise possesses adequate rights to use, all Trademarks, Patents and Copyrights, which are the only trademarks, patents, copyrights, inventions, trade secrets, proprietary information and technology, know-how, formulae, rights of publicity necessary to conduct its business in substantially the same manner as conducted as of the date hereof. Schedule II hereto sets forth a true and complete list of all registered copyrights, issued patents, Trademarks (including, without limitation, any Internet domain names and the registrar of each such Internet domain name), and Licenses annually owned or used by such Grantor as of the date hereof.To the best knowledge of each Grantor, all such Intellectual Property of such Grantor is subsisting and in full force and effect, has not been adjudged invalid or unenforceable, is valid and enforceable and has not been abandoned in whole or in part.Except as set forth in Schedule II, no such Intellectual Property is the subject of any licensing or franchising agreement.Such Grantor has no knowledge of any conflict with the rights of others to any Intellectual Property and, to the best knowledge of such Grantor, such Grantor is not now infringing or in conflict with any such rights of others in any material respect, and to the best knowledge of such Grantor, no other Person is now infringing or in conflict in any material respect with any such properties, assets and rights owned or used by such Grantor.Such Grantor has not received any notice that it is violating or has violated the trademarks, patents, copyrights, inventions, trade secrets, proprietary information and technology, know-how, formulae, rights of publicity or other intellectual property rights of any third party."
"(h) The exercise by the Collateral Agent of any of its rights and remedies hereunder will not contravene any law or any contractual restriction binding on or otherwise 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."
"(l) As of the date hereof, there are no Grantors other than the Company. Each Grantor that may become a party to this Agreement in the future pursuant to Section 5(m) hereof (other than the Company) will be at the time it enters into this Agreement a direct or indirect wholly-owned Subsidiary of the Company."
"(ii) Reimbursement under any liability insurance maintained by a Grantor pursuant to this Section 5(e) may be paid directly to the Person who shall have incurred liability covered by such insurance.In the case of any loss involving damage to Equipment or Inventory at any time after the occurrence or during the continuance of an Event of Default, any proceeds of insurance maintained by a Grantor pursuant to this Section 5(e) shall be paid to the Collateral Agent (except as to which paragraph (iii) of this Section 5(e) is not applicable), such Grantor will make or cause to be made the necessary repairs to or replacements of such Equipment or Inventory, and any proceeds of insurance maintained by such Grantor pursuant to this Section 5(e) shall be paid by the Collateral Agent to such Grantor as reimbursement for the costs of such repairs or replacements."
"(v) Each Grantor will exercise promptly and diligently each and every right which it may have under each material License (other than any right of termination) and will duly perform and observe in all respects all of its obligations under each material License and will take all action reasonably necessary to maintain such Licenses in full force and effect. No Grantor will, without the prior written consent of the Collateral Agent, cancel, terminate, amend or otherwise modify in any respect, or waive any provision of, any material License referred to in Schedule II hereto."
"obligation to use or to maintain any Intellectual Property (A)that relates solely to any product or work, that has been, or is in the process of being, discontinued, abandoned or terminated, (B) that is being replaced with Intellectual Property substantially similar to the Intellectual Property that may be abandoned or otherwise become invalid, so long as the failure to use or maintain such Intellectual Property does not materially adversely affect the validity of such replacement Intellectual Property and so long as such replacement Intellectual Property is subject to the Lien created by this Agreement or (C) that is substantially the same as another Intellectual Property that is in full force, so long the failure to use or maintain such Intellectual Property does not materially adversely affect the validity of such replacement Intellectual Property and so long as such other Intellectual Property is subject to the Lien and security interest created by this Agreement.Each Grantor will cause to be taken all necessary steps in any proceeding before the United States Patent and Trademark Office and the United States Copyright Office or any similar office or agency in any other country or political subdivision thereof to maintain each registration of the Intellectual Property (other than the Intellectual Property described in the proviso to the immediately preceding sentence), including, without limitation, filing of renewals, affidavits of use, affidavits of incontestability and opposition, interference and cancellation proceedings and payment of maintenance fees, filing fees, taxes or other governmental fees in the ordinary course of business.If any Intellectual Property (other than Intellectual Property described in the proviso to the first sentence of subsection (i) of this clause (h)) is infringed, misappropriated, diluted or otherwise violated in any material respect by a third party, such Grantor shall (x) upon learning of such infringement, misappropriation, dilution or other violation, promptly notify the Collateral Agent and (y) to the extent such Grantor shall deem appropriate under the circumstances, promptly sue for infringement, misappropriation, dilution or other violation, seek injunctive relief where appropriate and recover any and all damages for such infringement, misappropriation, dilution or other violation, or take such other actions as such Grantor shall deem appropriate under the circumstances to protect such Intellectual Property.Each Grantor shall furnish to the Collateral Agent from time to time upon its request statements and schedules further identifying and describing the Intellectual Property and Licenses and such other reports in connection with the Intellectual Property and Licenses as the Collateral Agent may reasonably request, all in reasonable detail and promptly upon request of the Collateral Agent, following receipt by the Collateral Agent of any such statements, schedules or reports, such Grantor shall modify this Agreement by amending Schedule II hereto, as the case may be, to include any Intellectual Property and License, as the case may be, which becomes part of the Collateral under this Agreement and shall execute and authenticate such documents and do such acts as shall be necessary or, in the judgment of the Collateral Agent, desirable to subject such Intellectual Property and Licenses to the Lien and security interest created by this Agreement.Notwithstanding anything herein to the contrary, upon the occurrence and during the continuance of an Event of Default, such Grantor may not abandon or otherwise permit any Intellectual Property to become invalid without the prior written consent of the Collateral Agent, and if any Intellectual Property is infringed, misappropriated, diluted or otherwise violated in any material respect by a third party, such Grantor will take such action as the Collateral Agent shall deem appropriate under the circumstances to protect such Intellectual Property."
"(m) Future Subsidiaries.If any Grantor shall hereafter create or acquire any Subsidiary, simultaneously with the creation of acquisition of such Subsidiary, such Grantor shall cause such Subsidiary to become a party to this Agreement as an additional Grantor hereunder and to become a party to the Guaranty as an additional Guarantor thereunder, and to duly execute and/or deliver such opinions of counsel and other documents, each in form and substance acceptable to the Collateral Agent, as the Collateral Agent shall reasonably request with respect thereto."
"(a) Each Grantor hereby (i)authorizes the Collateral Agent to file one or more Uniform Commercial Code financing or continuation statements, and amendments thereto, relating to the Collateral (including, without limitation, financing statements describing the Collateral as all assets or all personal property or words of similar effect) and (ii)ratifies such authorization to the extent that the Collateral Agent has filed any such financing or continuation statements, or amendments thereto, prior to the date hereof. A photocopy or other reproduction of this Agreement or any financing statement covering the Collateral or any part thereof shall be sufficient as a financing statement where permitted by law."
"(d) If a Grantor fails to perform any agreement contained herein, following prior written notice thereof by the Collateral Agent to such Grantor and the failure by such Grantor to correct such breach within the time set forth on such notice, the Collateral Agent may itself perform, or cause performance of, such agreement or obligation, in the name of such Grantor or the Collateral Agent, and the expenses of the Collateral Agent incurred in connection therewith shall be payable by such Grantor pursuant to Section 8 hereof and shall be secured by the Collateral."
"(a) No amendment of any provision of this Agreement shall be effective unless it is in writing and signed by each Grantor and the Collateral Agent, and no waiver of any provision of this Agreement, and no consent to any departure by a Grantor therefrom, shall be effective unless it is 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."
"(h) THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT THE VALIDITY AND PERFECTION OR THE PERFECTION AND THE EFFECT OF PERFECTION OR NON-PERFECTION OF THE SECURITY INTEREST CREATED HEREBY, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAW OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK."
"Holder U.S. 7,282,328 |  | Helicase dependent amplification of nucleic acid |  | BioHelix | | U.S. 7,662,594 |  | Helicase dependent amplification of nucleic acid (continuation) |  | BioHelix | | U.S. 7829284 |  | Helicase dependent amplification of nucleic acid (continuation) |  | BioHelix | | EP1539979 |  | Helicase dependent amplification of nucleic acid |  | BioHelix | | PCT/US2006/000406 |  | Identification of RNA targets using helicase |  | BioHelix | | 12/507,142 |  | Rnase-H-based assays utilizing modified RNA monomers (bp method) |  | IDT | | 13/839,334 |  | Rnase-H-based assays utilizing modified RNA monomers (RNA targets) |  | IDT | | EP2279263 |  | Rnase-H-based assays utilizing modified RNA monomers |  | IDT | | 13/429,077 |  | Rnase-H-based assays utilizing modified RNA monomers (Hot start language) |  | IDT "
"NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Assignor does hereby pledge, convey, sell, assign, transfer and set over unto the Assignee and grants to the Assignee for the benefit of the Holders a continuing security interest in the Collateral to secure the prompt payment, performance and for the benefit of the Holders observance of the Obligations."
"(a) Subject to the terms of Section 3(b) below, UBSFS will comply with entitlement orders originated by Creditor concerning the Account without further consent by Client. Unless ACCOUNT TRADING PERMITTED? at the top of this Agreement is marked NO, and except as otherwise provided in Section4, UBSFS also will comply with entitlement orders concerning the Account originated by Client or Clients authorized representatives, including any investment adviser, which may be an affiliate of UBSFS, that Client has authorized to exercise investment discretion with respect to the Account (Investment Adviser), until such time as Creditor delivers a written notice to UBSFS that Creditor is thereby exercising exclusive control over the Account (a Notice of Exclusive Control.). Subject to the terms of Section 3(b) below, after UBSFS receives a Notice of Exclusive Control and has had reasonable opportunity to comply with it, UBSFS will cease complying with entitlement orders or other directions concerning the Account that are originated by Client or its representatives until such time as UBSFS receives a written notice from Creditor rescinding the Notice of Exclusive Control."
"Section 5.Statements and Confirmations.As elected above by Creditor, UBSFS will either send copies of all periodic account statements and confirmations concerning the Account to Creditor at the address set forth below, or enable Interested Party access to the Account via Online Services (OLS), where all periodic account statements and confirmations concerning the Account will be made available to Creditor.If Creditor elects to view the Account information through OLS, a UBSFS OLS account and a valid e-mail address must be provided to enroll and Creditor is responsible for notifying UBSFS promptly when its email address changes.If Interested Party access is elected, Creditor is solely responsible for monitoring the Account activity via OLS.UBSFS does not provide notification to Interested Parties when statements and confirmations are available on OLS."
"duty to investigate or make any determination as to whether Creditor is entitled or has been authorized to give any Notice of Exclusive Control, as to whether Creditor has provided a copy thereof to any Investment Adviser, or as to whether a default exists under any agreement between Client and Creditor, and UBSFS shall comply with a Notice of Exclusive Control even if it believes that no such default exists.This Agreement does not create any obligation or duty of UBSFS other than those expressly set forth herein."
"Section 8.Client Account Agreement.Client and Creditor hereto acknowledge and agree that this Agreement supplements the UBSFS account agreement(s) applicable to the Account and, if applicable, any related account management agreements between Client and either UBSFS or its affiliates, and except as otherwise expressly provided herein, does not supersede or abridge any rights or obligations of any of the parties to such agreements.In the event of a conflict between the express terms of this Agreement and any other agreement between UBSFS and the Client, the terms of this Agreement will prevail.Regardless of any provision in any such agreement relating to the law governing the Account, the parties hereto agree that the establishment and maintenance of the Account, and all interests, duties and obligations with respect thereto, shall be governed by the law of the State of New York.Client and Creditor agree and acknowledge that any Instruction given by Creditor in connection with the Account is deemed to be an Instruction of Client, and is, therefore, subject to any and all terms and conditions of the UBSFS account agreement(s) applicable to the Account and, if applicable, any related account management agreements between Client and either UBSFS or its affiliates, except to the extent otherwise provided herein."
"Section 11.Severability.If any term or provision set forth in this Agreement shall be invalid or unenforceable, the remainder of this Agreement, or the application of such terms or provisions to persons or circumstances, other than those to which it is held invalid or unenforceable, shall be construed in all respects as if such invalid or unenforceable term or provision were omitted."
"Section 12.Successors.The terms of this Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective corporate successors or heirs and personal representatives.UBSFS need not request proof that a purported successor of Creditor is in fact a successor of Creditor, however, if requested by UBSFS, Creditor or its successor will provide reasonable proof thereof, in form and substance acceptable to UBSFS and UBSFS may in its sole and absolute discretion refuse to honor an Instruction from a purported successor of Creditor pending receipt of such proof by UBSFS."
"Section 13.Notices.Any notice, request or other communication required or permitted to be given under this Agreement shall be in writing and deemed to have been properly given when delivered in person, or when sent by telecopy or other electronic means and electronic confirmation of error free receipt is received or upon receipt of notice sent by certified or registered United States mail, return receipt requested, postage prepaid, addressed to that party: in the case of Creditor, at the address set forth below; in the case of Client, at the address reflected in UBSFS records with respect to the Account or, if such notice is given by Creditor, at the address specified to Creditor by Client; in the case of any Investment Adviser, at the address set forth for such Investment Adviser below; and in the case of UBSFS, at 1000 Harbor Boulevard, 8th Floor, Weehawken, New Jersey 07086, Attn: Williams Lea  Subpoenas or SH-Legal-Account_Restrictions@ubs.com.Any party may change its address for notices in the manner set forth above."
"You acknowledge and agree that so long as you have previously received (a) written confirmation from the Companys legal counsel that either (i) a registration statement covering resales of the Conversion Shares and the Warrant Shares naming a Holder submitting a notice of transfer, a Conversion Notice or an Exercise Notice as a selling stockholder thereunder (the Registration Statement) has been declared effective by the Securities and Exchange Commission (the SEC) under the Securities Act of 1933, as amended (the 1933 Act) and, if requested, a copy of the Registration Statement, or (ii) sales of the Conversion Shares and/or the Warrant Shares may be made in conformity with Rule 144 under the 1933 Act (Rule 144) and"
"THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS.THESE SECURITIES MAY BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED DIRECTLY OR INDIRECTLY, ONLY (A) TO THE COMPANY, (B) IF THE SECURITIES HAVE BEEN REGISTERED IN COMPLIANCE WITH THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, (C) IN COMPLIANCE WITH THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT IN ACCORDANCE WITH RULE 144 OR RULE 144A THEREUNDER, IF AVAILABLE, AND IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS PROVIDED THAT THE HOLDER HAS FURNISHED TO THE COMPANY REASONABLE ASSURANCES, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE LAWS AND REGULATIONS GOVERNING THE OFFER AND SALE OF SECURITIES PROVIDED THAT THE HOLDER HAS FURNISHED TO THE COMPANY AN OPINION OF COUNSEL SELECTED BY THE HOLDER, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.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."
"Reference is made to the Senior Secured Convertible Note (the Note) issued to the undersigned by Great Basin Scientific, Inc., a Delaware corporation (the Company).Capitalized terms not otherwise defined herein shall have the meaning ascribed to such term in the Note. In accordance with and pursuant to the Note, the undersigned hereby elects to convert the Conversion Amount (as defined in the Note) of the Note indicated below into shares of Common Stock par value $0.0001 per share (the Common Stock) of the Company, as of the date specified below."
"The Company hereby acknowledges this Conversion Notice and hereby directs American Stock Transfer & Trust Company to issue the above indicated number of shares of Common Stock in accordance with the Transfer Agent Instructions dated June, 2016 from the Company and acknowledged and agreed to by American Stock Transfer & Trust Company."
"12\. The Company is not, and after giving effect to the offering and sale of the Notes and the Warrants and the application of the proceeds thereof as described in the Transaction Documents will not be required to register as an investment company as defined in the Investment Company Act of 1940, as amended."
15\. Each Note creates a valid security interest in the Master Control Account Collateral (as defined in such Note) in favor of the Buyer to whom such Note is issued to secure the repayment of the amounts outstanding under such Note to the extent of the rights of the Company in such Master Control Account Collateral. The Control Agreement to which such Buyer is a party establishes control (within the meaning of Section 9-104 of the UCC-ACCOUNT JURISDICTION with respect to the Deposit Accounts and Sections 9-106 and 8-106 of the UCC- ACCOUNT JURISDICTION with respect to the Securities Accounts) sufficient to perfect such Buyers security interest in the Accounts covered by such Control Agreement.
"On June 23, 2016, the Company received a letter from the Nasdaq Hearings Panel granting the Companys request for continued listing on the Nasdaq despite continued non-compliance with Listing Rule 5550(b)(2), which requires a market value of listed securities of $35 million, subject to the satisfaction of certain conditions in the plan of compliance submitted to the Hearings Panel, including entering into this transaction, and regaining compliance with Rule 5550(b)(2) by no later than October 10, 2016."
"During 2013, the Company issued a promissory note to Bourne Spafford Charitable Trust U/A/D May15, 1995, an entity controlled by Mr.David Spafford, a Director reflecting an obligation of $200,000. This note had an 8% interest rate. The principal and $7,540 of accrued interest converted into shares of Series C Preferred Stock at $4.92 per share in 2013."
"In February 2014, we issued a convertible promissory note with an 8% interest rate and warrants topurchase 12shares of common stock to Mr.Ashton. The consideration paid by Mr.Ashton for the note and warrants was $200,000. The maturity date for the promissory note was February26, 2015, or upon or a qualified equity financing of at least $5 million. This financing was for general working capital purposes. The principal balance of this note, along with accrued interest of $6,751 converted to 41,350 SeriesD Preferred Stock Units at $5.00 per unit in July 2014."
" | from (y) 16.6% of the sum of the number of shares of Common Stock actually outstanding on December31, 2016, plus the number of shares of Common Stock deemed to be outstanding pursuant to all outstanding options or convertible securities of the Company. ---|--- On December 31, 2016, the number of shares issuable upon exercise of the Subordination warrants will be increased to equal the difference, if positive, obtained by subtracting (x) the shares of Common Stock issuable under the Warrants on the date of issuance from (y) 0.5% of the sum of the number of shares of Common Stock actually outstanding on December31, 2016, plus the number of shares of Common Stock deemed to be outstanding pursuant to all outstanding options or convertible securities of the Company."
"Our Series B Warrants have an exercise price adjustment provision that in the event the Company sells shares of any additional stock, subject to certain exceptions, at a price per share less than the current market price and the exercise price that would be in effect at the time of such issuance (it being understood and agreed that if the holder of the common stock or common stock equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of common stock at an effective price per share that is less than the exercise price, such issuance shall be deemed to have occurred for less than the exercise price on such date of the dilutive issuance at such effective price), then in each case, the exercise price (abbreviated as EP0 below) shall be reduced (and only reduced) based on the following formula:"
X = the number of shares of Common Stock equal to the quotient of (A) the aggregate price payable in the Dilutive Issuance (i) in respect of such shares of Common Stock issued or sold (in the case of an issuance or sale of Common Stock) or (ii) in respect of the shares of
"Y = (i) the total number of shares of Common Stock issued (in the case of an issuance or sale of Common Stock) or (ii) the total number of shares of Common Stock issuable upon exercise, conversion or exchange of Common Stock Equivalents issued or sold (in the case of an issuance or sale of Common Stock Equivalents) in the Dilutive Issuance."
"Under the convertible notes, the holders will have certain rights upon an Event of Default (as defined in the convertible notes). Such rights include (i) the remaining principal amount of the convertible notes bearing interest at a rate of 10% per annum, (ii) during the Event of Default the conversion price being adjusted to the lowest of (a) the conversion price then in effect, (b) 75% of the lowest weighted average price of the common stock during the 30 consecutive trading day period ending on the trading day immediately preceding the date of the event of default"
"conversion and (c) 75% of the weighted average price of the common stock on the date of the applicable event of default conversion, (iii) the holder having the right to demand redemption of all or a portion of the convertible notes and (iv) the triggering rights under the security interest granted to the holders, resulting in the foreclosure of their security interests and liquidation of some or all of our assets."
"The convertible notes provide that prior to the release of the remaining cash purchase price of the convertible notes, we are required to meet certain equity conditions including, but not limited to: (i) effective registration statements registering the shares of common stock issuable upon conversion of the convertible notes or such shares being eligible for sale pursuant to Rule 144 without any volume limitation by the holder; (ii) the common stock issuable upon conversion of the convertible notes is designated for quotation on the Nasdaq Capital Market or any other eligible market and shall not have been suspended from trading on such exchange or market; (iii) we have previously delivered all shares of common stock pursuant to the terms of the convertible notes and upon exercise of the Series D warrants to the holders on a timely basis; (iv) we have not failed to timely make any payments within five (5) business days of when such payment is due pursuant to any of the transaction documents; (v) 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; (vi) the holder of the convertible notes shall not be in possession of any material, nonpublic information received from the Company, its respective agent or affiliates; (vii) the shares of common stock issuable upon conversion are duly authorized and listed and eligible for trading without restriction on an eligible market; (viii) the daily dollar trading volume of the common stock as reported by Bloomberg for each trading day during the applicable measuring period shall be at least $22,750,000; and (ix) on each trading day during the applicable measuring period, the weighted average price of the common stock equals or exceeds $17.50."
"BioHelix. We hold non-exclusive licenses to key technologies from BioHelix related to isothermal amplification of nucleic acid targets, utilizing helicase-dependent amplification, or HDA. The term of this license agreement extends until the expiration of all the patents associated with the licensed patent rights, or until such time as we elect to terminate with 30 days notice. This license is limited to the fields of human diagnostic testing utilizing our solid chip surface detection and contains diligence and U.S. preference provisions. To date, these technologies have resulted in three issued U.S. patents, one issued European patent and one pending international patent family. In addition, these technologies may include related technologies that BioHelix may develop in the future. The BioHelix technologies are the basis of our nucleic acid amplification approach. In May of 2013, Quidel Corporation, a competitor of ours, purchased BioHelix. We pay a royalty fee for the licensing of this technology based on a percentage of our Net Sales of assays using these technologies (as defined in the license agreement)."
"IDT. In August 2010, we entered into a license agreement with Integrated DNA Technologies, or IDT, related to the use of blocked primers in combination with HDA. The term of this license agreement extends until the expiration of all the patents associated with the licensed patent rights, or until such time as we elect to terminate with 90 days notice. The license is exclusive to the fields of amplification utilizing HDA and detection of diagnostic targets in human in-vitro diagnostic testing, but is non-exclusive to all oncology and human papilloma virus targets or markers. These technologies have resulted in four pending U.S. patent applications and one issued European patent. We pay a royalty fee for the license of this technology based on a percentage of our Net Sales of products using these technologies (as defined in the license agreement)."
" |  |  | Continue to engage independent consultants to assist accounting staff with processing transactions and preparing financial statements, especially related to complex transactions. ---|---|---|--- We believe that these additional resources will enable us to broaden the scope and quality of our controls relating to the oversight and review of financial statements and our application of relevant accounting policies. Furthermore, we plan to implement and improve systems to automate certain financial reporting processes and to improve information accuracy."
"Based on the evaluation of our disclosure controls and procedures as of March 31, 2016, the we concluded that, as a result of material weaknesses in our internal control over financial reporting as disclosed in our annual report on Form 10-K for the year ended December 31, 2015, our disclosure controls and procedures were not effective as of March 31, 2016."
"1.4 Increase in Authorized Shares. The Purchaser is aware that the Company filed a Preliminary Information Statement on Schedule 14C for the purposes of notifying the Company's shareholders that the Company's majority shareholders have approved an amendment to the Company's Articles of Incorporation to increase the number of shares of common stock and preferred shares authorized for issuance (the ""Article Amendment""). The Company expects to file the Article Amendment approximately (but not less than) twenty (20) days after the Definitive Information Statement on Schedule 14C is mailed to the Company's shareholders. The Company expects to file the Article Amendment prior to June 30, 2016 and the Purchaser and the Company agree that the filing of the Amended Article is a post-Closing condition of this Agreement."
"1.6 Break-Up Fees. If for any reason the Purchaser chooses not to exercise the right to invest the additional $2,500,000 as set forth in Section 1.1, the Purchaser shall pay to the Company a break-up fee equal to 5% of the remaining balance of the Maximum Purchase Price, within five (5) business days after the Investment Period. If the Purchaser does not deliver the break-up fee within the required time period, the Conversion Price of the Note shall be increased by 8%."
"(j) Indebtedness. Other than as set forth on Schedule 2.1(j), the Financial Statements set forth all outstanding secured and unsecured Indebtedness of the Company, or for which the Company has commitments as of the date of the Financial Statements or any subsequent period that would require disclosure. For the purposes of this Agreement, ""Indebtedness"" shall mean (i) any liabilities for borrowed money or amounts owed (other than trade accounts payable incurred in the ordinary course of business); (ii) all guaranties, endorsements and other contingent obligations in respect of Indebtedness of others, whether or not the same should be reflected in the Company's consolidated balance sheet (or the Note thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (iii) the present value of any lease payments due under leases required to be capitalized in accordance with GAAP. The Company is not in default with respect to any Indebtedness which, individually or in the aggregate, would have a Material Adverse Effect."
"(u) Transactions with Affiliates. Except as set forth in the Financial Statements or in the Commission Documents or on Schedule 2.1(u), there are no loans, leases, agreements, contracts, royalty agreements, management contracts or arrangements or other continuing transactions between the Company and any officer, employee, consultant or director of the Company, or any person owning more than 10% capital stock of the Company or any member of the immediate family of such officer, employee, consultant, director or stockholder or any corporation or other entity controlled by such officer, employee, consultant, director or stockholder, or a member of the immediate family of such officer, employee, consultant, director or stockholder."
"(z) Public Utility Holding Company Act; Investment Company Act and U.S. Real Property Holding Corporation Status. The Company is not a ""holding company"" or a ""public utility company"" as such terms are defined in the Public Utility Holding Company Act of 1935, as amended. The Company is not, and as a result of and immediately upon the Closing will not be, an ""investment company"" or a company ""controlled"" by an ""investment company,"" within the meaning of the Investment Company Act of 1940, as amended. The Company is not and has never been a U.S. real property holding corporation within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended."
"(bb) Disclosure. All disclosure provided to the Purchaser regarding the Company, their respective businesses and the transactions contemplated hereby, furnished by or on behalf of the Company (including the Company's representations and warranties set forth in this Agreement and the disclosure set forth in any diligence report or business plan provided by the Company or any person acting on the Company's behalf) are true and correct in all material aspects and do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading."
"(ff) OFAC. To the knowledge of the Company no director, officer, agent, employee, affiliate or person acting on behalf of any of the Company is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (""OFAC""); and the Company will not directly or indirectly use the proceeds of the sale of the Note, or lend, contribute towards any sales or operations in Cuba, Iran, Syria, Sudan, Myanmar or any other country sanctioned by OFAC or for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC."
(jj) Acknowledgment Regarding Purchaser's Purchase of Note. The Company acknowledges and agrees that the Purchaser is acting solely in the capacity of an arm's 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 Purchaser's purchase of the Note. The Company further represents to the Purchaser that the Company's 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.
"(c) No Conflicts. The execution, delivery and performance of this Agreement and each of the other Transaction Documents to which such Purchaser is a party and the consummation by such Purchaser of the transactions contemplated hereby and thereby or relating hereto do not and will not: (i) result in a violation of such Purchaser's charter documents, bylaws, operating agreement, partnership agreement or other organizational documents; or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of any agreement, indenture or instrument or obligation to which such Purchaser is a party or by which its properties or assets are bound, or result in a violation of any law, rule, or regulation, or any order, judgment or decree of any court or governmental agency applicable to such Purchaser or its properties (except for such conflicts, defaults and violations as would not, individually or in the aggregate, have a material adverse effect on such Purchaser). Such Purchaser is not required to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Agreement or any other Transaction Document to which such Purchaser is a party or to purchase the Note in accordance with the terms hereof, provided, that for purposes of the representation made in this sentence, such Purchaser is assuming and relying upon the accuracy of the relevant representations and agreements of the Company herein."
"Section 3.8 Reservation of Shares. So long as the Note remains outstanding, the Company shall take all actions necessary to at all times have authorized, and reserved for the purpose of issuance, no less than one hundred percent (100%) of the aggregate number of shares of Common Stock needed to provide for the complete issuance of the Shares underlying such outstanding Note."
"Section 3.10 Reporting Status. So long as the Purchaser beneficially owns any of the Note, the Company shall timely file all reports required to be filed with the Commission pursuant to the Exchange Act, and the Company shall not terminate its status as an issuer required to file reports under the Exchange Act even if the Exchange Act or the rules and regulations thereunder would permit such termination."
"For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A ""Permitted Financing"" shall mean: (i) securities issued pursuant to a bona fide acquisition of another business entity or business segment of any such entity by the Company pursuant to a merger, purchase of substantially all the assets or any type of reorganization (each an ""Acquisition"") provided that (A) the Company will own more than fifty percent (50%) of the voting power of such business entity or business segment of such entity and (B) such Acquisition is approved by the Company's Board of Directors and provided further that such securities are not issued for the purpose of raising capital and in which holders of such securities or debt are not at any time granted registration rights; (ii) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the date of this Agreement or issued pursuant to this Agreement (so long as the terms governing the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Purchaser); (iii) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so long as such issuances are not for the primary purpose of raising capital; (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock, in each case, at no less than the then-applicable fair market value, pursuant to equity incentive plans that are adopted by the Company's Board of Directors (including, without limitation, the BioCorRx Inc. 2016 Equity Incentive Plan which the Company plans to adopt prior to June 30, 2016, a form of which plan is attached hereto as Exhibit E) within thirty (30) days attached hereto; (v) securities issued to any placement agent and its respective designees for the transactions contemplated by this Agreement; (vi) securities issued at no less than the then-applicable fair market value to advisors or consultants (including, without limitation, financial advisors and investor relations firms) in connection with any engagement letter or consulting agreement, provided that any such issuance is approved by the Company's Board of Directors; (vii) securities issued to financial institutions or lessors in connection with reasonable commercial credit arrangements, equipment financings or similar transactions, provided that any such issue is approved by the Company's Board of Directors; (viii) securities issued to vendors or customers or to other persons in similar commercial situations as the Company, provided that any such issue is approved by the Company's Board of Directors; (ix) securities issued in connection with any recapitalization of the Company; or (x) securities issued pursuant to an underwritten public offering of the Common Stock. Notwithstanding anything contained herein to the contrary, although the Company shall be entitled to complete a Permitted Financing, all Permitted Financings shall rank junior to the Note."
"(a) Accuracy of the Purchaser's Representations and Warranties. The representations and warranties of the Purchaser in this Agreement and each of the other Transaction Documents to which such Purchaser is a party shall be true and correct in all material respects as of the date when made and as of each Closing Date as though made at that time, except for representations and warranties that are expressly made as of a particular date, which shall be true and correct in all material respects as of such date."
"i.this Agreement duly executed by such Purchaser, which includes completed Exhibit B-1; by executing this Agreement, such Purchaser will be deemed to have executed each of the Transaction Documents and will be bound by each of their terms even if the Purchaser does not physically sign such other Transaction Documents; and"
"Section 4.2 Conditions Precedent to the Obligation of the Purchaser's to Purchase the Note. The obligation hereunder of the Purchaser to acquire and pay for the Note is subject to the satisfaction or waiver, at or before each Closing, of each of the conditions set forth below. These conditions are for the Purchaser's sole benefit and may be waived by such Purchaser at any time in its sole discretion."
"(a) Accuracy of the Company's Representations and Warranties. Each of the representations and warranties of the Company in this Agreement and the other Transaction Documents that are qualified by materiality or by reference to any Material Adverse Effect shall be true and correct in all respects, and all other representations and warranties shall be true and correct in all material respects, as of the date when made and as of each Closing Date as though made at that time, except for representations and warranties that are expressly made as of a particular date, which shall be true and correct in all respects as of such date."
"Section 6.2 Indemnification Procedure. Any party entitled to indemnification under this Article 6 (an ""Indemnified Party"") will give written notice to the indemnifying party of any matters giving rise to a claim for indemnification; provided, that the failure of any party entitled to indemnification hereunder to give notice as provided herein shall not relieve the indemnifying party of its obligations under this Article 6 except to the extent that the indemnifying party is actually prejudiced by such failure to give notice. In case any action, proceeding or claim is brought against an Indemnified Party in respect of which indemnification is sought hereunder, the indemnifying party shall be entitled to participate in and, unless in the reasonable judgment of the Indemnified Party a conflict of interest between it and the indemnifying party may exist with respect of such action, proceeding or claim, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party. In the event that the indemnifying party advises an Indemnified Party that it will contest such a claim for indemnification hereunder, or fails, within thirty (30) days of receipt of any indemnification notice to notify, in writing, such person of its election to defend, settle or compromise, at its sole cost and expense, any action, proceeding or claim (or discontinues its defense at any time after it commences such defense), then the Indemnified Party may, at its option, defend, settle or otherwise compromise or pay such action or claim. In any event, unless and until the indemnifying party elects in writing to assume and does so assume the defense of any such claim, proceeding or action, the Indemnified Party's costs and expenses arising out of the defense, settlement or compromise of any such action, claim or proceeding shall be losses subject to indemnification hereunder. The Indemnified Party shall cooperate fully with the indemnifying party in connection with any negotiation or defense of any such action or claim by the indemnifying party and shall furnish to the indemnifying party all information reasonably available to the Indemnified Party which relates to such action or claim. The indemnifying party shall keep the Indemnified Party fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. If the indemnifying party elects to defend any such action or claim, then the Indemnified Party shall be entitled to participate in such defense with counsel of its choice at its sole cost and expense. The indemnifying party shall not be liable for any settlement of any action, claim or proceeding effected without its prior written consent, provided, however, that the indemnifying party shall be liable for any settlement if the indemnifying party is advised of the settlement but fails to respond to the settlement within thirty (30) days of receipt of such notification. Notwithstanding anything in this Article 6 to the contrary, the indemnifying party shall not, without the Indemnified Party's prior written consent, settle or compromise any claim or consent to entry of any judgment in respect thereof which imposes any future obligation on the Indemnified Party or which does not include, as an unconditional term thereof, the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim. The indemnity agreements contained herein shall be in addition to (a) any cause of action or similar rights of the Indemnified Party against the indemnifying party or others, and (b) any liabilities the indemnifying party may be subject to pursuant to the law."
"(b) by the Company or the Purchaser (as to itself but no other Purchaser) upon written notice to the other, if the Initial Closing shall not have taken place by 5:00 p.m. Eastern time on June 17, 2016, unless extended to a later date by the mutual consent of the Company and the Purchaser; provided, that the right to terminate this Agreement under this Section 7.17(b) 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 Initial Closing to occur on or before such time."
"We have acted as special outside counsel to BioCorRX Inc., a corporation incorporated under the laws of the State of Nevada (the ""Company""), in connection with that certain Note Purchase Agreement, dated as of June 10, 2016 (the ""Agreement""), by and between the Company and BICX Holding Company LLC, a limited liability company organized and existing under the laws of the State of Delaware (the ""Purchaser""). This opinion is being provided to you pursuant to Section 4.2(n) of the Agreement."
"(g) that any consents, licenses, permits, approvals, exemptions or authorizations required of or by, and any required registrations or filings with, any governmental authority or regulatory body of any jurisdiction other than the State of New Jersey in connection with the transactions contemplated by the Transaction Documents have been duly obtained or made;"
"Whenever a statement herein is qualified by ""to our knowledge"" or similar phrase, it means that, during the course of our representation of the Company for the purposes of this opinion letter, (1) no information that would give those lawyers who participated in the preparation of the letter or who have been actively involved in negotiating or preparing the Transaction Documents (collectively, the ""Opinion Letter Participants"") current knowledge of the inaccuracy of such statement has come to their attention; (2) we have not undertaken any independent investigation or inquiry to determine the accuracy of such statement; (3) any limited investigation or inquiry otherwise undertaken by the Opinion Letter Participants during the preparation of this opinion letter should not be regarded as such an investigation or inquiry; and (4) no inference as to our knowledge of any matters bearing on the accuracy of any such statement should be drawn from the fact of our representation of the Company. We also call to your attention to the fact that we are not general counsel to the Company and we are not familiar audit of the Company or their files."
We express no opinion with respect to the effect or application of any other laws. Special rulings of authorities administering any of such laws or opinions of other counsel have not been sought or obtained by us in connection with rendering the opinions expressed herein. We express no opinions as to the application of the laws of usury to the Transaction Documents.
"2\. The Company has the corporate power and authority to enter into, execute, deliver and perform the transactions contemplated in and its obligations under the Transaction Documents to which it is a party. The execution, delivery and performance by the Company of the Transaction Documents to which Company is a party has been duly authorized by all requisite corporate action and the Transaction Documents have been duly executed and delivered by Company."
"4\. The execution and delivery by the Company of the Transaction Documents to which Company is a party and the performance by the Company of its obligations thereunder: (i) do not conflict with or result in a violation of the Articles of Incorporation or Bylaws of the Company; and (ii) to our knowledge, do not conflict with or violate any order, writ, judgment or decree to which the Company is a party or is subject."
"6\. The Company has the power and authority to own its property and to carry on its business as it is now being conducted, and, based solely upon representations made to us by management of the Company, the Company is duly qualified to do business in all jurisdictions in which the nature of its activities makes such qualification necessary, except where the failure to so qualify could not reasonably be expected to have a material adverse effect."
"""Award Agreement"" means a written agreement, contract, certificate or other instrument or document evidencing the terms and conditions of an individual Award granted under the Plan which may, in the discretion of the Company, be transmitted electronically to any Participant. Each Award Agreement shall be subject to the terms and conditions of the Plan."
"""Change in Control"" means the occurrence of any one or more of the following events (1) any Person becomes a ""beneficial owner"" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than 25% of the voting power of the then outstanding securities of the Company; provided that a Change of Control shall not be deemed to occur as a result of a transaction in which the Company becomes a subsidiary of another corporation and in which the stockholders of the Company, immediately prior to the transaction, will beneficially own, immediately after the transaction, shares entitling such stockholders to more than 50% of all votes to which all stockholders of the parent corporation would be entitled in the election of directors; (2) the consummation of (A) a merger or consolidation of the Company with another corporation where the stockholders of the Company, immediately prior to the merger or consolidation, will not beneficially own, immediately after the merger or consolidation, shares entitling such stockholders to more than 50% of all votes to which all stockholders of the surviving corporation would be entitled in the election of directors, (B) a sale or other disposition of all or substantially all of the assets of the Company, or (C) a liquidation or dissolution of the Company; or (3) Directors are elected such that a majority of the members of the Company's Board shall have been members of the Board for less than two years, unless the election or nomination for election of each new director who was not a director at the beginning of such two-year period was approved by a vote of at least two-thirds of the Directors then still in office who were Directors at the beginning of such period."
"""Disability"" means either (A) a Participant's inability 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 can be expected to last for a continuous period of not less than 12 months, or (B) 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, a Participant's receiving income replacement benefits for a period of not less than three months under an accident and health plan covering the Company's employees. A Participant will be deemed permanently disabled if determined to be totally disabled by the Social Security Administration or if determined to be disabled in accordance with a disability insurance program that applies a definition of disability that complies with the requirements of this paragraph."
"""Employee"" means any person, including an officer or Director, employed by the Company or an Affiliate; provided, that, for purposes of determining eligibility to receive Incentive Stock Options, an Employee shall mean an employee of the Company or a parent or subsidiary corporation within the meaning of Section 424 of the Code. Mere service as a Director or payment of a director's fee by the Company or an Affiliate shall not be sufficient to constitute ""employment"" by the Company or an Affiliate."
"""Grant Date"" means the date on which the Board adopts a resolution, or takes other appropriate action, expressly granting an Award to a Participant that specifies the key terms and conditions of the Award or, if a later date is set forth in such resolution, then such date as is set forth in such resolution."
"B. Exercise Price of an Incentive Stock Option. Subject to the provisions of Section V(B) regarding Ten Percent Shareholders, the Option Exercise Price of each Incentive Stock Option shall be not less than 100% of the Fair Market Value of the Common Stock subject to the Option on the Grant Date. Notwithstanding the foregoing, an Incentive Stock Option may be granted with an Option Exercise Price lower than that set forth in the preceding sentence if such Option is granted pursuant to an assumption or substitution for another option in a manner satisfying the provisions of Section 424(a) of the Code."
"E. Transferability of an Incentive Stock Option. An Incentive Stock Option shall not be transferable except by will or by the laws of descent and distribution and shall be exercisable during the lifetime of the Optionholder only by the Optionholder. Notwithstanding the foregoing, the Optionholder may, by delivering written notice to the Company, in a form satisfactory to the Company, designate a third party who, in the event of the death of the Optionholder, shall thereafter be entitled to exercise the Option."
"K. Incentive Stock Option $100,000 Limitation. To the extent that the aggregate Fair Market Value (determined at the time of grant) of Common Stock with respect to which Incentive Stock Options are exercisable for the first time by any Optionholder during any calendar year (under all plans of the Company and its Affiliates) exceeds $100,000, the Options or portions thereof which exceed such limit (according to the order in which they were granted) shall be treated as Non-qualified Stock Options."
"C. No Employment or Other Service Rights. Nothing in the Plan or any instrument executed or Award granted pursuant thereto shall confer upon any Participant any right to continue to serve the Company or an Affiliate in the capacity in effect at the time the Award was granted or shall affect the right of the Company or an Affiliate to terminate (a) the employment of an Employee with or without notice and with or without Cause or (b) the service of a Director pursuant to the By-laws of the Company or an Affiliate, and any applicable provisions of the corporate law of the state in which the Company or the Affiliate is incorporated, as the case may be."
"E. Withholding Obligations. To the extent provided by the terms of an Award Agreement and subject to the discretion of the Board, the Participant may satisfy any federal, state or local tax withholding obligation relating to the exercise or acquisition of Common Stock under an Award by any of the following means (in addition to the Company's right to withhold from any compensation paid to the Participant by the Company) or by a combination of such means: (a) tendering a cash payment; (b) authorizing the Company to withhold shares of Common Stock from the shares of Common Stock otherwise issuable to the Participant as a result of the exercise or acquisition of Common Stock under the Award, provided, however, that no shares of Common Stock are withheld with a value exceeding the minimum amount of tax required to be withheld by law; or (c) delivering to the Company previously owned and unencumbered shares of Common Stock of the Company."
"A. Unless otherwise provided in an Award Agreement or an employment agreement entered into by the Company and a Participant, in the event of a Change in Control, the Board may, but shall not be obligated to: (1) accelerate, vest or cause the restrictions to lapse with respect to all or any portion of any Award; (2) cancel Awards and cause to be paid to the holders of vested Awards the value of such Awards, if any, as determined by the Board, in its sole discretion, it being understood that in the case of any Option with an Option Exercise Price that equals or exceeds the price paid for a share of Common Stock in connection with the Change in Control, the board may cancel the Option without the payment of consideration therefor; (3) provide for the issuance of substitute Awards or the assumption or replacement of such Awards; or (4) provide written notice to Participants that for a period of at least ten days prior to the Change in Control, such Awards shall be exercisable, to the extent applicable, as to all shares of Common Stock subject thereto and upon the occurrence of the Change in Control, any Awards not so exercised shall terminate and be of no further force and effect."
"L. Severability. If any of the provisions of the Plan or any Award Agreement is held to be invalid, illegal or unenforceable, whether in whole or in part, such provision shall be deemed modified to the extent, but only to the extent, of such invalidity, illegality or unenforceability and the remaining provisions shall not be affected thereby."
"Material Adverse Effect means any event, circumstance, change or occurrence that has had or would reasonably be expected to have, individually or in the aggregate, (i) a material and adverse effect on the operations, results of operations, assets, liabilities, properties, business, or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, or (ii) any adverse impairment to the Companys ability to perform in any material respect on a timely basis its obligations under this Agreement; provided, that in determining whether a Material Adverse Effect has occurred, there shall be excluded any effect to the extent resulting from the following: (A) changes, after the date hereof, in U.S. GAAP or regulatory accounting principles generally applicable to banks, savings associations or their holding companies, (B) changes, after the date hereof, in applicable Laws, rules and regulations or interpretations, applications or implementation thereof by any Governmental Entity, (C) actions or omissions of the Company expressly required by the terms of this Agreement or taken with the prior written consent of Purchaser, (D)changes in the market price or trading volumes of the Common Stock (but not the underlying causes of such changes), (E) changes in general economic conditions affecting banks and bank holding companies generally, (F) changes in global or national political conditions, including the outbreak or escalation of war or acts of terrorism and (G) the public disclosure of this Agreement or the transactions contemplated hereby; except, with respect to clauses (A), (B), (D), (E) and (F), to the extent that the effects of such changes have a materially disproportionate effect on the Company and its Subsidiaries, taken as a whole, relative to other similarly situated banks, savings associations or their holding companies generally."
"(i) Disclosure of Transaction and Other Material Information. The Company shall, on or before 5:30 p.m. of the second (2nd) Business Day after the Closing of the Offering, file a Current Report on Form 8-K describing all the material terms of the transactions contemplated hereby and attaching this Agreement as an exhibit (including all attachments, the 8-K Filing). From and after the 8-K Filing, the Company shall have disclosed all material, nonpublic information delivered to the Purchaser by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents (if any) in connection with the transactions contemplated by this Agreement. The Company shall not, and the Company shall cause each of its Subsidiaries and each of its and their respective officers, directors, employees and agents not to,"
"(a) Organization; Authority.If Purchaser is an entity, it is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization with the requisite corporate, partnership, limited liability company or other 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.If Purchaser is an entity, the execution and delivery of this Agreement and performance by Purchaser of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate or, if Purchaser is not a corporation, such partnership, limited liability company or other applicable like action, on the part of Purchaser.If Purchaser is an entity, this Agreement has been duly executed by Purchaser, and when delivered by Purchaser in accordance with the terms hereof (assuming the due authorization, execution and delivery of this Agreement by the Company), will constitute the valid and legally binding obligation of Purchaser, enforceable against it 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. Purchaser has had no position, office or other material relationship within the past three years with the Company (which, for the avoidance of doubt, excludes ownership of Shares), and is not a member of the Financial Industry Regulatory Authority."
"SECTION 1Sale and Conveyance of Mortgages; Possession of Mortgage File. The Seller does hereby sell, transfer, assign, set over and convey to the Purchaser, without recourse, representation or warranty (except as otherwise specifically set forth herein), subject to the rights of the holders of interests in any related Companion Loan, all of its right, title and interest in and to the Mortgage Loans secured by the Mortgaged Properties identified on Exhibit A to this Agreement (the Mortgage Loan Schedule) including all interest and principal received or receivable on or with respect to the Mortgage Loans after the Cut-Off Date (and, in any event, excluding payments of principal and interest and other amounts due and payable on the Mortgage Loans on or before the Cut-Off Date and excluding any Retained Defeasance Rights and Obligations with respect to the Mortgage Loans). In addition, on the Closing Date, the Seller shall cause to be delivered to the Master Servicer the Initial Interest Deposit Amount"
"with respect to the Mortgage Loan secured by the Mortgaged Property identified on Exhibit A to this Agreement as 46 Geary Street, to be deposited by the Master Servicer into the Collection Account on behalf of the Seller and for the benefit of the Trust Fund, which Initial Interest Deposit Amount shall represent an amount equal to one-months interest accrued with respect to that Mortgage Loan at the related Net Mortgage Rate for the month of May 2016."
"The sale and conveyance of the Mortgage Loans is being conducted on an arms- length basis and upon commercially reasonable terms. As the purchase price for the Mortgage Loans, the Purchaser shall pay, by wire transfer of immediately available funds, to the Seller or at the Sellers direction that sum set forth in the funding schedule executed by the Seller and the Purchaser relating to the sale of the Mortgage Loans contemplated hereby (but subject to certain post-settlement adjustment for expenses incurred by the Underwriters and the Initial Purchasers on behalf of the Depositor and for which the Seller is specifically responsible)."
"(c)it shall take any action reasonably required by the Purchaser, the Certificate Administrator, the Trustee or the Master Servicer in order to assist and facilitate the transfer of the servicing of the Mortgage Loans (other than any Outside Serviced Mortgage Loan) to the Master Servicer, including effectuating the transfer of any letters of credit with respect to any Mortgage Loan to the Master Servicer on behalf of the Trustee for the benefit of Certificateholders and any Serviced Companion Loan Holder. Prior to the date that a letter of credit with respect to any Mortgage Loan is so transferred to the Master Servicer, the Seller will cooperate with the reasonable requests of the Master Servicer or the Special Servicer, as applicable, in connection with effectuating a draw under such letter of credit as required under the terms of the related Loan Documents. Notwithstanding the foregoing, this Section5(c) shall not apply with respect to any Outside Serviced Mortgage Loan;"
"certification by an authorized officer of the Seller, substantially in the form of Exhibit F to this Agreement, that the electronic copy of the Diligence File for each Mortgage Loan uploaded to the Designated Site contains all documents required under the definition of Diligence File and such Diligence Files are organized and categorized in accordance with the electronic file structure reasonably requested by the Depositor;"
"(j)upon the completion of an Asset Review with respect to each Mortgage Loan that is a Delinquent Loan and receipt by the Seller of a written invoice from the Asset Representations Reviewer, the Seller shall pay to the Asset Representations Reviewer within forty-five (45) days after receipt of such written invoice the Asset Representations Reviewer Asset Review Fee with respect to such Delinquent Loan as set forth in Section 11.02(b) of the Pooling and Servicing Agreement, subject to adjustment with respect to the Mortgage Loan secured by the Mortgaged Property identified on Exhibit A to this Agreement as Marriott Savannah Riverfront as set forth in Section 11.02(b) of the Pooling and Servicing Agreement;"
"(iii)The execution and delivery of each Operative Document by the Seller and the performance of its obligations hereunder and thereunder will not conflict with any provision of any law or regulation to which the Seller is subject, or conflict with, result in a breach of, or constitute a default under, any of the terms, conditions or provisions of any of the Sellers organizational documents or any agreement or instrument to which the Seller is a party or by which it is bound, or any order or decree applicable to the Seller, or result in the creation or imposition of any lien on any of the Sellers assets or property, in each case, which would materially and adversely affect the ability of the Seller to carry out the transactions contemplated by the Operative Documents;"
"(vi)No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, each Operative Document or the consummation of the transactions contemplated hereby or thereby, other than those which have been obtained by the Seller and those filings and recordings of Loan Documents and assignments thereof that are contemplated by the Pooling and Servicing Agreement to be completed after the Closing Date; and"
"(i)The Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, with full corporate power and authority to own its assets and conduct its business, is duly qualified as a foreign corporation in good standing in all jurisdictions in which the ownership or lease of its property or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the ability of the Purchaser to perform its obligations hereunder, and the Purchaser has taken all necessary action to authorize the execution, delivery and performance of this Agreement by it, and has duly executed and delivered this Agreement, and has the power and authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby;"
"(ii)Assuming the due authorization, execution and delivery of this Agreement by the Seller, this Agreement will constitute a legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, liquidation or other similar laws 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);"
"(iv)There is no action, suit, proceeding or investigation pending or, to the Purchasers knowledge, threatened against the Purchaser in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity of this Agreement or any action taken in connection with the obligations of the Purchaser contemplated herein, or which would be likely to impair materially the ability of the Purchaser to perform under the terms of this Agreement;"
"(d)Pursuant to the Pooling and Servicing Agreement, if (i) any party thereto (other than the Asset Representations Reviewer) discovers or receives notice alleging that any document constituting a part of a Mortgage File has not been properly executed, is missing, contains information that does not conform in any material respect with the corresponding information set forth in the Mortgage Loan Schedule, or does not appear to be regular on its face (each, a Document Defect), or discovers or receives notice alleging a breach of any representation or warranty of the Seller made pursuant to Section6(c) of this Agreement with respect to any Mortgage Loan (a Breach) or (ii) the Special Servicer or the Purchaser receives a Repurchase Request, then such party is required to give prompt written notice thereof to the Seller."
(1) the debt service coverage ratio for such Other Crossed Loan(s) (excluding the Affected Loan(s)) for the four calendar quarters immediately preceding the repurchase or replacement is not less than the lesser of (A)0.10x below the debt service coverage ratio for the Cross-Collateralized Group (including the Affected Loan(s)) set forth in AnnexA to the Prospectus and (B)the debt service coverage ratio for the Cross-Collateralized Group (including the Affected Loan(s)) for the four preceding calendar quarters preceding the repurchase or replacement;
(3) either (x) the exercise of remedies against the Primary Collateral of any Mortgage Loan in the Cross-Collateralized Group will not impair the ability to exercise remedies against the Primary Collateral of the other Mortgage Loans in the Cross-Collateralized Group or (y) the Loan Documents evidencing and securing the relevant Mortgage Loans have been modified in a manner that complies with this Agreement and the Pooling and Servicing Agreement and that removes any threat of impairment of the ability to exercise remedies against the Primary Collateral of the other Mortgage Loans in the Cross-Collateralized Group as a result of the exercise of remedies against the Primary Collateral of any Mortgage Loan in the Cross-Collateralized Group.
"The Pooling and Servicing Agreement provides that, to the extent necessary and appropriate, the Master Servicer or Special Servicer, as applicable, will execute (pursuant to a limited power of attorney provided by the Trustee who will not be liable for any misuse of any such power of attorney by the Master Servicer or Special Servicer, as applicable, or any of its agents or subcontractors) the modification of the Loan Documents that complies with this Agreement to remove the threat of impairment of the ability of the Seller or the Trust Fund to exercise its remedies with respect to the Primary Collateral securing the Mortgage Loan(s) held by such party resulting from the exercise of remedies by the other such party. All costs and expenses incurred by the Trustee, the Special Servicer and the Master Servicer with respect to any Cross-Collateralized Group pursuant to this paragraph and the first, second and third preceding paragraphs shall be advanced by the Master Servicer as provided for in Section 2.03(a) of the Pooling and Servicing Agreement, and such advances and interest thereon shall be included in the calculation of Purchase Price for the Affected Loan(s) to be repurchased or replaced."
"(f)In connection with any repurchase or substitution of one or more Mortgage Loans pursuant to this Section6, the Pooling and Servicing Agreement shall provide that the Trustee, the Certificate Administrator, the Custodian, the Master Servicer and the Special Servicer shall each tender to the repurchasing entity, upon delivery to each of them of a receipt executed by the repurchasing entity evidencing such repurchase or substitution, all portions of the Mortgage File (including, without limitation, the Servicing File) and other documents and all Escrow Payments and reserve funds pertaining to such Mortgage Loan possessed by it, and each document that constitutes a part of the Mortgage File shall be endorsed or assigned to the extent necessary or appropriate to the repurchasing or substituting entity or its designee in the same manner, but only if the respective documents have been previously assigned or endorsed to the Trustee, and pursuant to appropriate forms of assignment, substantially similar to the manner and forms pursuant to which such documents were previously assigned to the Trustee or as otherwise reasonably requested to effect the retransfer and reconveyance of the Mortgage Loan and the security therefor to the Seller or its designee; provided that such tender by the Trustee and the Custodian shall be conditioned upon its receipt from the Master Servicer of a Request for Release and an Officers Certificate to the effect that the requirements for repurchase or substitution have been satisfied. In the event a Qualified Substitute Mortgage Loan is substituted for a Defective Mortgage Loan by the Seller as contemplated by this Section 6, the Seller shall deliver to the Custodian the related Mortgage File and to the Master Servicer all Escrow Payments and reserve funds pertaining to such Qualified Substitute Mortgage Loan possessed by it and a certification to the effect that such Qualified Substitute Mortgage Loan satisfies all of the"
"(h)Each party hereto agrees to promptly notify the other party of any breach of a representation or warranty contained in Section 6(c) of this Agreement. The Sellers obligation to cure any Material Defect or to repurchase, or substitute for, or make a Loss of Value Payment with respect to, any affected Mortgage Loan pursuant to this Section 6 shall constitute the sole remedy available to the Purchaser in connection with a breach of any of the Sellers representations or warranties contained in Section 6(c) of this Agreement or a Document Defect with respect to any Mortgage Loan."
"(i)The Seller shall promptly notify the Depositor if (i) the Seller receives a Repurchase Communication of a Repurchase Request (other than from the Depositor), (ii) the Seller repurchases or replaces a Mortgage Loan, (iii) the Seller receives a Repurchase Communication of a Repurchase Request Withdrawal (other than from the Depositor) or (iv) the Seller rejects or disputes any Repurchase Request. Each such notice shall be given no later than the tenth (10th) Business Day after (A) with respect to clauses (i) and (iii) of the preceding sentence, receipt of a Repurchase Communication of a Repurchase Request or a Repurchase Request Withdrawal, as applicable, and (B) with respect to clauses (ii) and (iv) of the preceding sentence, the occurrence of the event giving rise to the requirement for such notice, and shall include (1) the identity of the related Mortgage Loan and the person making the Repurchase Request, (2) the date (x) such Repurchase Communication of such Repurchase Request or Repurchase Request Withdrawal was received, (y) the related Mortgage Loan was repurchased or replaced or (z) the Repurchase Request was rejected or disputed, as applicable, and (3) if known, the basis for (x) the Repurchase Request (as asserted in the Repurchase Request) or (y) any rejection or dispute of a Repurchase Request, as applicable."
"The Seller agrees that no Rule 15Ga-1 Notice Provider will be required to provide information in a Rule 15Ga-1 Notice that is protected by the attorney- client privilege or attorney work product doctrines. In addition, the Seller hereby acknowledges that (i)any Rule 15Ga-1 Notice provided pursuant to Section2.03(a) of the Pooling and Servicing Agreement is so provided only to assist the Seller, the Depositor and their respective Affiliates to comply with Rule15Ga-1 under the Exchange Act, Items 1104 and 1121 of Regulation AB and any other requirement of law or regulation and (ii)(A)no action taken by, or inaction of, a Rule 15Ga-1 Notice Provider and (B)no information provided pursuant to Section2.03(a) of the Pooling and Servicing Agreement by a Rule 15Ga-1 Notice Provider shall be deemed to constitute a waiver or defense to the exercise of any legal right the Rule 15Ga-1 Notice Provider may have with respect to this Agreement, including with respect to any Repurchase Request that is the subject of a Rule 15Ga-1 Notice."
"(a)Each of the obligations of the Seller required to be performed by it at or prior to the Closing Date pursuant to the terms of this Agreement shall have been duly performed and complied with and all of the representations and warranties of the Seller under this Agreement shall, subject to any applicable exceptions set forth on Exhibit C to this Agreement, be true and correct in all material respects as of the Closing Date or as of such other date as of which such representation is made under the terms of Exhibit B to this Agreement, and no event shall have occurred as of the Closing Date which would constitute a default on the part of the Seller under this Agreement, and the Purchaser shall have received a certificate to the foregoing effect signed by the Seller substantially in the form of ExhibitD to this Agreement."
"If the Seller elects to exercise its rights under Section 12.14 of the Pooling and Servicing Agreement, then the Seller shall pay the reasonable costs and expenses (if any) of the Depositor, Master Servicer, Special Servicer and Trustee resulting from such parties obligations to cooperate with the Seller under Section 12.14 of the Pooling and Servicing Agreement."
"SECTION 20Exercise of Rights. No failure or delay on the part of any party to exercise any right, power or privilege under this Agreement and no course of dealing between the Seller and the Purchaser shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, power or privilege. Except as set forth in"
"| (7)| Junior Liens. It being understood that B notes secured by the same Mortgage as a Mortgage Loan are not subordinate mortgages or junior liens, except for any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan, there are no subordinate mortgages or junior liens securing the payment of money encumbering the related Mortgaged Property (other than Permitted Encumbrances and the Title Exceptions, taxes and assessments, mechanics and materialmens liens (which are the subject of the representation in paragraph (5) above), and equipment and other personal property financing). Except as set forth on Exhibit B-30-1, the Seller has no knowledge of any mezzanine debt secured directly by interests in the related Mortgagor. ---|---|--- "
"| (12)| Condemnation. As of the date of origination and to the Sellers knowledge as of the Cut-Off Date, there is no proceeding pending, and, to the Sellers knowledge as of the date of origination and as of the Cut-Off Date, there is no proceeding threatened, for the total or partial condemnation of such Mortgaged Property that would have a material adverse effect on the value, use or operation of the Mortgaged Property. ---|---|--- "
"| (13)| Actions Concerning Mortgage Loan. As of the date of origination and to the Sellers knowledge as of the Cut-Off Date, there was no pending or filed action, suit or proceeding, arbitration or governmental investigation involving any Mortgagor, guarantor, or Mortgagors interest in the Mortgaged Property, an adverse outcome of which would reasonably be expected to materially and adversely affect (a) such Mortgagors title to the Mortgaged Property, (b) the validity or enforceability of the Mortgage, (c) such Mortgagors ability to perform under the related Mortgage Loan, (d) such guarantors ability to perform under the related guaranty, (e)the principal benefit of the security intended to be provided by the Loan Documents or (f) the current principal use of the Mortgaged Property. ---|---|--- "
"| (14)| Escrow Deposits. All escrow deposits and payments required to be escrowed with Mortgagee pursuant to each Mortgage Loan are in the possession, or under the control, of the Seller or its servicer, and there are no deficiencies (subject to any applicable grace or cure periods) in connection therewith, and all such escrows and deposits (or the right thereto) that are required to be escrowed with Mortgagee under the related Loan Documents are being conveyed by the Seller to Depositor or its servicer. ---|---|--- "
"Insurance Rating Requirements), in an amount (subject to a customary deductible) not less than the lesser of (1) the original principal balance of the Mortgage Loan and (2) the full insurable value on a replacement cost basis of the improvements, furniture, furnishings, fixtures and equipment owned by the Mortgagor and included in the Mortgaged Property (with no deduction for physical depreciation), but, in any event, not less than the amount necessary or containing such endorsements as are necessary to avoid the operation of any coinsurance provisions with respect to the related Mortgaged Property."
"guarantor shall have colluded with (or, alternatively, solicited or caused to be solicited) other creditors to cause an involuntary bankruptcy filing with respect to the Mortgagor or (iii) voluntary transfers of either the Mortgaged Property or equity interests in Mortgagor made in violation of the Loan Documents; and (b) contains provisions providing for recourse against the Mortgagor and guarantor (which is a natural person or persons, or an entity distinct from the Mortgagor (but may be affiliated with the Mortgagor) that has assets other than equity in the related Mortgaged Property that are not de minimis), for losses and damages sustained by reason of Mortgagors (i) misappropriation of rents after the occurrence of an event of default under the Mortgage Loan; (ii) misappropriation of (A) insurance proceeds or condemnation awards or (B)security deposits or, alternatively, the failure of any security deposits to be delivered to Mortgagee upon foreclosure or action in lieu thereof (except to the extent applied in accordance with leases prior to a Mortgage Loan event of default); (iii) fraud or intentional material misrepresentation; (iv)breaches of the environmental covenants in the Loan Documents; or (v) commission of intentional material physical waste at the Mortgaged Property (but, in some cases, only to the extent there is sufficient cash flow generated by the related Mortgaged Property to prevent such waste)."
"shall not be required to spend more than the Terrorism Cap Amount on terrorism insurance coverage, and if the cost of terrorism insurance exceeds the Terrorism Cap Amount, the Mortgagor is required to purchase the maximum amount of terrorism insurance available with funds equal to the Terrorism Cap Amount. The Terrorism Cap Amount is the specified percentage (which is at least equal to 200%) of the amount of the insurance premium that is payable at such time in respect of the property and business interruption/rental loss insurance required under the related Loan Documents (without giving effect to the cost of terrorism and earthquake components of such casualty and business interruption/rental loss insurance)."
"| (e)| The Ground Lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder (provided that proper notice is delivered to the extent required in accordance with the Ground Lease), and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of (but with prior notice to) the lessor; ---|---|--- "
"| (f)| The Seller has not received any written notice of material default under or notice of termination of such Ground Lease. To the Sellers knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease and to the Sellers knowledge, such Ground Lease is in full force and effect as of the Closing Date; ---|---|--- "
"| (36)| Origination and Underwriting. The origination practices of the Seller (or the related originator if the Seller was not the originator) with respect to each Mortgage Loan have been, in all material respects, legal and as of the date of its origination, such Mortgage Loan (or the related Loan Combination, as applicable) and the origination thereof complied in all material respects with, or was exempt from, all requirements of federal, state or local law relating to the origination of such Mortgage Loan; provided that such representation and warranty does not address or otherwise cover any matters with respect to federal, state or local law otherwise covered in this ExhibitB. ---|---|--- "
"| 2.| The Seller has complied in all material respects with all the covenants and satisfied all the conditions on its part to be performed or satisfied under the Agreement on or prior to the date hereof, and no event has occurred which would constitute a default on the part of the Seller under the Agreement. ---|---|--- "
"| v.| In connection with (x) any amendment to the Outside Servicing Agreement, a party to such Outside Servicing Agreement is required to provide a copy of the executed amendment to the Depositor (which may be by email), in order for the holder of the Outside Serviced Mortgage Loan and the Depositor to timely comply with its obligations under the Exchange Act, and (y) the termination, resignation and/or replacement of any Outside Servicer or Outside Special Servicer, the replacement Outside Servicer or Outside Special Servicer, as applicable, is required to provide all disclosure about itself that is required to be included in Form 8-K no later than the date of effectiveness thereof; ---|---|--- "
"Reference is hereby made to that certain Pooling and Servicing Agreement, dated as of May 1, 2016 (the Pooling and Servicing Agreement), relating to the issuance of the Citigroup Commercial Mortgage Trust 2016-C1, Commercial Mortgage Pass-Through Certificates, Series 2016-C1 (the Series 2016-C1 Certificates) and that certain Mortgage Loan Purchase Agreement, dated as of May 1, 2016 (the Mortgage Loan Purchase Agreement), between the undersigned (the Seller) and Citigroup Commercial Mortgage Securities Inc. (the Depositor), pursuant to which the Seller sold certain Mortgage Loans to the Depositor in connection with the issuance of the Series 2016-C1 Certificates. In accordance with Section 5(h) of the Mortgage Loan Purchase Agreement, the Seller hereby certifies to the Depositor (with a copy to the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Custodian, the Controlling Class Representative, the Asset Representations Reviewer, and the Operating Advisor), as follows:"
1.3 Payment of the Subscription Price and Purchase Price for the Preferred Shares. All payments pursuant to this Section 1.3 shall be made by the Investor by wire transfer of immediately available funds to the Company. The account for payment shall be designated by the Company to the Investor at least one business day prior to the Closing Date. On the Closing Date the Investor shall pay a dollar amount equal to the product of (a) $100.00 (one hundred dollars) per share (the Per Share Purchase Price) and (b) the number of shares of Series A Preferred Stock issued by the Company to the Investor pursuant to the terms of this agreement (the Preferred Shares Purchase Price).
"1.4 Closing of the Preferred Shares. The closing of the purchase and sale of the Preferred Shares (the Closing) shall take place upon the execution of this Agreement via e-mail by means of PDF copies of signed documents (with the original signed documents to be delivered promptly after Closing), or at such other time and by such other means as shall be agreed to by the Company and the Investor (such date, the Closing Date)."
"2.14 Compliance with Existing Instruments. Neither the Company nor any of the Subsidiaries is (i) in violation of its certificate of incorporation, bylaws or other organizational documents (the Charter Documents); (ii) in violation of any U.S. or non-U.S. federal, state or local statute, law (including, without limitation, common law) or ordinance, or any judgment, decree, rule, regulation, order or injunction (collectively, Applicable Law) of any Governmental Authority, applicable to any of them or any of their respective properties, except as would not result in a Material Adverse Effect; or (iii) in breach of or default under any Applicable Agreement (defined below) , except as set forth in Schedule 2.14. To the Companys Knowledge, all Applicable Agreements are in full force and effect and are legal, valid and binding obligations,"
"2.16 No Consents. Except as set forth on Schedule 2.16, no consent, approval, authorization, order, filing, confirmation or registration of or with any Governmental Authority, Educational Agency or third party is required for execution, delivery or performance of the Transaction Documents or the consummation of the Transaction, except those that have been official or made, as the case may be, that are in full force and effect and as may be required under the securities or Blue Sky laws of U.S. state or non-U.S. jurisdictions."
"2.17 Litigation. Except as set forth on Schedule 2.17, and except as disclosed in the Company Disclosure Package, there are no pending actions, suits or proceedings (including any inquiries or investigations by any Governmental Authority or Educational Agency) against or affecting the Company or any of the Subsidiaries and, to the Knowledge of the Company, no such actions, suits or proceedings (including any inquiries or investigations by any Governmental Authority or Educational Agency) are threatened that, if determined adversely to the Company or any of the Subsidiaries would individually or in the aggregate have a Material Adverse Effect."
"to which any insurance company is denying liability or defending under a reservation of rights clause, except claims that if finally denied or successfully defended by any insurance company, would not have a Material Adverse Effect on the Company and its Subsidiaries, except as set forth on Schedule 2.25. Except as to claims not meeting coverage requirements, neither the Company nor any such Subsidiary has been refused any insurance coverage sought or applied for, and neither the Company nor any such Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage or obtain such coverage as may be necessary and appropriate for the continuation of the Companys business at a cost that would not, individually or in the aggregate, have a Material Adverse Effect."
"2.27 Use of Proceeds; Solvency; Going Concern. As of the date hereof, after giving pro forma effect to the Offering and the Use of Proceeds, the Company and the Subsidiaries, on a consolidated basis, will be Solvent (as hereinafter defined). As used in this paragraph, the term Solvent means, with respect to any particular date, that on such date (a) the fair value of the property of the Company is greater than the total amount of liabilities, including subordinated and contingent liabilities, of the Company; (b) the present fair saleable value of the assets of the Company is not less than the amount that will be required to pay the probable liability of the Company on its debts and liabilities, including subordinated and contingent liabilities as they become absolute and matured; (c) the Company does not intend to, and does not believe that it will, incur debts or liabilities beyond the Companys ability to pay as such debts and liabilities mature; and (d) the Company is not engaged in a business or transaction, and is not about to engage in a business or transaction, for which the Companys property would constitute an unreasonably small capital. The amount of contingent liabilities (such as litigation, guaranties and pension plan liabilities) at any time shall be computed as the amount that, in light of all the facts and circumstances existing at the time, represents the amount that would reasonably be expected to become an actual or matured liability."
"2.33 No Brokers. Other than as set forth in Schedule 2.33, neither the Company nor any of its Affiliates has engaged any broker, finder, commission agent or other person in connection with the Transaction, and neither the Company nor any of its Affiliates is under any obligation to pay any brokers fee or commission in connection with such Transaction."
"2.36 No Unlawful Contributions or Other Payments. Neither the Company nor any of the Subsidiaries nor, to the best of the Companys Knowledge, any employee or agent of the Company or any Subsidiary, has made any contribution or other payment to any official of, or candidate for, any federal, state or foreign office in violation of any law or of the character required to be disclosed in the Company Disclosure Package."
"2.40 Related Party Transactions. Except as disclosed in the Company Disclosure Package, no relationship, direct or indirect, exists between or among any of the Company or any affiliate of the Company, on the one hand, and any director, officer, member, stockholder, customer or supplier of the Company or any affiliate of the Company, on the other hand, which is required by the Securities Act to be disclosed in a registration statement on Form S-1 which is not so disclosed in the Company Disclosure Package. There are no outstanding loans, advances (except advances for business expenses in the ordinary course of business) or guarantees of indebtedness by the Company or any affiliate of the Company to or for the benefit of any of the officers or directors of the Company or any affiliate of the Company or any of their respective family members."
"(a) Since the Compliance Date, the Company, including its Subsidiaries and Schools, has received the material licenses, permits, and approvals of all Governmental Authorities and Educational Agencies necessary to conduct their businesses, including without limitation, all material Educational Approvals necessary for each School to conduct its operations and offer its educational programs. Since the Compliance Date, the Company, including its Subsidiaries and Schools, is and has been in material compliance with all applicable Education Laws and with the terms and conditions of all Educational Approvals. Each current Educational Approval is in full force and effect, and no proceeding for the suspension, material limitation, revocation, termination or cancellation of any of them is pending or, to the Knowledge of the Company, threatened. Since the Compliance Date, no application made by the any School to any Educational Agency has been denied. Since the Compliance Date, neither the Company nor any of its Subsidiaries or Schools has received notice from any Educational Agency that it has been placed on probation or ordered to show cause why any Educational Approval for any School or any of its educational programs should not be revoked. Since the Compliance Date, neither the Company nor any of its Subsidiaries or Schools has received notice that any current Educational Approval will not be renewed. To the Knowledge of the Company, the Company, its Subsidiaries and each School is in material compliance with Consumer Protection Laws applicable to the Company, any Subsidiary or any School as in effect and as interpreted by the Company as of the date of this Agreement."
"(i) Since the Compliance Date, the Company, including its Subsidiaries and Schools, has obtained or maintained all material Educational Approvals required to operate each additional campus, location, or facility of the Schools and required in order to disburse Title IV Program funds to students at such additional campus, location, or facility, as applicable."
"(m) Since the Compliance Date, the Company, including its Subsidiaries and Schools, has complied, in all material respects, with 20 U.S.C.  1085(d)(5) and 34. C.F.R.  682.212 regarding prohibited inducements in the Federal Family Education Loan Program. Since the Compliance Date, each School has complied, in all material respects, with the Educational Laws prohibiting any School, employee, agent or official thereof from accepting any gift, payment, inducement, benefit, staffing assistance, advisory board position, or other thing of value in exchange for directing Educational Loan or Private Educational Loan applications to any lender. Since the Compliance Date, neither the Company, nor any of its Subsidiaries or Schools have received any written notice of any investigation by any Educational Agency or other Governmental Authority regarding Sellers, any Subsidiary of the Companys or the Schools student lending practices."
"(p) The Company, including its Subsidiaries and Schools, are in material compliance with all Educational Agency and DOE requirements and regulations, including but not limited to requirements set forth at 34 C.F.R.  668.22, relating to (i) fair and equitable refunds policy and (ii) the calculation and timely repayment of federal and nonfederal funds."
"(z) Since the Compliance Date, neither the Company nor any of its Subsidiaries or Schools has knowingly contracted with any Person that has been, or whose officers or employees have been, convicted of, or pled nolo contendere or guilty to, a crime involving the acquisition, use or expenditure of funds of any Governmental Authority or Educational Agency, or administratively or judicially determined to have committed fraud or any other material violation of law involving funds of any Governmental Authority or Educational Agency."
"3.7 No Manipulation or Stabilization of Price. The Investor has not taken and will not take, directly or indirectly, any action designed to, or that would constitute or that might reasonably be expected to, cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company in order to facilitate the sale or resale of any securities of the Company, and the Investor is not aware of any such action taken or to be taken by any person."
"(c) Within ten (10) Business Days, after knowledge thereof shall have come to the attention of the Company, any Subsidiary or any School: (i) written notice of the intent of any Educational Agency to limit, suspend, terminate, revoke, withdraw or not renew any Educational Approval of the Company or any Subsidiary or any School that is not resolvable by the Company by the filing of a form, payment of an ordinary course fee or taking such other action that is routine in the industry and (ii) written notice of any initiation of a show cause or probation action initiated by any Educational Agency against the Company, or any Subsidiary or any School."
"(d) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NO INDEMNIFYING PARTY OR THEIR RESPECTIVE AFFILIATES SHALL BE LIABLE HEREUNDER TO ANY INDEMNIFIED PARTY FOR ANY (i) PUNITIVE OR EXEMPLARY DAMAGES OR (ii) LOST PROFITS OR CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES EXCEPT, IN THE CASE OF THIS CLAUSE (ii), TO THE EXTENT SUCH LOST PROFITS OR DAMAGES ARE (A) NOT BASED ON ANY SPECIAL CIRCUMSTANCES OF THE PARTY ENTITLED TO INDEMNIFICATION AND (B) THE NATURAL, PROBABLE AND REASONABLY FORESEEABLE RESULT OF THE EVENT THAT GAVE RISE THERETO OR THE MATTER FOR WHICH INDEMNIFICATION IS SOUGHT HEREUNDER, REGARDLESS OF THE FORM OF ACTION THROUGH WHICH SUCH DAMAGES ARE SOUGHT, EXCEPT IN EACH CASE OF THE FOREGOING CLAUSES (i) AND (ii), TO THE EXTENT ANY SUCH LOST PROFITS OR DAMAGES ARE INCLUDED IN ANY ACTION BY A THIRD PARTY AGAINST SUCH INDEMNIFIED PARTY FOR WHICH IT IS ENTITLED TO INDEMNIFICATION UNDER THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, THE INVESTOR ACKNOWLEDGES AND AGREES"
"6.3 For the avoidance of doubt, Investor or its Affiliates shall not be entitled to indemnity under this Article 6 for Losses incurred as a result of a reduction in the trading price of the Common Stock of the Company following the date hereof unless such reduction is caused by facts and circumstances that constitute a breach of the representations, warranties or covenants included in this Agreement."
"6.4 No Duplication. In no event shall any Indemnified Party be entitled to recover any Loss under one section or provision of this Agreement to the extent of the full amount of such Loss already recovered by such Indemnified Party, nor shall its insurer or indemnitor be entitled to any kind of subrogation or substitution which would give it the right to make a claim against the Indemnifying Party."
"7.1 Construction. Unless the context of this Agreement otherwise requires, (a) words of any gender are deemed to include the other gender; (b) words using the singular or plural number also include the plural or singular number, respectively; (c) the terms hereof, herein, hereby, hereto and derivative or similar words refer to this Agreement as a whole and not to any particular provision; (d) the terms Article, Section, Schedule and Exhibit refer to the specified Article or Section of or Schedule or Exhibit to this Agreement; (f) the term including and other forms of such term, with respect to any matter or thing, mean including but not limited to such matter or thing; (g) the term control shall include, without limitation, the possession, directly or indirectly, of the power to direct the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise; (h) all references to dollars or $ refer to currency of the United States of America; and (i) when calculating the period of time within or following which any act is to be done, any notice is to be given or any other action is to be taken, the date which is the reference date in such period shall be excluded and if the last day of such period is not a business day, then such period shall end on the next succeeding day that is a business day. The parties acknowledge and agree that nothing herein nor the disclosure obligations of the parties pursuant to this Agreement shall be deemed to constitute"
"7.2 Fees and Expenses. Each of the Company, on the one hand, and the Investor, on the other hand, shall pay all of their respective expenses incurred in connection with the preparation, execution and delivery of the Transaction Documents and the consummation of the transactions contemplated thereby; provided, however, that the Company shall pay, and hold the Investor, its Affiliates and each of their representatives harmless against all liability for the payment of (i) the reasonable and properly documented fees and charges of Latham & Watkins LLP and Hogan Marren Babbo & Rose, Ltd, each, counsel to the Investor, that are incurred in connection with the consummation of the transactions contemplated thereby, including the preparation, execution and delivery of the Transaction Documents and (ii) any stamp or similar taxes which may be determined to be payable in connection with the execution and delivery and performance of any Transaction Document or any modification, amendment or alteration of any Transaction Document, and all issue taxes in respect of the issuance of the Preferred Shares. At Closing, the Company shall pay or reimburse the Investor pursuant to this Section 7.2 for the reasonable and properly documented fees and charges of Latham & Watkins LLP and Hogan Marren Babbo & Rose, Ltd, not to exceed the amount of $330,000.00 which shall be fulfilled at Closing by permitting the Investor to deduct such fees and charges from the proceeds payable by the Investor to the Company and to wire such amounts directly to Latham & Watkins LLP and Hogan Marren Babbo & Rose, Ltd at Closing."
"7.4 Entire Agreement; Severability. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings among the parties with respect to such subject matter. It is the desire and intent of the parties that the provisions of this Agreement be enforced to the fullest extent permissible under the law and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, in the event that any provision of this Agreement would be held in any jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not 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."
"Consumer Protection Law means any law, regulation, rule, order or binding standard directly or indirectly related to the protection of consumers in financing transactions, including, without limitation, the federal Truth in Lending Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the privacy and data security provisions of the Gramm-Leach-Bliley Act, Section 5 of the Federal Trade Commission Act, the Consumer Financial Protection Act and applicable federal agency regulations implementing the foregoing, and any state law or regulation regarding retail installment sales agreements, consumer loans, or unfair or deceptive acts or practices."
"Educational Notices/Consents means any approval, authorization, confirmation or consent by any Educational Agency or any notification to be made by the Parties to an Educational Agency, with regard to the transactions contemplated herein, which is necessary to be made or obtained under applicable Educational Laws in order to maintain or continue any Educational Approval held by any School as of the date of this Agreement."
"Financial Assistance Programs means each Title IV Program pursuant to which Title IV Program funding has been provided to or on behalf of any Schools students; and any other government-sponsored or private student financial assistance program other than the Title IV Programs pursuant to which student financial assistance, grants or loans were provided to or on behalf of any Schools students."
"Defined Terms Generally. The definitions set forth in Appendix A or otherwise referred to in this Agreement shall apply equally to both 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 words hereof, herein and hereunder and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement. References to a Person are also to its permitted successors and assigns. All references herein to Articles, Sections, Exhibits, Appendices and Schedules shall be deemed to be references to Articles and Sectionsof, and Exhibits, Appendices and Schedules to, this Agreement unless the context shall otherwise require. Unless the context shall otherwise require, any reference to any contract, instrument, statute, rule or regulation is a reference to it as amended and supplemented from time to time (and, in the case of a statute, rule or regulation, to any successor provision). Any reference in this Agreement to a day or a number of days (without the explicit qualification of Business) shall be interpreted as a reference to a calendar day or number of calendar days. If any action is to be taken by any Party hereto pursuant to this Agreement on a day that is not a Business Day, such action shall be taken on the next Business Day following such day."
"2.5 Restrictions on Seller. Except as set forth in the Transition Services Agreement and except as provided in Section3.2 herein, for a period of ***years after the Effective Date, Seller agrees not to (a)make, have made, sell, license or otherwise provide to any third party the Products or any products derived from and substantially identical to the Products, or (b)sell, license or otherwise provide to any third party the Restricted Documents."
"to Section3.2 herein, that Seller may have in the documents and other tangible materials and things set forth on ExhibitA to the Asset Purchase Agreement (Technical Information) pursuant to an operative transfer provision in the Asset Purchase Agreement (and/or an instrument of assignment attached thereto). Notwithstanding the foregoing in this Section3.1, Seller may retain copies of the Technical Information, subject to the license rights granted back to Seller pursuant to Section3.2 herein. Seller shall maintain in confidence the Technical Information as the Confidential Information of Purchaser in accordance with the terms of the Non-disclosure Agreement."
"(b) (i) If Seller or any of its Affiliates makes a Prohibited Claim against a Covered Purchaser Party, Purchaser shall deliver to Seller a written notice of termination of the Purchaser Covenant. If Seller or its Affiliate, as applicable, fails to dismiss or have dismissed such Prohibited Claim with prejudice within thirty (30)days after Sellers receipt of such termination notice, the Purchaser Covenant shall terminate and be null and void at the end of such thirty (30)day period with respect to all Covered Seller Parties, without giving rise in and of itself to any right of Seller pursuant to Section5.3 herein to terminate the Patent license granted by Seller to Purchaser under Section2.1 above; provided that Purchaser (on behalf of itself and each of its Affiliates) waives any claims, damages or liability with respect to any"
"(iv) For purposes of this Section3.3(b), Seller Indemnified Party means any Covered Seller Party to whom Seller or any of its Affiliates have, as of the Effective Date, an obligation to indemnify in the event Purchaser Asserts against such Covered Seller Party any claim that the manufacture, use, import, export, offer for sale, sale, distribution or other exploitation of any Seller Product or any process or method employed in the manufacture, testing, distribution, use or other exploitation of any Seller Product infringes, directly or indirectly, any Purchaser Patent."
"4.4 Ownership of Seller Licensed Patents and Seller Licensed Trade Secrets. As between the Parties, and subject only to the licenses granted by Seller to Purchaser under ArticleII above, Seller retains and owns all right, title and interest in and to the Seller Licensed Patents and the Seller Licensed Trade Secrets."
"(c) (i) an agreement by or obligation of a Party that licensed to the other Party any Intellectual Property or Technology hereunder to bring or prosecute any actions or suits against any third parties for infringement or misappropriation of such Intellectual Property or Technology or to otherwise enforce such Intellectual Property or Technology against any third party, or (ii)conferring any right on a Party licensed under any Intellectual Property or Technology hereunder to bring or prosecute actions or suits against any third parties for infringement or misappropriation of such Intellectual Property or Technology or to otherwise enforce such Intellectual Property or Technology against any third party; or"
"8.4 Notices. All notices and other communications pursuant to this Agreement shall be in writing and shall be deemed given if delivered personally, telecopied, nationally-recognized overnight courier or mailed by registered or certified mail (return receipt requested), postage prepaid, to the Parties at the addresses set forth below or to such other address as the Party to whom notice is to be given may have furnished to the other Party hereto in writing in accordance herewith. Any such notice or communication shall be deemed to have been delivered and received (a)in the case of personal delivery, on the date of such delivery, (b)in the case of telecopier, on the date sent if confirmation of receipt is received and such notice is also promptly mailed by registered or certified mail (return receipt requested), (c)in the case of a nationally-recognized overnight courier in circumstances under which such courier guarantees next Business Day delivery, on the next Business Day after the date when sent and (d)in the case of mailing, on the third Business Day following that on which the piece of mail containing such communication is posted:"
"8.7 Taxes and Expenses. Except as otherwise provided in the Asset Purchase Agreement, all costs and expenses (including any Taxes as defined in the Asset Purchase Agreement) incurred in connection with this Agreement and in closing and carrying out the transactions contemplated hereby and thereby shall be paid by the Party incurring such cost or expense."
"(b) Notwithstanding the provisions of Section8.10(a), each Party shall have the right, without the requirement of first seeking a remedy through any dispute resolution alternative (including arbitration) that has been agreed upon, to seek preliminary injunctive or other equitable relief in any proper court in the event that such Party determines that eventual redress through the dispute resolution alternative will not provide a sufficient remedy for any violation of this Agreement by the other Party."
"(c) The Parties hereby irrevocably submit to the jurisdiction of the courts of the State of California and the Federal courts of the United States of America, in each case located in the County of Santa Clara, solely in respect of the interpretation and enforcement of the provisions of this Agreement and of the documents referred to in this Agreement, and in respect of the transactions contemplated hereby, and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof or of any such document, 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. The Parties hereby consent to and grant any such court jurisdiction over the person of such Parties and over the subject matter of such dispute."
"Assert shall mean to bring or initiate any action before any legal, judicial, arbitration, administrative, executive or other type of body or tribunal that has or claims to have authority to adjudicate such action in whole or in part. Examples of such body or tribunal include United States State and Federal Courts, the United States International Trade Commission and any foreign counterparts of any of the foregoing. Assertion means the bringing or initiating of any such action."
"Seller Compatible Chipsets shall mean one or more Integrated Circuits that alone or together are capable of electrically interfacing directly (with or without buffering or pin re-assignment) with a Seller Compatible Processor to form the connection between the Seller Compatible Processor and any other device (or group of devices), including Processors, input/output devices, networks, and memory."
"Seller Processor shall mean a Processor, or proprietary extension of a third party Processor, first developed by, for or with substantial participation by Seller or any Seller Affiliate, or the design of which has been purchased or otherwise acquired by Seller or any Seller Affiliate, including without limitation the Intel x86 architecture, Core, Celeron, Pentium, Xeon, Itanium, MXP, IXP, 80860 and 80960 microprocessor families, and the 8087, 80287, and 80387 math coprocessor families."
"Payment of Special Counsel Fees. ---|---|---|--- Without limiting Section 15.1, the Company shall have paid on or before the Closing the reasonable fees, charges and disbursements of the Purchasers special counsel referred to in Section 4.4 to the extent reflected in a statement of such counsel rendered to the Company at least one Business Day prior to the Closing."
"(b)All of the outstanding shares of capital stock or similar equity interests of each Subsidiary shown in Schedule 5.4 as being owned by the Company and its Subsidiaries have been validly issued, are fully paid and, where applicable, non-assessable and are owned by the Company or another Subsidiary free and clear of any Lienthat is prohibited by this Agreement."
"(c)Each Subsidiary identified in Schedule 5.4 is a corporation or other legal entity duly organized, validly existing and, where applicable, in good standing under the laws of its jurisdiction of organization, and, where applicable, duly qualified as a foreign corporation or other legal entity and, where applicable, is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.Each such Subsidiary has the corporate or other power and authority to own or hold under lease the properties it purports to own or hold under lease and to transact the business it transacts and proposes to transact."
"(d)No Subsidiary is subject to any legal, regulatory, contractual or other restriction (other than the agreements listed on Schedule 5.4 and customary limitations imposed by corporate law or similar statutes) restricting the ability of such Subsidiary to pay dividends out of profits or make any other similar distributions of profits to the Company or any of its Subsidiaries that owns outstanding shares of capital stock or similar equity interests of such Subsidiary."
"Licenses, Permits, Etc. ---|---|---|--- TheCompany and its Subsidiaries own or possess all licenses, permits, franchises, authorizations, patents, copyrights, proprietary software, service marks, trademarks and trade names, or rights thereto, that individually or in the aggregate are Material, without known conflict with the rights of othersexcept for those conflicts that, individually or in the aggregate, would not have a Material Adverse Effect."
"(d)(1)None of the Company nor any Controlled Entity (i) has been charged with, or convicted of bribery or any other anti-corruption related activity under any applicable law or regulation in a U.S. or any non-U.S. country or jurisdiction, including but not limited to, the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010 (collectively, Anti-Corruption Laws), (ii) tothe Companys actual knowledge after making due inquiry, is under investigation by any U.S. or non-U.S. Governmental Authority for possible violation of Anti-Corruption Laws, (iii) has been assessed civil or criminal penalties under any Anti-Corruption Laws or (iv) has been or is the target of sanctions imposed by the United Nations or the European Union;"
"Status under Certain Statutes. ---|---|---|--- None ofthe Company nor any Subsidiary is subject to regulation under the United States Investment Company Act of 1940, as amended, the United States Public Utility Holding Company Act of 2005, as amended, the United States ICC Termination Act of 1995, as amended, or the United States Federal Power Act, as amended."
"setting forth in each case in comparative form the figures for the corresponding period in the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP applicable to quarterly financial statements generally, and certified by a Senior Financial Officer as fairly presenting, in all material respects, the consolidated financial position of the companies being reported on and their consolidated results of operations and consolidated cash flows, subject to changes resulting from year-end adjustments, provided that delivery within the time period specified above of copies of the Companys Form 10-Q prepared in compliance with the requirements therefor and filed with the SEC shall be deemed to satisfy the requirements of this Section 7.1(a);"
"(d)Notice of Default or Event of Default \-- promptly and in any event within five days after a Responsible Officer becoming aware of the existence of any Default or Event of Default, a written notice specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto;"
"(f)Requested Information\-- with reasonable promptness, such other data and information relating to the business, operations, affairs, financial condition, assets or properties of the Company or any of its Subsidiaries (including, but without limitation, actual copies of the Companys Form 10-Q and Form 10-K) or relating to the ability of the Company to perform its obligations hereunder and under the Notes as from time to time may be reasonably requested by any such holder of a Note."
"(b)Default  if a Default or Event of Default then exists, at the expense of the Company to visit and inspect any of the offices or properties of the Company or any Subsidiary, to examine all their respective books of account, records, reports and other papers, to make copies and extracts therefrom, and to discuss their respective affairs, finances and accounts with their respective officers and the Companys independent public accountants (and by this provision the Company authorizes said accountants to discuss the affairs, finances and accounts of the Company and its Subsidiaries), all at such times and as often as may be requested."
"Allocation of Partial Prepayments. ---|---|---|--- In the case of each partial prepayment of the Notes pursuant to Section 8.2, the principal amount of the Notes to be prepaid shall be allocated among all of the Notesat the time outstanding in proportion, as nearly as practicable, to the respective unpaid principal amounts thereof not theretofore called for prepayment."
"Remaining Scheduled Payments means, with respect to the Called Principal of any Non-SwappedNote, all payments of such Called Principal and interest thereon that would be due after the Settlement Date with respect to such Called Principal if no payment of such Called Principal were made prior to its scheduled due date, provided that if such Settlement Date is not a date on which interest payments are due to be made under the terms of the Non- SwappedNotes, then the amount of the next succeeding scheduled interest payment will be reduced by the amount of interest accrued to such Settlement Date and required to be paid on such Settlement Date pursuant to Section8.2 or 12.1."
and which is entered into in full or partial replacement of an Original Swap Agreement as a result of such Original Swap Agreement having terminated for any reason other than an actual or reasonably anticipated non-scheduled prepayment or repayment of such Swapped Note prior to its scheduled maturity.The terms of a New Swap Agreement with respect to any Swapped Note do not have to be identical to those of the Original Swap Agreement with respect to such Swapped Note.Any holder of a Swapped Note that enters into a New Swap Agreement shall within a reasonable time thereafterdeliver to the Company an updated Schedule 8.6 which shall become a part of this Agreement.
"Swapped Note Remaining Scheduled Swap Payments means, with respect to the Swapped Note Called Notional Amount relating to any Swapped Note, the payments due to the holder of such Swapped Note in Dollars under the terms of the Swap Agreement to which such holder is a party which correspond to all payments of the Swapped Note Called Principal of such Swapped Note corresponding to such Swapped Note Called Notional Amount and the interest on such Swapped Note Called Principal (other than the portion of the payment due under such Swap Agreement corresponding to the interest accrued on the"
"Payments Due on Non-Business Days. ---|---|---|--- Anything in this Agreement or the Notes to the contrary notwithstanding, (x) subject to clause (y), any payment of interest on any Note that is due on a date that is not a Business Day shall be made on the next succeeding Business Day without including the additional days elapsed in the computation of the interest payable on such next succeeding Business Day; and (y) any payment of principal of or Make-Whole Amount or Net Losson any Note (including principal due on the Maturity Date of such Note) that is due on a date that is not a Business Day shall be made on the next succeeding Business Day and shall include the additional days elapsed in the computation of interest payable on such next succeeding Business Day."
"(c)Promptly, and in any event within five (5) Business Days, after the Companys receipt of notice from any Affected Noteholder that a Noteholder Sanctions Violation shall have occurred with respect to such Affected Noteholder as a result of any OFAC Event, the Company shall forward a copy of such notice to each holder of Notes."
"(e)Notwithstanding the provisions of Section 8.8(a), if any Affected Noteholder that has given written notice to the Company of its acceptance of the Companys prepayment offer in accordance with this Section 8.8 also gives notice to the Company prior to the relevant Sanctions Prepayment Date that it has determined (in its sole discretion) that it requires clearance from any United States Governmental Authority in order to receive a prepayment pursuant to this Section 8.8, the principal amount of the Affected Noteholders Notes, together with interest accrued thereon to the date of prepayment, shall become due and payable on the later of (i) such Sanctions Prepayment Date and (ii) the date that is 10 Business Days after such Affected Noteholder gives"
"(b)Promptly upon becoming aware that a Change of Control has occurred, and in any event not later than 10 Business Days after becoming aware of the Change of Control, the Company shall give written notice of such fact to all holders of the Notes. Promptly upon becoming aware that a Change of Control Prepayment Event"
"has occurred, and not later than five Business Days after becoming aware of the Change of Control Prepayment Event, the Company shall give written notice (the Company Notice) of such fact to all holders of the Notes. The Company Notice shall (i) describe the facts and circumstances of such Change of Control Prepayment Event in reasonable detail, (ii) refer to this Section 8.9 and the rights of the holders hereunder and (iii) contain an offer by the Company to prepay the entire unpaid principal amount of Notes held by each holder at 100% of the principal amount of such Notes at par (together with the Net Loss due in relation to any Swapped Notes, if any, less in each case any Net Gain, but without any make-whole, premium, penalty or Make-Whole Amount whatsoever or howsoever described), together with interest accrued thereon to the prepayment date selected by the Company, which prepayment shall be on a date specified in the Company Notice, which date shall be a Business Day not less than 30 days and not more than 60 days after such Company Notice is given should any agreement to the contrary not be reached among the Company and each of the holders of the Notes."
"Compliance with Law. ---|---|---|--- Without limiting Section 10.9, the Company will, and will cause each of its Subsidiaries to, comply with all laws, ordinances or governmental rules or regulations to which each of them is subject, including, without limitation, ERISA, the USA PATRIOT Act and Environmental Laws and the other laws and regulations that are referred to in Section 5.16, 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 rules or regulations or failures to obtain or maintain in effect such licenses, certificates, permits, franchises and other governmental authorizations would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect."
"Priority of Obligations. ---|---|---|--- The Company will ensure that its payment obligations under this Agreement and the Notes will at all times rank at least pari passu in right of payment, without preference or priority, with all other unsecured and unsubordinated Indebtedness of the Company, except for such Indebtedness as would be preferred by operation of bankruptcy, insolvency, liquidation or similar laws of general application."
"(c)Indebtedness of any Subsidiary Guarantor, provided, that in the event that the amount recoverable under the Subsidiary Guaranty Agreement of any such Subsidiary Guarantor is limited to an amount which is less than the outstanding amounts owed under this Agreement and the Notes, the Indebtedness of such Subsidiary Guarantor in excess of such limitation (without double counting) shall not be excluded by this Section 10.4(c);"
"(ii)(1) Equity Interests in Persons (other than Subsidiaries, Unconsolidated Affiliates, Persons that are REITs and any member of the Shurgard Group), calculated on the basis of the lower of cost or market, and (2) Indebtedness secured by Mortgages in favor of the Company or any Subsidiary, based on book value and determined on a consolidated basis;"
"(iv)Total Budgeted Cost with respect to all Development Properties of the Company, its Subsidiaries and all of the Companys Unconsolidated Affiliates. For purposes of this clause (iv), the Total Budgeted Cost with respect to any Development Property owned by an Unconsolidated Affiliate of the Company shall equal the greater of (1)the product of (A)the Companys Ownership Share in such Unconsolidated Affiliate and (B)the Total Budgeted Cost for such Development Property or (2)the recourse obligations of the Company and its Subsidiaries relating to the Indebtedness of such Unconsolidated Affiliate."
"Terrorism Sanctions Regulations. ---|---|---|--- The Company will not, nor will it 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 any Person that is the target of sanctions imposed by the United Nations or by the European Union or (b) have any investments in, or engage in any dealings or transactions (including, without limitation, any investment, dealing or transaction involving the proceeds of the Notes)with, any Blocked Person where such investments, dealings, or transactions would result in either (i) the Company or a Controlled Entity being in violation of, or subject to the imposition of sanctions under, any U.S. Economic Sanctions, except to the extent such violation would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or (ii) any holder of a Note (an Affected Noteholder) being in violation of any laws or regulations applicable to such Affected Noteholder or subjected to sanctions under CISADA or any similar law or regulation with respect to Iran or any other country that is subject to U.S. Economic Sanctions (any such violation described in this clause (ii), a Noteholder Sanctions Violation); provided that, a breach of clause (b)(ii) of this Section 10.9 as a result of any OFAC Event shall only occur with respect to any Noteholder Sanctions Violation if (A) the Noteholder Sanctions Violation directly resulted from actions taken by the Company or any Controlled Entity after the occurrence of such OFAC Event (Prohibited Subsequent Actions) or (B) so long as no Prohibited Subsequent Actions have occurred, (1) the Affected Noteholder with respect to such Noteholder Sanctions Violation has provided the Company with written notice of such Noteholder Sanctions Violation and such other information contemplated by Section 8.8 with respect thereto and (2) the Company shall have failed to comply with Section 8.8 with respect to such Noteholder Sanctions Violation."
any representation or warranty made in writing by or on behalf of any Subsidiary Guarantor or by any officer of such Subsidiary Guarantor in any Subsidiary Guaranty Agreement or any writing furnished in connection with such Subsidiary Guaranty Agreement proves to have been false or incorrect in any material respect on the date as of which made; or
"(c)If any Event of Default described in Section11(a) or (b) has occurred and is continuing, any holder or holders of Notes at the time outstanding affected by such Event of Default may at any time, at its or their option, by notice or notices to the Company, declare all the Notes held by it or them to be immediately due and payable."
"Transfer and Exchange of Notes; No Transfer to Competitors. ---|---|---|--- (a)Upon surrender of any Note to the Company at the address and to the attention of the designated officer (all as specified in Section 18(iii)) for registration of transfer or exchange (and in the case of a surrender for registration of transfer accompanied by a written instrument of transfer duly executed by the registered holder of such Note or such holders attorney duly authorized in writing and accompanied by the relevant name, address, jurisdiction of tax residence and other details for notices of each transferee of such Note or part thereofand including confirmation of whether such transferee is entitled to the benefit of a double taxation treaty between its jurisdiction of tax residence and the United States of America) within ten Business Days thereafter the Company shall execute and deliver, at the Companys expense (except as provided below), one or more new Notes (as requested by the holder thereof) in exchange therefor, in an aggregate principal amount equal to the unpaid principal amount of the surrendered Note.Each such new Note shall be payable to such Person as such holder may request and shall be substantially in the form of Exhibit 1.1, as applicable.Each such new Note shall be dated and bear interest from the date to which interest shall have been paid on the surrendered Note or dated the date of the surrendered Note if no interest shall have been paid thereon.The Company may require payment of a sum sufficient to cover any stamp tax or governmental charge imposed in respect of any such transfer of Notes.Notes shall not be transferred in denominations of less than 500,000, provided that if necessary to enable the registration of transfer by a holder of its entire holding of Notes, one Note may be in a denomination of less than 500,000.Any transferee, by its acceptance of a Note registered in its name (or the name of its nominee), shall be deemed to have made the representations set forth in Section 6."
"(b)Payment.The Companywill not directly or indirectly pay or cause to be paid any remuneration, whether by way of supplemental or additional interest, fee or otherwise, or grant any security or provide other credit support, to any holder of Notes as consideration for or as an inducement to the entering into by any holder of Notes of any waiver or amendment of any of the terms and provisions hereof or of the Notes or any Subsidiary Guaranty Agreement unless such remuneration is concurrently paid, or security is concurrently granted or other credit support concurrently provided, on the same terms, ratably to each holder of Notes then outstanding even if such holder did not consent to such waiver or amendment."
"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 any Subsidiary Guaranty Agreement, or have directed the taking of any action provided herein or in the Notes or in any 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 Companyor any of its Affiliates or any Competitor shall be deemed not to be outstanding."
"(i)such Default or Event of Default shall be tolled or suspended and the Company and the holders of all outstanding Notes shall promptly enter into good faith negotiations lasting for a period not to exceed ninety (90) days, pursuant to which the Company and the Required Holders shall (if possible) agree to an amendment or waiver of terms of this Agreement sufficient to eliminate or preempt any such Default or Event of Default; and"
"Counterparts. ---|---|---|--- This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one instrument.Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto."
"(c)The Companyagrees, to the fullest extent permitted by applicable law, that a final judgment in any suit, action or proceeding of the nature referred to in Section 22.7(a) brought in any such court shall be conclusive and binding upon it subject to rights of appeal, as the case may be, and may be enforced in the courts of the United States of America or the State of New York (or any other courts to the jurisdiction of which it or any of its assets is or may be subject) by a suit upon such judgment."
"Fair Value Accounting. ---|---|---|--- In determining compliance with the requirements of the financial covenants contained in Section 10.3 through Section 10.8 (inclusive), any election by the Company to measure any portion of Indebtedness at fair value (as permitted by Accounting Standards Codification 825-10-25 (previously referred to as SFAS 159) or any similar accounting standard) at balance sheet date, other than to reflect a hedge or swap (or other similar derivative instrument) of such Indebtedness (including, without limitation, both interest rate and foreign currency hedges and/or swaps), shall be disregarded and such determination shall be made as if such election had not been made."
"Affiliatemeans, at any time, and with respect to any Person, any other Person that at such time directly or indirectly through one or more intermediaries Controls, or is Controlled by, or is under common Control with, such first Person. As used in this definition only, Control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. Unless the context otherwise clearly requires, any reference to an Affiliate is a reference to an Affiliate of the Company."
"Excluded Transactions means (a) transactions between the Company and Subsidiaries or between Subsidiaries and (b) current and future transactions between the Company and Subsidiaries on the one part and other Affiliates on the other part, that either (i) are disclosed in the Companys financial statements or SEC filings of the Company or the Subsidiaries or (ii) are immaterial."
"any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the United States and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) of this definition; or (c) any agreement pursuant to the implementation of paragraphs (a) or (b) of this definition with the United States Internal Revenue Service, the United States government or any governmental or taxation authority in any other jurisdiction."
"Finance Subsidiary means a Subsidiary which (a) has been formed for the purpose of, and whose primary activities are, the issuance of debt obligations to Persons other than Affiliates and the lending of net proceeds of such debt obligations to the Company and/or any Subsidiary Guarantorand activities related thereto, and (b) has no significant assets other than promissory notes evidencing such loans."
"Gross Asset Value means, at a given time, the sum (without duplication) of (a) Capitalized EBITDA of the Company and its Subsidiaries determined on a consolidated basis, excluding Capitalized EBITDA attributable to Real Properties acquired by the Company or such Subsidiary during the immediately preceding four consecutivefiscal quarters of the Company and Development Properties, plus (b) all cash and cash equivalents (excluding tenant deposits and other cash and cash equivalents the disposition of which is restricted) of the Company and its Subsidiaries at such time, plus (c) the current book value of Development Properties and all land held for development; provided, however, any land which is not appropriately entitled or zoned to permit the use of such Real Property as a self-storage facility shall only be included at 50% of book value, plus (d) with respect to each Unconsolidated Affiliate of the Company, the Companys respective Ownership Share of (i) the Capitalized EBITDA of each such Unconsolidated Affiliate and (ii) the current book values of all real property of each such Unconsolidated Affiliate upon which construction is in progress, plus (e) the purchase price paid by the Company or any Subsidiary (less any amounts paid to the Company or such Subsidiary as a purchase price adjustment, held in escrow, retained as a contingency reserve, or in connection with other similar arrangements, and without regard to allocations of property purchase prices pursuant to Statement of Financial Accounting Standards No. 141 or other provisions of GAAP) for any Real Property acquired by the Company or such Subsidiary during the immediately preceding four consecutive fiscal quarters of the Company, plus (f) the contractual purchase price of Real Properties of the Company and its Subsidiaries subject to purchase obligations, repurchase obligations, forward commitments and unfunded obligations to the extent such obligations and commitments are included in determinations of Total Liabilities of the Company, plus (g) the value (determined in accordance with GAAP) of all promissory notes payable solely to the Company or any of its Subsidiaries (excluding any such note where (i) the obligor is more than 30 days past due with respect to any payment obligation or is the subject of a bankruptcy proceeding or other proceeding, event or condition of the types referred to in Section 11(g) or (h) or (ii) the obligor is an Affiliate of the Company (other than PS Business Parks, Inc., PS Business Parks, L.P., Shurgard Europe, or a Subsidiary of Shurgard Europe so long as any such note issued by any of PS Business Parks, Inc., PS Business Parks, L.P., Shurgard Europe or a Subsidiary of Shurgard Europe matures within six months of issuance), plus (h) the Fair Market Value of all Marketable Securities owned by the Company and its Subsidiaries, plus (i) all other assets of the Company and its Subsidiaries (the value of which is determined in accordance with GAAP but excluding assets classified as intangible under GAAP).No more than 10.0% of the Gross Asset Value may be attributable to the aggregate of the following (x) the current book value of land held for development and (y) the value attributable to the assets referenced in clauses (g) and (i) above.For the avoidance of doubt, the value of the Equity Interests of PS Business Parks, Inc., PS Business Parks, L.P., any Subsidiary of PS Business Parks, Inc., Shurgard Europe, or any Subsidiary of Shurgard Europe"
"Lien as applied to the property of any Person means:(a) any security interest, encumbrance, mortgage, deed to secure debt, deed of trust, pledge, lien, charge or lease constituting a Capitalized Lease Obligation, conditional sale or other title retention agreement, or other security title or encumbrance of any kind in respect of any property of such Person, or upon the income or profits therefrom; (b) any arrangement, express or implied, under which any property of such Person is transferred, sequestered"
"Ownership Share means, with respect to any Subsidiary of a Person (other than a Wholly Owned Subsidiary) or any Unconsolidated Affiliate of a Person, the greater of (a) such Persons relative nominal direct and indirect ownership interest (expressed as a percentage) in such Subsidiary or Unconsolidated Affiliate or (b) such Persons relative direct and indirect economic interest (calculated as a percentage) in such Subsidiary or Unconsolidated Affiliate determined in accordance with the applicable provisions of the declaration of trust, articles or certificate of incorporation, articles of organization, partnership agreement, joint venture agreement or other applicable organizational document of such Subsidiary or Unconsolidated Affiliate."
"Permitted Liens means, with respect to any asset or property of a Person, (a) Liens securing taxes, assessments and other charges or levies imposed by any Governmental Authority (excluding any Lien imposed pursuant to any of the provisions of ERISA or pursuant to any Environmental Laws) or the claims of materialmen, mechanics, carriers, warehousemen or landlords for labor, materials, supplies or rentals incurred in the ordinary course of business; (b) Liens consisting of deposits or pledges made, in the ordinary course of business, in connection with, or to secure payment of, obligations under workmens compensation, unemployment insurance or similar applicable laws; (c) Liens consisting of encumbrances in the nature of zoning restrictions, easements, and rights or restrictions of record on the use of real property, which do not materially detract from the value of such property or impair the use thereof in the business of such Person; and (d) the rights of tenants under leases or subleases not interfering with the ordinary conduct of business of such Person and (e) Liens in favor of the holders (or their agent)."
"Preferred Stock means, with respect to any Person, shares of capital stock of, or other equity interests in, such Person which are entitled to preference or priority over any other capital stock of, or other equity interest in, such Person in respect of the payment of dividends or distributions, or distribution of assets upon liquidation or both."
"Reserve for Replacements means, for any period and with respect to any Real Property, an amount equal to (a)the aggregate net rentable square footage of all completed space of such Real Property times (b)$0.35 times (c)the number of days such Real Property was operated in such period divided by (d)365.If the term Reserve for Replacements is used without reference to any specific Real Property, then it shall be determined on an aggregate basis with respect to all Real Properties and the applicable Ownership Shares with respect to all Real Properties of all Unconsolidated Affiliates."
"Total Liabilities means, as to any Person as of a given date, all liabilities which would, in conformity with GAAP, be properly classified as a liability on the balance sheet of such Person as of such date, and in any event shall include (without duplication): (a) all Indebtedness of such Person (whether or not Non-Recourse Indebtedness and whether or not secured by a Lien), including without limitation, Capitalized Lease Obligations; (b) all accounts payable and accrued expenses of such Person; (c) all purchase and repurchase obligations and forward commitments of such Person to the extent such obligations or commitments are evidenced by a binding purchase agreement (forward commitments shall include without limitation (i) forward equity commitments and (ii) commitments to purchase any real property under development, redevelopment or renovation); (d) all unfunded obligations of such Person; (e) all lease obligations of such Person (including ground leases) to the extent required under GAAP to be classified as a liability on the balance sheet of such Person; (f) all contingent obligations of such Person including, without limitation, all Guarantees of Indebtedness by such Person; (g) all liabilities of any Unconsolidated Affiliate of such Person, which liabilities such Person has Guaranteed or is otherwise obligated on a recourse basis; (h) such Persons Ownership Share of the Indebtedness of any Unconsolidated Affiliate of such Person, including Non-Recourse Indebtedness of such Person (but excluding Indebtedness of such Unconsolidated Affiliate owing to such Person); and (i) in the case of the Company, obligations in respect of preferred partnership units or other preferred Equity Interest issued by any Subsidiary (excluding obligations in respect of any such preferred Equity Interests beneficially owned by the Company or any Subsidiary).For purposes of clauses (c) and (d) of this definition, the amount of Total Liabilities of a Person at any given time in respect of (x) a contract to purchase or otherwise acquire unimproved or developed real property shall be equal to the total purchase price payable by such Person under the contract if, at such time, the seller of such real property would be entitled to specifically enforce the contract against such Person, and (y) a contract relating to the acquisition of real property which the seller is required to develop or renovate prior to, and as a condition precedent to, such acquisition, shall equal the maximum amount reasonably estimated to be payable by such Person under the contract assuming performance by the seller of its obligations under the contract, which amount shall include, without limitation, any amounts payable after consummation of such acquisition which may be based on certain performance levels or other related criteria."
"Unconsolidated Affiliate shall mean, with respect to any Person, any other Person(other than PS Business Parks, Inc., PS Business Parks L.P., Subsidiaries of PS Business Parks, Inc., Shurgard Europe and Subsidiaries of Shurgard Europe) in whom such Person holds an Investment, which Investment is accounted for in the financial statements of such Person on an equity basis of accounting and whose financial results would not be consolidated under GAAP with the financial results of such Person on the consolidated financial statements of such Person."
"Unencumbered Asset means a promissory note or a Marketable Security which satisfies all of the following requirements: (a) such property is wholly owned by the Company or a Wholly Owned Subsidiary provided, that if a Subsidiary does not meet the definition of Wholly Owned Subsidiary solely because such Subsidiary has issued partnership interests that are or will be convertible at the option of the holder of such partnership interest into the Equity Interests or Preferred Stock of the Company, such Subsidiary shall be considered a Wholly Owned Subsidiary for purposes of this clause (a); and (b) neither such property, nor if such asset is owned by a Subsidiary, any of the Companys direct or indirect ownership interest in such Subsidiary, is subject to (i) any Lien other than Permitted Liens of the types described in clauses (a), (b), and (e) of the definition thereof or (ii) any Negative Pledge."
"Subsidiaries (excluding any such note where (i) the obligor is more than 30 days past due with respect to any payment obligation or is the subject of a bankruptcy proceeding or other proceeding, event or condition of the types referred to in Section 11(g) or (h) or (ii) the obligor is an Affiliate of the Company (other than PS Business Parks, Inc., PS Business Parks, L.P., Shurgard Europe or a Subsidiary of Shurgard Europe, so long as any such note issued by any of PS Business Parks, Inc., PS Business Parks, L.P., Shurgard Europe or a Subsidiary of Shurgard Europe matures within six months of issuance), plus (g) the Fair Market Value of all Marketable Securities that are also Unencumbered Assets.To the extent that the amount of Unencumbered Asset Value attributable to Real Properties leased pursuant to Ground Leases would constitute more than 10.0% of Unencumbered Asset Value, such excess shall be excluded.To the extent that the amount of Unencumbered Asset Value attributable to Non-Domestic Properties would constitute more than 10.0% of Unencumbered Asset Value, such excess shall be excluded.To the extent that the amount of Unencumbered Asset Value attributable to (x) the current book value of land held for development and (y) the value attributable to the assets referenced in clause (f) above, would exceed 10.0% of Unencumbered Asset Value, such excess shall be excluded.For the avoidance of doubt, the value of the Equity Interests of PS Business Parks, Inc., PS Business Parks, L.P., any Subsidiary of PS Business Parks, Inc., Shurgard Europe, or any Subsidiary of Shurgard Europe owned by the Company and its Subsidiaries that constitute Marketable Securities shall be determined under clause (a) of the definition of Fair Market Value.The Company shall have the option to include Capitalized Unencumbered NOI under clause (a) above from Real Properties that are otherwise subject to valuation under clause (d) above; provided, however, that if such election is made, any value attributable to such Real Properties under clause (d) above shall be excluded from the determination of the amount under clause (d). Further, no Real Property or any of the other assets described in clauses (a) through (g) owned or held (or in the case of any Eligible Property subject to a Ground Lease, leased) by a Subsidiary shall be included in the calculation of Unencumbered Asset Value if such Subsidiary has incurred, acquired or suffered to exist any Recourse Indebtedness."
"the Agreement when and as the same shall become due and payable, whether by lapse of time, upon redemption or prepayment, by extension or by acceleration or declaration, or otherwise, (ii)the full and prompt performance and observance by the Company of each and all of the covenants and agreements required to be performed or observed by the Company under the terms of the Agreement and the Notes, and (iii)payment, upon demand by any holder of the Notes, of all costs and expenses, legal or otherwise (including reasonable attorneys fees) and such expenses, if any, as shall have been expended or incurred in the protection or enforcement of any right or privilege under the Agreement, this Guaranty Agreementor any Note or in any consultation or action in connection therewith, and in each and every case irrespective of the validity, regularity, or enforcement of any of the Notes, the Agreement or any of the terms thereof or of any other like circumstance or circumstances (all of the obligations described in the foregoing clause (i), clause (ii) and clause (iii) being referred to herein as the Guaranteed Obligations).The guaranty of the Guaranteed Obligations herein provided for is a guaranty of the immediate and timely payment of the principal, interest, Make-Whole Amount, if any, and Net Loss, if any, on the Notes as and when the same are due and payable and shall not be deemed to be a guaranty only of the collectability of such payments and that in consequence thereof each holder of the Notes may sue the Guarantor directly upon such Guaranteed Obligations. The Guarantor agrees as a primary obligation to indemnify each holder of a Note from time to time on demand from and against any loss incurred by it as a result of the Agreement, any Notes and/or this Guaranty Agreement being or becoming void, voidable or unenforceable for any reason whatsoever, whether or not known to such holder of a Note, the amount of such loss being the amount which such holder of a Note would otherwise have been entitled to recover from the Guarantor."
"(c)Continuing Obligations.The obligations of the Guarantor hereunder shall be continuing obligations notwithstanding any settlement of account or other matter or thing whatsoever and, in particular but without limitation, shall not be considered satisfied by any intermediate payment or satisfaction of all or any of the Companys obligations under or in respect of any Note and the Agreement and shall continue in full force and effect until all sums due from the Company in respect of the Notes and the Agreement have been paid and all other obligations of the Company thereunder or in respect thereof have been satisfied, in full."
"(ii)any failure to present the Notes for payment or to demand payment thereof, or to give the Guarantor or the Company notice of dishonor for non-payment of the Notes, when and as the same may become due and payable, or notice of any failure on the part of the Company to do any act or thing or to perform or to keep any covenant or agreement by either of them to be done, kept or performed under the terms of the Notes or the Agreement;"
"(c)Each of the rights and remedies granted under this Guaranty Agreement to each holder in respect of the Notes held by such holder may be exercised by such holder without notice to, or the consent of or any other action by, any other holder.Each holder may proceed to protect and enforce this Guaranty Agreement by making the payment hereunder on demand, by suit or suits or proceedings in equity, at law or in bankruptcy, and whether for the specific performance of any covenant or agreement contained herein or in execution or aid of any power herein granted; or for the recovery of judgment for the obligations hereby guaranteed or for the enforcement of any other proper, legal or equitable remedy available under applicable law."
"(e)Notwithstanding anything to the contrary above, the Guarantor, by written notice to each holder of a Note, may terminate this Guaranty Agreement at any time and all obligations hereunder arising after the date of said termination in accordance with Section 9.8 of the Agreement, provided, that, at the time of and after giving effect to such termination, no Default or Event of Default shall have occurred and be continuing under the Agreement."
"(a)Organization and Authority: The Guarantor is a ____________ duly organized, validly existing and, to the extent such concept is recognized, in good standing under the laws of its jurisdiction of incorporation; the Guarantor has the corporate (or other appropriate) power and authority to own its properties and to conduct its business and is duly qualified as a foreign entity and, to the extent such concept is recognized, is in good standing in each other jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or, to the extent such concept is recognized, in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect."
"(e)Solvency.After giving effect to the execution and delivery of this Guaranty Agreement and taking into account (i) the likelihood of being required to perform this Guaranty Agreement and (ii) the fact that the Guarantor does not have any intention to defraud any of its creditors, the Guarantor is solvent and able to pay its debts as and when they become due and payable."
"(b)The Guarantor agrees, to the fullest extent permitted by applicable law, that a final judgment in any suit, action or proceeding of the nature referred to in Section 7(a) brought in any such court shall be conclusive and binding upon it subject to rights of appeal, as the case may be."
"(c)The Guarantor consents to process being served by or on behalf of any holder of Notes in any suit, action or proceeding of the nature referred to in Section 7(a) by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, return receipt requested, to it at its address specified in Section 8 or at such other address of which such holder shall then have been notified pursuant to said Section.The Guarantor agrees that such service upon receipt (i) shall be deemed in every respect effective service of process upon it in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted by applicable law, be taken and held to be valid personal service upon and personal delivery to it.Notices hereunder shall be conclusively presumed received as evidenced by a delivery receipt furnished by the United States Postal Service or any reputable commercial delivery service."
"(d)Nothing in this Section 7 shall affect the right of any holder of a Note to serve process in any manner permitted by law, or limit any right that the holders of any of the Notes may have to bring proceedings against the Guarantor in the courts of any appropriate jurisdiction or to enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction."
"All notices and communications provided for hereunder shall be in writing and sent (a)by telecopy if the sender on the same day sends a confirming copy of such notice by a recognized overnight delivery service (charges prepaid), or (b)by a recognized overnight delivery service (with charges prepaid)or (c) by email where the recipient has designated an email address for such purpose.Any such notice must be sent:"
"(a)This Guaranty Agreement may only be amended and compliance therewith waived (either generally or in a particular instance and either retroactively or prospectively) by an instrument in writing signed by the Guarantor and by the Required Holders; provided, that without the written consent of the holders of all of the Notes then outstanding, no such amendment or waiver shall be effective which will reduce the scope of the guaranty set forth in this Guaranty Agreement or amend the requirements of Sections 1, 2, 3, 4, 5, or 10 hereof or amend this Section 9.No such amendment or modification shall extend to or affect any obligation not expressly amended or modified or impair any right consequent thereon."
"(d)The Guarantor will maintain an office at the address of the Guarantor referred to in Section8, where notices, presentations and demands in respect hereof or of the Guaranteed Obligations may be made upon the Guarantor until such time as the Guarantor shall notify each holder of any change of location of such office."
"This STOCK PURCHASE AGREEMENT, dated as of May 29, 2016 (this Agreement), is by and between OCM Credit Portfolio LP, a limited partnership organized under the laws of Ontario (the Investor) and Great Plains Energy Incorporated, a Missouri corporation (the Company). Each of the Investor and the Company may be referred to from time to time in this Agreement as a Party and, together, as Parties."
"WHEREAS, prior to the date hereof, the Investor and OMERS Administration Corporation, a corporation organized under the laws of Ontario (OMERS Administration Corporation) have entered into an equity commitment letter (the Equity Commitment Letter), dated as of the date of this Agreement, pursuant to which OMERS Administration Corporation has, among other things, and subject to the terms and conditions thereof, committed to provide equity financing to the Investor in the amount set forth therein in connection with the transactions contemplated hereby; and"
"control (including the terms controlled by and under common control with) means, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, through the ownership of a majority of the outstanding voting securities or by otherwise manifesting the power to elect a majority of the board of directors or similar body governing the affairs of such Person."
"Hazardous Materials means (a) petroleum and petroleum products, radioactive materials, asbestos-containing materials, urea formaldehyde foam insulation, transformers or other equipment that contain polychlorinated biphenyls and radon gas, (b) any other chemicals, materials or substances defined as or included in the definition of hazardous substances, hazardous wastes, hazardous materials, extremely hazardous wastes, restricted hazardous wastes, toxic substances, toxic pollutants, contaminants or pollutants, or words of similar import, under any applicable Environmental Law, and (c) any other chemical, material or substance that is regulated by or subject of liability pursuant to any Environmental Law."
"(c) a true and complete copy, certified by the Secretary or an Assistant Secretary of the Company, without incurring personal liability, of the resolutions duly and validly adopted by the board of directors of the Company (the Company Board) evidencing its due authorization of the execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated thereby, including the issuance of the Acquired Series A Shares;"
"As an inducement to the Investor to enter into this Agreement, the Company hereby represents and warrants to the Investor, that, except as otherwise disclosed (i) in the Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2015 or any other reports and forms of the Company or its Subsidiaries filed with the SEC under Sections 12, 13, 14 or 15(d) of the Exchange Act after December 31, 2015 (excluding disclosures of risks included in any forward-looking statement disclaimers or other statements that are similarly non-specific and are predictive and forward-looking in nature) and on or before the date of this Agreement (the SEC Reports) or (ii) in a correspondingly identified schedule attached hereto (such schedules, collectively, the Disclosure Schedules):"
"(a) Each of the consolidated financial statements of the Company included in the SEC Reports complied at the time it was filed as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, was prepared in accordance with GAAP (except, in the case of unaudited quarterly financial statements, as permitted by Form 10-Q of the SEC) applied on a consistent basis during the periods and as of the dates involved (except as may be indicated in the notes thereto) and fairly presents in all material respects, in accordance with GAAP, 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 shown (subject, in the case of unaudited quarterly financial statements, to normal year-end audit adjustments)."
(d) (i) neither the Company nor any of its Subsidiaries had any liabilities for unpaid Taxes as of the date of the latest balance sheet included in the consolidated financial statements of the Company that had not been accrued or reserved on such balance sheet in accordance with GAAP and (ii) neither the Company nor any of its Subsidiaries has incurred any liability for Taxes since the date of the latest balance sheet included in the consolidated financial statements of the Company except in the ordinary course of business;
"Section 3.17 Compliance with Laws.The Company and its Subsidiaries are in compliance with, and conduct their businesses in conformity with, all applicable Law (including Anti-Corruption Laws), except where the failure to be in compliance or conformity would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.None of the Company, its Subsidiaries or their respective directors or officers, or to the Knowledge of the Company, their respective employees, agents, Affiliates, or representatives: (a)is a Designated Person, (b) is a Person that is owned or controlled by a Designated Person; (c)is located, organized or resident in a Sanctioned Country or (d) has directly or indirectly engaged in, or is now directly or indirectly engaged in, any dealings or transactions (i) with any Designated Person, (ii) in any Sanctioned Country, or (iii)otherwise in violation of Sanctions."
"(b) There is no pending or, to the Knowledge of the Company, threatened Action pursuant to any Environmental Law against the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has received written notice from any Person, including, but not limited to, any Governmental Authority, alleging that the Company or any of its Subsidiaries has been or is in violation or potentially in violation of any applicable Environmental Law or otherwise may be liable under any applicable Environmental Law, which violation or liability is unresolved. Neither the Company nor any of its Subsidiaries is a party or subject to any material Governmental Order pursuant to Environmental Law; and"
"(d) Except as disclosed in Schedule 3.20(d) of the Disclosure Schedules, as of the date of this Agreement or would, individually or in the aggregate, not reasonably be expected to have a Material Adverse Effect: (i) the Company and each of its Subsidiaries is not a party to any collective bargaining agreement or other contract or agreement with any labor organization or other representative of any of the employees of the Company or any Subsidiary, nor is any such contract or agreement presently being negotiated; (ii) no campaigns are being conducted to solicit cards from any of the employees of the Company or any of its Subsidiaries to authorize representation by any labor organization, and no such campaigns have been conducted within the past three years; (iii)no labor strike, slowdown, work stoppage, dispute, lockout or other labor controversy is in effect or threatened in writing, and neither the Company nor any of its Subsidiaries has experienced any such labor controversy within the past three years; (iv)no unfair labor practice charge or complaint is pending or threatened in writing with respect to any employment practices of the Company or any of its Subsidiaries; (v)no action, complaint, charge, inquiry, proceeding or investigation by or on behalf of any current or former employee, labor organization or other representative of the employees of the Company or any of its Subsidiaries (including persons employed jointly by such entities with any other staffing or other similar entity) is pending or threatened in writing; and (vi)the Company and each of its Subsidiaries are in compliance with all applicable Laws, agreements, contracts, policies, plans and programs relating to employment, employment practices, compensation, benefits, hours, terms and conditions of employment, and the termination of employment, the classification of employees as exempt or non-exempt from overtime pay requirements, the provision of meal and rest breaks and pay for all working time, and the proper classification of individuals as non-employee contractors or consultants."
"Section 3.22 No Brokers Fees. Neither the Company nor any of its Subsidiaries is a party to any contract, agreement or understanding with any person that would give rise to a valid claim against the Investor for a brokerage commission, finders fee or like payment in connection with the issuance and sale of the Acquired Series A Shares."
"Section 4.01 Due Organization of the Investor.The Investor has been duly organized and is validly existing as a limited partnership in good standing under the Law of Ontario and has all necessary power and authority to enter into this Agreement and the Investor Rights Agreement, to carry out its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. OMERS Administration Corporation has been duly organized and is validly existing as a corporation under the Law of Ontario and has all necessary power and authority to enter into the Equity Commitment Letter, to carry out its obligations thereunder, and to consummate the transactions contemplated thereby."
"(b) The Investor understands and acknowledges that its purchase of the Acquired Series A Shares involves a high degree of risk and uncertainty. The Investor has sought such accounting, legal and Tax advice as it has considered necessary to make an informed investment decision with respect to its investment in the Acquired Series A Shares."
"Section 4.10 No Brokers Fees. Neither the Investor nor any of its Affiliates is a party to any contract, agreement or understanding with any Person that would give rise to a valid claim against the Company for a brokerage commission, finders fee or like payment in connection with the issuance and sale of the Acquired Series A Shares."
"(a) Except as set forth in Section 5.01 of the Disclosure Schedules or otherwise contemplated or required by this Agreement, or as required by a Governmental Authority or by applicable Law, or with the prior written consent of the Investor (which consent shall not be unreasonably withheld, conditioned or delayed), from the date of this Agreement until the Closing Date, the Company shall not amend any of its organizational documents in a manner in any material respect that would affect the Investor in an adverse manner either as a holder of Series A Preferred Stock or with respect to rights of Investor under any of the Transaction Documents."
"(b) From the date of this Agreement until the Closing Date, none of the Investor or its Affiliates shall acquire Beneficially Ownership of 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 enter into any Hedging Arrangement or Derivative Contract."
"(a) make any material amendments or modifications to the Sky Merger Agreement or any equity or debt commitment letters in connection therewith, including (i) any change to the mix or amount of the merger consideration, (ii)any changes to the definition of Company Material Adverse Effect, (iii) the addition or deletion of any conditions to closing of the Sky Merger, (iv) any changes to Section 6.03(c) of the Sky Merger Agreement or the definition of Regulatory Material Adverse Effect therein, or (v) the addition of any terms or conditions directly applicable to the Investor or its Affiliates;"
"(a) From the date of this Agreement until the Closing Date, the Company may not issue, or agree to issue, to any Person in a private placement any Preferred Stock, Preferred No Par Stock or Preferred Par Value Stock in connection with the Companys financing of the Sky Merger on terms (other than terms reflecting a decrease in VWAP (as defined in the Series A Certificate) subsequent to the date of this Agreement) that are more favorable in the aggregate to such Person than the terms of the Series A Preferred Stock are to the Investor, unless prior to any such issuance, the Company notifies the Investor of the proposed issuance and the terms of such issuance in writing, and offers to amend the terms of the Series A Preferred Stock to reflect such more favorable terms. The Investor shall have ten (10) Business Days after receipt of such notice to elect to have the terms of the Series A Preferred Stock revised to reflect all or some of the more favorable terms. Upon such election by the Investor, the Company and the Investor shall amend the Series A Certificate to reflect the terms set forth in such election, and take all other actions necessary to provide that the Series A Preferred Stock, when issued, will reflect such more favorable terms."
"(b) At the request of the Investor and upon reasonable notice to the Company and at the Investors sole expense, the Company shall deliver to the Investor a certificate to the effect that the Company is not a United States Real Property Holding Corporation (USRPHC), as described under Treasury Regulations Section 1.897-2(h) if the Company is legally able to do so."
"(a) Representations and Warranties.Each Fundamental Representation of the Company shall be true and correct in all material respects or, where any statement in a Fundamental Representation of the Company includes a standard of materiality, such statement shall be true and correct in all respects as so qualified, in each case, as of the Closing Date as if made at and as of such date (except to the extent such Fundamental Representation is made as of an earlier date), and the representations and warranties of the Company contained in this Agreement that are not Fundamental Representations 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 or Material Adverse Effect) would not, individually or in the aggregate, constitute a Material Adverse Effect under clause (ii) of the definition thereof;"
"Section 8.01 Indemnification by the Company. From and after the Closing, the Company agrees to indemnify and hold harmless the Investor, its Affiliates and each of its and their respective Representatives (the Indemnified Investor Entities) in their respective capacities as such to the fullest extent lawful, from and against any and all losses, costs, liabilities, damages, Actions, fees and expenses of any kind or nature, including reasonable attorneys fees and disbursements and all other reasonable expenses, incurred in connection with investigating, defending or preparing to defend any such matter (collectively, Losses) arising out of or resulting from:"
"(ii) in no event shall any Partys aggregate liability to the Indemnified Parties of the other Party under Section8.01(a) (in the case of the Companys liability) or Section 8.02(a) (in the case of the Investors liability) exceed $75,000,000; provided that the foregoing provisions of this Section 8.03(b)(ii) shall not apply to limit any Losses incurred by an Indemnified Entity as a result of any inaccuracy in or breach of any of the Fundamental Representations, liability under which shall be limited to the Purchase Price."
"(iii) by the Company, if (A) the Investor shall have breached any representation, warranty, covenant or agreement set forth in this Agreement, (B) such breach or misrepresentation is not cured within thirty (30) days after the Investor receives written notice thereof from the Company (or such shorter period between the date of such notice and the Closing), and (C) such breach or misrepresentation would cause any of the conditions set forth in Section 6.02(a) or (b) not to be satisfied; or"
"Section 10.01 Expenses.Except as otherwise specified in this Agreement, all costs and expenses, including fees and disbursements of counsel, financial advisors and accountants, incurred (i) in connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the Party incurring such costs and expenses, whether or not the Closing shall have occurred and (ii) in connection with the Sky Merger shall be paid by the Company."
"Section 10.02 Public Announcements.Except as may be required by applicable Law, court process or any listing agreement with any national securities exchange, the Parties shall cooperate with each other in the development and distribution of all news releases and other public information disclosures with respect to this Agreement or the transactions contemplated hereby, and no Party will make any such news release or public disclosure without first consulting with the other Party."
"(a) Notwithstanding anything to the contrary that may be expressed or implied in this Agreement, and notwithstanding the fact that the Investor or its Affiliates or any of its or their successors or permitted assignees may be a partnership or a limited liability company, the Company, by its acceptance of the benefits hereof, covenants, agrees and acknowledges that no Person other than the Investor and OMERS Administration Corporation 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 Investor (or any of its successors or assignees), against any former, current or future general or limited partner, manager, member or stockholder of the Investor, 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(a) shall limit the Companys rights or remedies under the Investor Rights Agreement or the Equity Commitment Letter."
"SECTION 1. Designation and Number of Shares. There is hereby created out of the authorized and unissued shares of Preferred Stock of the Corporation a series of Preference Stock designated as the 7.25% Mandatory Convertible Preferred Stock, Series A (the Mandatory Convertible Preferred Stock). The number of shares constituting such series shall be 750,000. Such number of shares may be decreased by resolution of the Board of Directors, subject to the terms and conditions hereof and the requirements of applicable law; provided that no decrease shall reduce the number of shares of Mandatory Convertible Preferred Stock to a number less than the number of such shares then outstanding or which are issuable pursuant to any options or contracts. Each share of Mandatory Convertible Preferred Stock shall be identical in all respects to every other share of Mandatory Convertible Preferred Stock."
"(iv) the Common Stock (or, following a reorganization event (as defined below), any common stock, depositary receipts or other securities representing common equity interests into which the Mandatory Convertible Preferred Stock becomes convertible in connection with such reorganization event) ceases to be listed on any of the New York Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or any of their respective successors); or"
|  | $10.00 |  |  | $20.00 |  |  | $28.65 |  |  | $30.00 |  |  | $34.38 |  |  | $40.00 |  |  | $50.00 |  |  | $60.00 |  |  | $70.00 | |  | $80.00 |  |  | $95.00 |  |  | $110.00 |  [IssuanceDate]
"|  |  | 34.9026 |  |  |  | 34.9026 |  |  |  | 34.9026 |  |  |  | 33.3333 |  |  |  | 29.0855 |  |  |  | 29.0855 |  |  |  | 29.0855 |  |  |  | 29.0855 |  |  |  | 29.0855 |  |  |  | 29.0855 |  |  | | 29.0855 |  |  |  | 29.0855 |  The exact Stock Price and Effective Date may not be set forth in the table, in which case:"
"(iii) if the Stock Price is less than $10.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to the immediately succeeding paragraph), then the Fundamental Change Conversion Rate shall be the Maximum Conversion Rate, subject to adjustment pursuant to Section11\."
"The Stock Prices set forth in the first row of the table (i.e., the column headers) shall be adjusted as of any date on which the Fixed Conversion Rates are adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment multiplied by a fraction, the numerator of which is the Minimum Conversion Rate immediately prior to the adjustment giving rise to the Stock Price adjustment and the denominator of which is the Minimum Conversion Rate as so adjusted. Each of the Fundamental Change Conversion Rates in the table shall be subject to adjustment in the same manner as each Fixed Conversion Rate pursuant to Section11\."
"(D) redemptions, purchases or other acquisitions of shares of Common Stock or other Junior Stock in connection with the administration of any employee benefit plan or other incentive plan, including employment contracts, in the ordinary course of business (including purchases of shares of Common Stock in lieu of tax withholding and purchases of shares of Common Stock to offset the Share Dilution Amount pursuant to a publicly announced repurchase plan); provided that any purchases to offset the Share Dilution Amount shall in no event exceed the Share Dilution Amount;"
"(a) Each outstanding share of Mandatory Convertible Preferred Stock shall automatically convert on the Mandatory Conversion Date into a number of shares of Common Stock equal to the Conversion Rate, unless such share of Mandatory Convertible Preferred Stock has been converted prior to the Mandatory Conversion Date in the manner described in Section6 or Section7\."
"(iv) whether the Corporation has elected to pay all or any portion of accumulated and unpaid dividends in shares of Common Stock or Units of Exchange Property, as the case may be, and, if so, the portion thereof (as a percentage) that will be paid in shares of Common Stock or Units of Exchange Property."
"(c) To effect a Fundamental Change Conversion, the converting Holder must submit its Mandatory Convertible Preferred Stock for conversion and comply with the applicable conversion procedures set forth in Section8 at any time during the Fundamental Change Conversion Period. Holders who do not submit Mandatory Convertible Preferred Stock for conversion during the Fundamental Change Conversion Period will not be entitled to convert their Mandatory Convertible Preferred Stock at the Fundamental Change Conversion Rate or to receive the Fundamental Change Dividend Make-whole Amount or, in connection with the Fundamental Change, the Accumulated Dividend Amount. To the extent a Holder does not convert its shares of Mandatory Convertible Preferred Stock pursuant to this Section7 and a Reorganization Event has occurred, in lieu of shares of Common Stock, the Corporation shall pay or deliver, as the case may be, to such Holder on the Mandatory Conversion Date, Units of Exchange Property as determined in accordance with Section11(e)."
"(A) pay the Holder in cash, to the extent the Corporation is legally permitted to do so, the present value, computed using a discount rate of 4.75%per year, of all dividend payments on the Holders Mandatory Convertible Preferred Stock for all the remaining Dividend Periods (excluding any accumulated and unpaid dividends for all Dividend Periods ending on or prior to the Dividend Payment Date preceding the Effective Date of the Fundamental Change as well as dividends accumulated to the Effective Date of the Fundamental Change) from such Effective Date to but excluding the Mandatory Conversion Date (the Fundamental Change Dividend Make-whole Amount);"
"(c) If more than one share of the Mandatory Convertible Preferred Stock is surrendered for conversion at one time by or for the same Holder, the number of full shares of Common Stock, or, if applicable, other common stock or full ADRs, issuable upon conversion thereof shall be computed on the basis of the aggregate number of shares of Mandatory Convertible Preferred Stock so surrendered for conversion. If the Corporation pays dividends in Common Stock, other common stock or ADRs pursuant to Section4(b) on more than one share of Mandatory Convertible Preferred Stock held at any one time by or for the same Holder, the number of full shares of Common Stock, or, if applicable, other common stock or full ADRs, payable in connection with such dividend shall be computed on the basis of the aggregate number of shares of Mandatory Convertible Preferred Stock so surrendered for conversion."
"| | ---|---|--- CR0= |  | the Fixed Conversion Rate in effect immediately prior to 5:00 p.m., New York City time, on the Record Date for such dividend or distribution or immediately prior to 9:00 a.m., New York City time, on the effective date for such subdivision or combination, as the case may be; | CR1= |  | the Fixed Conversion Rate in effect immediately after 5:00 p.m., New York City time, on such Record Date or immediately after 9:00 a.m., New York City time, on such effective date, as the case may be; | OS0 = |  | the number of shares of Common Stock outstanding immediately prior to 5:00 p.m., New York City time, on such Record Date or immediately prior to 9:00 a.m., New York City time, on such effective date, as the case may be (and prior to giving effect to such event); and | OS1 = |  | the number of shares of Common Stock that would be outstanding immediately after, and solely as a result of, such dividend, distribution, subdivision or combination. Any adjustment made under this Section11(a)(i) shall become effective immediately after 5:00 p.m., New York City time, on the Record Date for such dividend or distribution, or immediately after 9:00 a.m., New York City time, on the effective date for such subdivision or combination, as the case may be. If any dividend, distribution, subdivision or combination of the type described in this clause (i)is declared but not so paid or made, each Fixed Conversion Rate shall be immediately readjusted, effective as of the earlier of (a)the date the Board of Directors determines not to pay or make such dividend, distribution, subdivision or combination and (b)the date the dividend or distribution was to be paid or the date the subdivision or combination was to have been effective, to the Fixed Conversion Rate that would then be in effect if such dividend, distribution, subdivision or combination had not been declared."
"(ii) If the Corporation issues to all or substantially all holders of the Common Stock any rights, options or warrants entitling them for a period expiring 60 days or less from the date of issuance of such rights, options or warrants to subscribe for or purchase shares of Common Stock at less than 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, each Fixed Conversion Rate will be increased 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 dividend or distribution; | | CR1 |  | = |  | the Fixed Conversion Rate in effect immediately after 5:00 p.m., New York City time, on such Record Date; | | SP0 |  | = |  | 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 Ex-Dividend Date for such dividend or distribution; and | | FMV |  | = |  | the fair market value (as determined in good faith by the Board of Directors upon advice of a nationally recognized independent investment banking firm retained by the Corporation for such purpose) on the Ex-Dividend Date for such dividend or distribution 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, expressed as an amount per share of Common Stock. If the Board of Directors determines the FMV (as defined in this Section11(a)(iii)) of any dividend or other distribution for purposes of this Section11(a)(iii) by referring to the actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market over 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 Record Date for such dividend or distribution."
"| | | | ---|---|---|---|--- CR0 |  | = |  | the Fixed Conversion Rate in effect at 5:00 p.m., New York City time, on the tenth Trading Day immediately following, and including, the Ex-Dividend Date for such dividend or distribution; | | CR1 |  | = |  | the Fixed Conversion Rate in effect immediately after 5:00 p.m., New York City time, on the tenth Trading Day immediately following, and including, the Ex-Dividend Date for such dividend or distribution; | | FMV0 |  | = |  | the Average VWAP per share of such capital stock or similar equity interests distributed to holders of the Common Stock applicable to one share of Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Ex-Dividend Date for such dividend or distribution; and | | MP0 |  | = |  | the Average VWAP per share of Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Ex-Dividend Date for such dividend or distribution. The adjustment to each Fixed Conversion Rate under the immediately preceding paragraph shall occur at 5:00 p.m., New York City time, on the 10th consecutive Trading Day immediately following, and including, the Ex-Dividend Date for such dividend or distribution, but will be given effect as of 9:00 a.m., New York City time, on the date immediately following the Record Date for such dividend or distribution. The Corporation shall delay the settlement of any"
"(B) If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the Issue Date, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof)."
"(1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section11(a)(iii) is applicable (the Clause C Distribution) and any Fixed Conversion Rate adjustment required by this Section11(a)(iii) with respect to such Clause C Distribution shall then be made; and"
"Any adjustment to the Fixed Conversion Rates pursuant to this Section11(a)(iv) shall become effective immediately after 5:00 p.m., New York City time, on the Record Date for such distribution. If such distribution is not so paid, the Fixed Conversion Rates shall be decreased, effective as of the earlier of (a)the date the Board of Directors determines not to pay such dividend and (b)the date such dividend was to have been paid, to the Fixed Conversion Rates that would then be in effect if such distribution had not been declared."
"in each case as a result of which the shares of Common Stock are exchanged for, or converted into, other securities, property or assets (including cash or any combination thereof) (any such event, a Reorganization Event), then, at the effective time of such Reorganization Event, each share of Mandatory Convertible Preferred Stock outstanding immediately prior to such Reorganization Event shall, without the consent of Holders, become convertible into the kind and amount of such other securities, property or assets (including cash or any combination thereof) that holders of the Common Stock received in such Reorganization Event (the Exchange Property), and, at the effective time of such Reorganization Event, the Corporation shall amend the Certificate of Designations to provide for such change in the convertibility of the Mandatory Convertible Preferred Stock; provided that if the kind and amount of Exchange Property receivable upon such Reorganization Event is not the same for each share of Common Stock held immediately prior to such Reorganization Event by a Person, then the Exchange Property receivable upon such Reorganization Event shall be the Exchange Property elected by Holders of a majority in voting power of the shares of Mandatory Convertible Preferred Stock at the time outstanding. The Conversion Rate then in effect shall be applied on the applicable Conversion Date to the amount of such Exchange Property received per share of Common Stock in the Reorganization Event (a Unit of Exchange Property), as determined in accordance with this Section11(e). For the purpose of determining which clause of the definition of Conversion Rate shall apply on the Mandatory Conversion Date and for the purpose of calculating the Conversion Rate if clause (ii)of the definition thereof is applicable, the value of a Unit of Exchange Property shall be determined in good faith by the Board of Directors upon advice of a nationally recognized independent investment banking firm retained by the Corporation for such purpose, except that if a Unit of Exchange Property includes common stock or American Depositary Receipts (ADRs) that are traded on a U.S. national securities exchange, the value of such common stock or ADRs shall be the Applicable Market Value determined with regard to a share of such common stock or a single ADR, as the case may be (or for the purpose of determining the Stock Price on a Fundamental Change Holder Conversion Date, the value of such common stock or ADRs shall be the Five-Day Average VWAP determined with regard to a share of such common stock or a single ADR, as the case may be). For the purpose of paying accumulated and unpaid dividends in Units of Exchange Property in accordance with Section4, the value of a Unit of Exchange Property (other than cash) shall equal 90% of the value determined pursuant to the immediately preceding sentence."
"(a) Voluntary or Involuntary Liquidation. In the event of any liquidation, dissolution or winding up of the affairs of the Corporation, whether voluntary or involuntary, each Holder shall be entitled to receive for each share of Mandatory Convertible Preferred Stock, out of the assets of the Corporation or proceeds thereof (whether capital or surplus) available for distribution to stockholders of the Corporation, subject to the rights of any creditors of the Corporation, before any payment or distribution of such assets or proceeds is made to or set aside for the holders of Common Stock and any other Junior Stock of the Corporation, payment in full in an amount equal to the sum of (x)the Initial Liquidation Preference and (y)an amount equal to any accumulated and unpaid dividends on each share of Mandatory Convertible Preferred Stock, whether or not declared, to (but not including) the date fixed for liquidation, dissolution or winding up (such amounts collectively, the Liquidation Preference)."
"(ii) Amendment of Mandatory Convertible Preferred Stock. Any amendment, alteration or repeal of any provision of this Certificate of Designations or the Charter (including, unless no vote on such merger or consolidation is required by Section14(c)(iii), any amendment, alteration or repeal by means of a merger, consolidation or otherwise) so as to adversely affect the rights, preferences, privileges or voting powers of the Mandatory Convertible Preferred Stock; or"
"This Section21(a) shall apply only to a Global Preferred Share deposited with or on behalf of the Depositary. The Corporation shall execute and the Registrar shall, in accordance with this Section21(a), countersign and deliver any Global Preferred Shares that (i)shall be registered in the name of Cede& Co. or other nominee of the Depositary and (ii)shall be delivered by the Registrar to Cede& Co. or pursuant to instructions received from Cede& Co. or held by the Registrar as custodian for the Depositary pursuant to an agreement between the Depositary and the Registrar. Members of, or participants in, the Depositary (Agent Members) shall have no rights under this Certificate of Designations with respect to any Global Preferred Share held on their behalf by the Depositary or by the Registrar as the custodian of the Depositary, or under such Global Preferred Share, and the Depositary may be treated by the Corporation, the Registrar and any agent of the Corporation or the Registrar as the absolute owner of such Global Preferred Share for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Corporation, the Registrar or any agent of the Corporation or the Registrar from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices of the Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global Preferred Share. The Holder of the Global Preferred Shares may grant proxies or otherwise authorize any Person to take any action that a Holder is entitled to take pursuant to the Global Preferred Shares, this Certificate of Designations or the Charter."
"SECTION 23. Ranking. Notwithstanding anything in this Certificate of Designations to the contrary, the Mandatory Convertible Preferred Stock will, with respect to dividend rights and rights to distribution of assets upon the liquidation, winding-up or dissolution of the Corporation rank (i)senior to any Junior Stock, (ii)on parity with any Parity Stock and (iii)junior to any Senior Stock and the Corporations existing and future indebtedness and other liabilities (including trade payables)."
"The undersigned hereby irrevocably elects to convert (the Conversion) [] shares of 7.25% Mandatory Convertible Preferred Stock, Series A (the Mandatory Convertible Preferred Stock), of Great Plains Energy Incorporated (the Corporation), represented by stock certificate No(s). [] (the Mandatory Convertible Preferred Stock Certificate(s)), into shares of common stock, without par value, of the Corporation (the Common Stock) according to the conditions of the Certificate of Designations establishing the terms of the Mandatory Convertible Preferred Stock (the Certificate of Designations), as of the date written below. If shares of Common Stock are to be issued in the name of a person other than the undersigned, the undersigned shall pay all transfer taxes payable with respect thereto, if any. Each Mandatory Convertible Preferred Stock Certificate (or evidence of loss, theft or destruction thereof) is attached hereto."
"WHEREAS, pursuant to the Stock Purchase Agreement, dated as of May , 2016 (the Purchase Agreement), by and between Purchaser and Prairie, among other things, Prairie is issuing to Purchaser on the date hereof 750,000 shares of Series A Preferred Stock (as defined below), on the terms and conditions set forth in the Purchase Agreement; and"
"Derivatives Contract means a contract between two parties (the Receiving Party and the Counterparty) that is designed to produce economic benefits and risks to the Receiving Party that correspond substantially to the ownership by the Receiving Party of a number of shares of Common Stock or Series A Preferred Stock specified or referenced in such contract (the number corresponding to such economic benefits and risks, the Notional Shares),"
Holder means (a) Purchaser unless and until Purchaser ceases to hold any Registrable Securities and (b) any Person that holds Registrable Securities to whom registration rights conferred by this Agreement have been transferred in compliance with Section 14(e); provided that any Person referenced in clause (b) shall be a Holder only if such Person agrees in writing to be bound by and subject to the terms set forth in this Agreement.
| | ---|---|--- Agreement |  | Preamble Blackout Period |  | 2(b)(iv) Charter |  | 9(b) Demand Notice |  | 2(b)(i) Demand Registration |  | 2(b)(i) Designated Director |  | 8(a)(ii) Effectiveness Period |  | 2(b)(ii) FERC |  | 7(f) FPA |  | 7(f) Holder Indemnified Persons |  | 5(a) Initiating Holder |  | 2(b)(i) Losses |  | 5(a) Nominee Qualifications |  | 8(a)(ii) Nonpayment |  | 8(a)(i) Non-Recourse Parties |  | 13(m) NRC |  | 7(f) Other Investments |  | 11 Parties |  | Preamble Piggyback Notice |  | 2(c)(i) Piggyback Registration |  | 2(c)(i) Piggyback Request |  | 2(c)(i) Prairie |  | Preamble Prairie Indemnified Persons |  | 5(b) Purchase Agreement |  | Recitals Purchaser |  | Preamble Purchaser Employee |  | 8(d) Purchaser Group |  | 11 Purchaser Indemnitee |  | 13(l) Purchaser Indemnitors |  | 13(1) Registration Expenses |  | 4 Renounced Business Opportunities |  | 11 Shelf Registration |  | 2(a)(i) Shelf Takedown |  | 2(a)(iii)(1) Shelf Takedown Request |  | 2(a)(iii)(1) Suspension Notice |  | 12(b) Suspension Period |  | 12(b) Underwritten Offering |  | 3(k) Underwritten Offering Notice |  | 3(k) Underwritten Shelf Takedown |  | 2(a)(iii)(2) (c) Construction; Interpretation.
pursuant to Rule 415 of the Securities Act relating to the offer and sale from time to time of all of the Holders Registrable Securities (the Shelf Registration) in accordance with the methods of distribution elected by the Holders and set forth in the Shelf Registration Statement and shall use its reasonable best efforts to cause such Shelf Registration Statement to be declared effective.
"(iii) Subject to the other limitations contained in this Agreement, Prairie is not obligated hereunder to effect (A) more than one (1) Demand Registration in any six (6) month period pursuant to this Agreement, (B) more than a total of three (3) Demand Registrations pursuant to this Agreement (including any Underwritten Offering pursuant to an Underwritten Offering Notice under Section 3(k)) or (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the Securities Act and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice."
"(viii) In the event a Holder transfers Registrable Securities to another Holder included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the reasonable request of such Holder, Prairie shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall Prairie be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by such Holder or another Holder or (B) Prairie has received written consent therefor from whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than such Holder or another Holder, but in no event shall the foregoing otherwise affect the right of such Holder as a successor beneficiary of this Agreement."
"(ii) If the Registration Statement under which Prairie gives notice under this Section 2(c) is for an underwritten offering, Prairie shall so advise the Holders of Registrable Securities. In such event, the right of any such Holder to be included in a registration pursuant to this Section 2(c) shall be conditioned upon such Holders participation in such underwriting and the inclusion of such Holders Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by Prairie. If the managing underwriter or managing underwriters of such offering advise Prairie and the Holders in writing that in their reasonable opinion the inclusion of all of the Holders Registrable Securities in the subject Registration Statement (or any other Common Stock proposed to be included in such offering) would likely have an adverse effect in any material respect on the price, timing or distribution of Common Stock proposed to be included in such offering, Prairie shall include in such offering only that number of shares of Common Stock proposed to be included in such offering that, in the reasonable opinion of the managing underwriter or managing underwriters, will not have such effect, with such number to be allocated as follows: (A) first, to Prairie and/or any holder exercising demand registration rights pursuant to which the offering is being proposed, (B) if there remains availability for additional shares of Common Stock to be included in such registration, second pro rata among all Holders desiring to register Registrable Securities and other holders of Common Stock exercising piggyback rights under other registration rights agreements with Prairie in effect and with respect to shares of Common Stock held as of the date of this Agreement, based on the number of Registrable Securities held by all such Holders and other holders of Common Stock, and (C) if there remains availability for additional shares of Common Stock to be included in such registration, third pro rata among all other holders of Common Stock who may be seeking to register such Common Stock based on the number of shares of Common Stock such holder is entitled to include in such registration. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to Prairie and the managing underwriter(s) delivered on or prior to the time of the commencement of such offering. Any Registrable Securities withdrawn from such underwriting shall be excluded and withdrawn from the registration."
"(c) Prairie will use reasonable best efforts to as promptly as reasonably practicable (i) prepare and file with the Commission such amendments, including post-effective amendments, and supplements to each Registration Statement and the Prospectus used in connection therewith as may be necessary under applicable Law to keep such Registration Statement continuously effective with respect to the Disposition of all Registrable Securities covered thereby for its Effectiveness Period (or, with respect to a Shelf Registration, the Shelf Period) and, subject to the limitations contained in this Agreement, prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities held by the Holders; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424; and (iii) respond to any comments received from the Commission with respect to each Registration Statement or any amendment thereto and, as promptly as reasonably practicable provide such Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement that pertains to such Holders as selling Holders but not any comments that would result in the disclosure to such Holders of material and non-public information concerning Prairie."
"(j) Prairie will cooperate with such Holders to facilitate the timely preparation and delivery of book-entry interests representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which book-entry interests shall be free of all restrictive legends indicating that the Registrable Securities are unregistered or unqualified for resale under the Securities Act, Exchange Act or other applicable securities Laws, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holder may request in writing. In connection therewith, if required by Prairies transfer agent, Prairie will promptly, after the Effective Date of any Registration Statement, cause an opinion of counsel as to the effectiveness of the Registration Statement to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without any such legend upon sale by the Holder of such Registrable Securities under such Registration Statement."
"(l) Such Holders may distribute the Registrable Securities by means of an underwritten offering; provided that (i) in the case of a Demand Registration or Shelf Registration, the Initiating Holder provides written notice to Prairie of its intention to distribute Registrable Securities by means of an underwritten offering, which for the avoidance of doubt in the case of a Demand Registration, may be made at a date later than the original Demand Notice (the Underwritten Offering Notice and such underwritten offering being referred to herein as an Underwritten Offering), and, in the case of a Piggyback Registration, the electing Holders must include their Registrable Securities in an underwritten offering if the Piggyback Notice so requires, (ii) the right of any Holder to include such Holders Registrable Securities in such registration shall be conditioned upon such Holders participation in such underwriting and the inclusion of such Holders Registrable Securities in the underwriting to the extent provided herein, (iii) the managing underwriter or managing underwriters thereof shall be designated by"
"the Initiating Holder in the case of a Demand Registration and the Holders holding a majority of the Registrable Securities (measured taking into account the Series A Preferred Stock on an as-converted basis) in the case of a Shelf Registration (provided, however, that such designated managing underwriter or managing underwriters shall be reasonably acceptable to Prairie), by Prairie in the case of a registration initiated by Prairie or by such other holder in the case of a registration initiated by another holder, (iv) each Holder participating in such underwritten offering agrees to enter into an underwriting agreement in customary form and sell such Holders Registrable Securities on the basis provided in any underwriting arrangements approved by the Persons entitled to select the managing underwriter or managing underwriters hereunder and (v) each Holder participating in such underwritten offering completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements. Prairie hereby agrees with each Holder that, in connection with any Underwritten Offering in accordance with the terms hereof, it will negotiate in good faith and execute all indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements. If, in the case of an Underwritten Offering, the managing underwriter advises Prairie that the inclusion of all of the Holders Registrable Securities in the subject Underwritten Offering would likely have an adverse effect in any material respect on the price, timing or distribution of Registrable Securities proposed to be included in such Underwritten Offering, then Prairie shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of Registrable Securities that may be included in the Underwritten Offering shall be allocated as provided herein with respect to the applicable form of Offering. Any Registrable Securities excluded from such Underwritten Offering shall be withdrawn from the Underwritten Offering. In the event that the managing underwriter limits the number of Registrable Securities to be included in the Underwritten Offering pursuant to this Section 3(k) such that at less than one-half (1/2) of the aggregate Registrable Securities set forth in such Holders written requests pursuant to this Section 3(k) are included in the Underwritten Offering, such Underwritten Offering shall not be considered to be a Demand Registration for purposes of the limitations set forth in Section 2(a)(iii) and an Underwritten Offering for purposes of the limitations set forth in this Section3(k). For the avoidance of doubt, Piggyback Registration shall not be considered to be a Demand Registration. In the case of an Underwritten Offering, the price, underwriting discount and other financial terms for the Registrable Securities shall be determined by the Holders. In addition, in the case of any Underwritten Offering, each of the Holders may withdraw all or part of their request to participate in the registration after being advised of such price, discount and other terms and shall not be required to enter into any agreements or documentation that would require otherwise. Prairie shall not be obligated to take any action to effect any Underwritten Offering (i) if an Underwritten Offering (including an Underwritten Shelf Takedown) was consummated within the preceding forty-five (45) days (unless otherwise consented to by Prairie and approved by Prairies Board) or (ii) during a Blackout Period."
"(n) In the case of an Underwritten Offering, upon the request of the applicable underwriter or underwriters, (i) Prairie shall obtain for delivery to the managing underwriter or underwriters, with copies to the Holders, a cold comfort letter from Prairies independent certified public accountants or independent auditors (and, if necessary, any other independent certified public accountants or independent auditors of any subsidiary of Prairie or any business acquired by Prairie for which financial statements and financial data are, or are required to be, included in the Registration Statement) in customary form and covering such matters of the type customarily covered by cold comfort letters as the managing underwriter or underwriters reasonably request, dated the date of execution of any underwriting or similar agreement and brought down to the closing under the such agreement or, if no such agreement is executed, upon the closing of the applicable sale of the Registrable Shares, and (b) Prairie shall obtain the required consents from Prairies independent certified public accountants and, if applicable, independent auditors to include the accountants or auditors report, as applicable, relating to the specified financial statements in the Registration Statement and to be named as an expert in the Registration Statement."
"(a) Prairie shall indemnify and hold harmless each Holder, its Affiliates and any Person who controls any such Holder (within the meaning of the Securities Act) and the officers, directors, members, managers, stockholders, partners, agents and employees of each of them (collectively, Holder Indemnified Persons), to the fullest extent permitted by applicable Law, from and against any and all losses, claims, damages, liabilities, joint or several, costs (including reasonable costs of preparation and reasonable attorneys fees) and expenses, judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which any Holder Indemnified Person may be involved, or is threatened to be involved, as a party or otherwise, under the Securities Act or otherwise (collectively, Losses), as incurred, arising out of or relating to any untrue or alleged untrue statement of a material fact contained in any Registration Statement under which any Registrable Securities were registered, in any preliminary prospectus (if Prairie authorized the use of such preliminary prospectus prior to the Effective Date), or in any summary or final prospectus or free writing prospectus (if such free writing prospectus was authorized for use by Prairie) or in any amendment or supplement thereto (if used during the period Prairie is required to keep the Registration Statement current), or arising out of, based upon or resulting from the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein (in the case of any preliminary prospectus, final prospectus or free writing prospectus, in the light of the circumstances in which they were made) not misleading; provided, however, that Prairie shall not be liable to any Holder Indemnified Person to the extent that any such claim arises out of, is based upon or results from (i) an untrue or alleged untrue statement or omission or alleged omission made in such Registration Statement, such preliminary, summary or final prospectus or free writing prospectus or such amendment or supplement, in reliance upon and in conformity with written information furnished to Prairie by or on behalf of such Holder Indemnified Person specifically for use in the preparation thereof or (ii) any Disposition of Registrable Securities during a Suspension Period. Prairie shall notify the Holders promptly of the institution, threat or assertion of any Proceeding of which Prairie is aware in connection with the transactions contemplated by this Agreement."
"(e) For so long as any Holder and its Affiliates Beneficially Own in the aggregate at least 5% of the then-outstanding Common Stock, in connection with any underwritten offering of Equity Securities, such Holder and its Affiliates will agree, upon the request of Prairie, to enter into a customary lock-up agreement with the managing underwriters of such offering, provided, however, that the lock-up period under such agreement shall not exceed ninety (90) days and shall be no more restrictive than any lock-up arrangement entered into by the officers and directors of Prairie or any other Stockholder that holds at least 5% of the then-outstanding Common Stock."
"(i) Prior to a Termination Event, whenever dividends on any shares of Series A Preferred Stock have not been paid in cash or in shares of Common Stock in the aggregate amount equivalent to at least two or more dividend payments (a Nonpayment), the Board shall adopt resolutions that increase the number of natural persons that constitute the whole Board by two (2) persons, and appoint two (2) individuals selected by Purchaser to such two (2) vacancies, provided that each such individual shall satisfy the Nominee Qualifications."
"(b) So long as any shares of Purchased Stock are outstanding, in addition to any other vote or consent of stockholders required by law or by the Articles of Incorporation of Prairie, as amended (the Charter), the affirmative vote or consent of all of the Holders, given in person or by proxy, either by vote at any meeting called for such purpose, or by written consent in lieu of such meeting, shall be necessary for effecting or validating: (i) any amendment or alteration of the Charter to increase the Board of Directors beyond thirteen (13) members, or (ii) any redemption or repurchase of Preferred Stock prior to the three (3) year anniversary of the date hereof other than with respect to any Preferred Stock outstanding as of May 11, 2016."
"(b) Discontinued Disposition. Each Holder agrees that, upon receipt of a notice from Prairie of the occurrence of any Blackout Period or any event of the kind described in clauses (ii) through (v) of Section 3(e) (a Suspension Notice), such Holder will forthwith discontinue Disposition of such Registrable Securities under any Registration Statement until such Holders receipt of the copies of the supplemental Prospectus or amended Registration Statement as contemplated by Section 3(j) or until it is advised in writing by Prairie that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement (a Suspension Period). Prairie may provide appropriate stop orders to enforce the provisions of this Section 13(b)."
"(d) 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 (i) the date of transmission, if such notice or communication is delivered via facsimile or electronic mail as specified in this Section 13(d) prior to 5:00 p.m."
"(g) Execution and Counterparts. This Agreement may be executed in any number of 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. In the event that any signature is delivered by facsimile or electronic mail transmission, such signature shall create a valid binding obligation of the Party executing (or on whose behalf such signature is executed) the same with the same force and effect as if such signature delivered by facsimile or electronic mail transmission were the original thereof."
"based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement), shall be governed by, and construed in accordance with, the internal Laws of the State of New York, without reference to the choice of law provisions thereof; provided that with respect to matters of law concerning the internal corporate affairs of Prairie that are the subject of this Agreement, such matters shall be governed by the Laws of Missouri. All claims, causes of action, suits, actions or proceedings shall be raised to and exclusively determined by any state or federal court located in the City of New York, and in each case, any appellate court from any decision thereof, to whose exclusive jurisdiction and venue the Parties unconditionally consent and submit. Service of process in connection with any such claim, cause of action suit, action or proceeding may be served on each Party anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each of the Parties irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY."
"5\. Assuming the accuracy of the representations and warranties of the Investors in Section 4.09 of the Agreement, the offer, sale and delivery of the Acquired Series A Shares to the Investor in the manner contemplated by the Agreement does not require registration under the Securities Act, it being understood that we do not express any opinion with respect to any subsequent reoffer or resale of any Acquired Series A Share."
"(i) As payment in full for the 7,300,000 Sponsor Warrants being purchased under this Agreement, the Purchasers shall pay $3,650,000 (the Purchase Price), allocated among the Purchasers as set forth in Schedule A hereto, 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) at a financial institution to be chosen by the Company, 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 to be filed in connection with the Public Offering (the Registration Statement)."
"(ii) At or prior to the time of the Initial Closing Date, the Company and the Purchasers shall enter into a registration rights agreement (the Registration Rights Agreement) pursuant to which the Company will grant certain registration rights to the Purchasers relating to the Sponsor Warrants and the Shares underlying the Sponsor Warrants."
"A.Organization and Corporate Power. The Company is a company duly organized, validly existing and in good standing under the laws of the Republic of the Marshall Islands and is qualified to do business in every jurisdiction in which the failure to so qualify would reasonably be expected to have a material adverse effect on the financial condition, operating results or assets of the Company. The Company possesses all requisite corporate power and authority necessary to carry out the transactions contemplated by this Agreement and the Warrant Agreement."
"C.Title to Securities. Upon issuance in accordance with, and payment pursuant to, the terms hereof and the Warrant Agreement, the Shares issuable upon exercise of the Sponsor Warrants will be duly and validly issued, fully paid and nonassessable. Upon issuance in accordance with, and payment pursuant to, the terms hereof and the Warrant Agreement, the Purchasers will have good title to the Sponsor Warrants and the Shares issuable upon exercise of such Sponsor Warrants, free and clear of all liens, claims and encumbrances of any kind, other than (i)transfer restrictions hereunder and under the other agreements contemplated hereby, (ii)transfer restrictions under federal and state securities laws, and (iii)liens, claims or encumbrances imposed due to the actions of the Purchasers."
"C.No Injunction. No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby, which prohibits the consummation of any of the transactions contemplated by this Agreement or the Warrant Agreement."
"B.Severability. Whenever possible, each provision of this Agreement shall 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 prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement."
"Reference is hereby made to (i) that certain Fourth Amended and Restated Note Purchase and Private Shelf Agreement, dated as of April 27, 2016 (as amended, restated, supplemented, or modified from time to time, the Note Purchase Agreement) by and among the Issuer and the Company, on the one hand, and the Noteholders, on the other hand, pursuant to which, among other things, (A) the Issuer issued and sold to the Series A Purchasers its 3.35% Series A Senior Notes due March 20, 2020, in the aggregate original principal amount of $50,000,000 (as amended, restated, amended and restated, supplemented or otherwise modified and as in effect from time to time and including any such notes issued in substitution or exchange therefor, collectively, the Series A Notes) and (B) subject to the terms and conditions set forth therein, certain affiliates of Prudential (the Prudential Affiliates) may, in their sole discretion and within limits which may be prescribed for purchase by them from time to time, purchase additional senior secured promissory notes issued by the Issuer in the aggregate principal amount from time to time provided for therein (as amended, restated, amended and restated, supplemented or otherwise modified and as in effect from time to time and including any such notes issued in substitution or exchange therefor, collectively, the Shelf Notes and, together with the Series A Notes, collectively, the Notes), and (ii) that certain Amended and Restated Subordination Agreement dated as of February 24, 2014 (as the same has been amended to date, the Existing Subordination Agreement), which instrument the parties agree is being amended and restated hereby in its entirety. Capitalized terms used herein and not otherwise defined shall have the respective meanings ascribed to such terms in the Note Purchase Agreement."
"(b) After the occurrence and during the continuation of a Default or Event of Default or any event described in paragraphs 2(b) or 2(c), should any payment or distribution or collateral security or proceeds of any collateral security be received or collected by the holder of any Subordinated Debt for or on account of any Subordinated Debt, prior to the time that all Senior Obligations have been fully, finally, and indefeasibly paid in cash and the Facility has been terminated, such holder of Subordinated Debt shall forthwith deliver the same to the Noteholders, in precisely the form received (with the endorsement of such holder of Subordinated Debt where necessary), for application on account of the Senior Obligations (or, in the case of collateral security, delivery to the Notes Collateral Agent, for such application thereby) and such holder of Subordinated Debt agrees that, until so delivered, the same shall be deemed received by such holder of Subordinated Debt as trustee for the Noteholders in trust for the Noteholders; and in the event of the failure of such holder of Subordinated Debt to endorse any instrument for the payment of money so received payable to its order, the Noteholders or any officer or employee thereof is hereby irrevocably constituted and appointed attorney in fact for such holder of Subordinated Debt, with full power (coupled with an interest and with full power of substitution) to make any such endorsement. In the event that such holder of Subordinated Debt fails to make such delivery, such holder of Subordinated Debt agrees to immediately pay to the Noteholders an amount equivalent to any such payment or the value of such security received."
"Section 7 No Transfer. Each Subordinated Creditor represents and warrants to the Noteholders that such Subordinated Creditor has not granted any security interest in or made any other transfer or assignment of any Subordinated Debt (except to the Notes Collateral Agent for the ratable benefit of the Noteholders and agrees that such Subordinated Creditor will not grant a security interest in, or Lien upon, any of its properties or assets in respect of any Subordinated Debt (whether now outstanding or hereafter arising) or make any other sale, transfer or assignment of any Subordinated Debt other than to another Subordinated Creditor or as permitted under the Note Agreement (except to or as designated by the Noteholders). The holders of the Subordinated Debt will not, at any time this Agreement is in effect, modify any of the terms of any of the Subordinated Debt or any documents, instruments or agreements evidencing same in any way that would adversely affect the subordination of the Subordinated Debt hereunder or otherwise violate the Note Agreement."
"(b) Any provision of this Agreement that is illegal, invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability without invalidating the remaining provisions hereof or affecting the legality, validity or enforceability of such provisions in any other jurisdiction. The parties hereto agree to negotiate in good faith to replace any illegal, invalid or unenforceable provision of this Agreement with a legal, valid and enforceable provision that, to the extent possible, will preserve the economic bargain of this Agreement, or to otherwise amend this Agreement to achieve such result."
"Section 20 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 AGREEMENT, THE NOTE PURCHASE AGREEMENT, THE NOTES OR THE TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION."
"Section 21 TERMINATION OF SUBORDINATION. This Agreement shall continue in full force and effect, and the obligations and agreements of the Subordinated CreditorS hereunder shall continue to be fully operative, until all of the Senior Obligations shall have been paid and satisfied in full in cash and such full payment and satisfaction shall be final and not avoidable. To the extent that the Issuer or any guarantor of or provider of collateral for the Senior Obligations makes any payment on the Senior Obligations that is subsequently invalidated, declared to be fraudulent or preferential or set aside or is required to be repaid to a trustee, receiver or any other party under any bankruptcy, insolvency or reorganization act, state or federal law, common law or equitable cause (such payment being hereinafter referred to as a Voided Payment), then to the extent of such Voided Payment, that portion of the Senior Obligations that had been previously satisfied by such Voided Payment shall be revived and continue in full force and effect as if such Voided Payment had never been made. In the event that a Voided Payment is recovered from any Noteholder, an Event of Default shall be deemed to have existed and to be continuing under the Note Purchase Agreement from the date of such Noteholders initial receipt of such Voided Payment until the full amount of such Voided Payment is restored to such Noteholder. During any continuance of any such Event of Default, this Agreement shall be in full force and effect with respect to the Subordinated Debt. To the extent that the any holder of Subordinated Debt has received any payments with respect to the Subordinated Debt subsequent to the date of such Noteholders initial receipt of such Voided Payment and such payments have not been invalidated, declared to be fraudulent or preferential or set aside or required to be repaid to a trustee, receiver, or any other party under any bankruptcy act, state or federal law, common law or equitable cause, such holder of Subordinated Debt shall be obligated and hereby agrees that any such payment so made or received shall be deemed to have been received in trust for the benefit of the Noteholders, and such holder of Subordinated Debt hereby agrees to pay to such Noteholder, upon demand, the full amount so received by such holder of Subordinated Debt during such period of time to the extent necessary fully to restore to such Noteholder the amount of such Voided Payment. Upon the payment and satisfaction in full in cash of all of the Senior Obligations, which payment shall be final and not avoidable, this Agreement will automatically terminate without any additional action by any party hereto."
"B. Buyer desires to purchase and the Company desires to issue and sell, upon the terms and conditions set forth in this Agreement an 8% convertible note of the Company, in the form attached hereto as Exhibit A in the aggregate principal amount of $50,000.00 (together with any note(s) issued in replacement thereof or as a dividend thereon or otherwise with respect thereto in accordance with the terms thereof, the Note), convertible into shares of common stock, of the Company (the Common Stock), upon the terms and subject to the limitations and conditions set forth in such Note."
"a. Investment Purpose. As of the date hereof, the Buyer is purchasing the Note and the shares of Common Stock issuable upon conversion of or otherwise pursuant to the Note, such shares of Common Stock being collectively referred to herein as the Conversion Shares and, collectively with the Note, the Securities) 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 1933 Act; provided, however, that by making the representations herein, the Buyer does not agree 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."
"c. Issuance of Shares. The Conversion Shares are duly authorized and reserved for issuance and, upon conversion of the Note in accordance with its respective terms, will be validly issued, fully paid and non-assessable, and free from all taxes, liens, claims and encumbrances with respect to the issue thereof and shall not be subject to preemptive rights or other similar rights of shareholders of the Company and will not impose personal liability upon the holder thereof."
"c. Corporate Existence. So long as the Buyer beneficially owns any 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 OTCQB, Nasdaq, Nasdaq SmallCap, NYSE or AMEX."
d. 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.
"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 attorney's 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 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."
"d. Severability. 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."
"f. Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be in writing and, unless otherwise specified herein, shall be (i) personally served, (ii) deposited in the mail, registered or certified, return receipt requested, postage prepaid, (iii) delivered by reputable air courier service with charges prepaid, (iv) via electronic mail or (v) transmitted by hand delivery, telegram, or facsimile, addressed as set forth below or to such other address as such party shall have specified most recently by written notice. Any notice or other communication required or permitted to be given hereunder shall be deemed effective (a) upon hand delivery or delivery by facsimile, with accurate confirmation generated by the transmitting facsimile machine, at the address or number designated below (if delivered on a business day during normal business hours where such notice is to be received) or delivery via electronic mail, or the first business day following such delivery (if delivered other than on a business day during normal business hours where such notice is to be received) or (b) on the second business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur. The addresses for such communications shall be:"
"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."
"WHEREAS, the Purchasers desire to purchase from the Company (or their Investment Advisers and Broker-Dealers desire to purchase on their behalf from the Company), and the Company desires to issue and sell to the Purchasers up to an aggregate of 1,200,000 shares (such number of shares actually sold pursuant to this Agreement, the Securities) of the Companys 7.00% Series D Cumulative Redeemable Preferred Stock, par value $0.001 per share, having a liquidation preference equivalent to $25.00 per share (the Series D Preferred Stock), with the number of Securities acquired by each Purchaser set forth opposite the name of such Purchaser on Schedule A, Schedule B or Schedule C, as the case may be."
"(b) Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i)there has been no material adverse change or any development which could reasonably be expected to give rise to a prospective material adverse change in or affecting the condition, financial or otherwise, or in the earnings, business affairs or, to the Companys knowledge, business prospects of the Company and the subsidiaries of the Company, if any (the Subsidiaries), considered as one enterprise, whether or not arising in the ordinary course of business, (ii)there have been no transactions entered into by the Company or any of its Subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and its Subsidiaries considered as one enterprise, and (iii)other than regular quarterly dividends, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its shares of equity securities."
"as described in the Prospectus; and each of the Company and its Subsidiaries is duly qualified to transact business in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or, to the Companys knowledge, business prospects of the Company and its Subsidiaries considered as one enterprise."
"(e) Neither the Company nor any of its Subsidiaries is in violation of its organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement, note, lease or other instrument or agreement to which the Company or any of its Subsidiaries is a party or by which it or any of them are bound, or to which any of the property or assets of the Company or any of its Subsidiaries is subject, except where such violation or default would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or, to the Companys knowledge, business prospects of the Company and its Subsidiaries considered as one enterprise; and the execution, delivery and performance of this Agreement, and the issuance and delivery of the Securities and the consummation of the transactions contemplated herein have been duly authorized by all necessary action and will not conflict with or constitute a material breach of, or material default under, or result in the creation or imposition of any lien, charge or encumbrance upon any material property or assets of the Company or any of its Subsidiaries pursuant to, any material contract, indenture, mortgage, loan agreement, note, lease or other instrument or agreement to which the Company or any of its Subsidiaries is a party or by which it or any of them are bound, or to which any of the property or assets of the Company or any of its Subsidiaries is subject, nor will any such action result in any violation of the provisions of the Charter, by-laws or other organizational documents of the Company or any of its Subsidiaries or any law, administrative regulation or administrative or court decree applicable to the Company."
"(f) The Company is organized in conformity with the requirements for qualification and, as of the date hereof and as of the Closing, operates in a manner that qualifies it as a real estate investment trust under the Internal Revenue Code of 1986, as amended, and the rules and regulations thereunder and will be so qualified after giving effect to the sale of the Securities."
"(h) No legal or governmental proceedings are pending to which the Company or any of its Subsidiaries is a party or to which the property of the Company or any of its Subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein, and to the knowledge of the Company, no such proceedings have been threatened against the Company or any of its Subsidiaries or with respect to any of their respective properties that are required to be described in the Registration Statement or the Prospectus and are not described therein."
"(k) The Company has full power and authority to enter into this Agreement, and this Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as may be limited by the Enforceability Exceptions."
"(l) As of the dates set forth therein or incorporated by reference, the Company had good and marketable title to all of the properties and assets reflected in the audited financial statements contained in the Prospectus, subject to no lien, mortgage, pledge or encumbrance of any kind except (i)those reflected in such financial statements, (ii)as are otherwise described in the Prospectus, (iii)as do not materially adversely affect the value of such property or interests or interfere with the use made or proposed to be made of such property or interests by the Company and each of its Subsidiaries or (iv)those which constitute customary provisions of mortgage loans secured by the Companys properties creating obligations of the Company with respect to proceeds of the properties, environmental liabilities and other customary protections for the mortgagees."
"(b) Assuming the Prospectus complies with all relevant provisions of the Act in connection with the offer and sales of Series D Preferred Stock, each Broker-Dealer will conduct all offers and sales of Series D Preferred Stock in compliance with the Act, the Exchange Act and all rules and regulations promulgated thereunder."
"(iii) the Placement Agent shall have received one or more opinions from Bass, Berry& Sims PLC, special securities counsel to the Company, dated as of the date of the Closing, addressed to the Placement Agent and the Direct Purchasers, Investment Advisers and Broker-Dealers who sign this Agreement substantially in the form attached hereto as Exhibit B,"
"10\. Notices. Except as otherwise herein provided, all statements, requests, notices and agreements shall be in writing and, if to the Purchasers, shall be sufficient in all respects if delivered or sent by facsimile to (212)446-9181 or by certified mail to CSCA Capital Advisors, LLC, 800 Third Avenue, 25th Floor, New York, NY, 10022, Attention: Bradley Razook, and, if to the Company, shall be sufficient in all respects if delivered or sent to the Company by facsimile to (703)287-5854 or by certified mail to the Company at 1521 Westbranch Drive, Suite 100, McLean, Virginia 22102, Attention: Danielle Jones, Chief Financial Officer."
"| | ---|---|--- CUSTOMERS Each of the Several persons or entities listed under the heading Account Name on Attachment [] to Schedule C hereto | By: |  | [], as agent and attorney-in-fact | By: |  |  |  | Name: |  | Title: [] on behalf of itself and solely with respect to Section5 | By: |  |  |  | Name: |  | Title: * * *"
|  | The amount set forth opposite such name on Attachment [] to Schedule C hereto under the heading Amount (in the aggregate []) Each of the several persons or entities set forth under the heading Account Name on Attachment [] to Schedule C hereto |  Schedule C - Page 1
| | ---|---|---  |  |   |  |   |  |   |  |   |  |   |  |   |  |   |  |   |  |  Schedule D - Page 1
"A new subsection 7.01(d) is added that reads as follows: by Buyer or Seller in the event that (i) there shall be any Law that makes consummation of the Contemplated Transactions illegal or otherwise prohibited or (ii) any Governmental Authority shall have issued a Governmental Order restraining or enjoining the Contemplated Transactions, and such Governmental Order shall have become final and non-appealable."
"at any time prior to May 13, 2016 (the Diligence Deadline), if Buyer determines, in its sole and absolute discretion, that it is not satisfied with the results of its due diligence, including the Cure Amounts payable in connection with the Business Contracts, provided however, that Buyer shall be entitled to seek an order from the Bankruptcy Court entered before the Diligence Deadline to extend the Diligence Deadline if the Seller has unreasonably delayed response to reasonable due diligence requests and reasonable requests for access by Buyers representatives, which requests must be made by Buyer upon reasonable advance notice;"
"1\. Release from Additional Covenants. Both CITIUS and Investor acknowledge and agree that CITIUS is released from any and all obligations related to the Additional Covenants in the PPM and Investor waives any restriction of CITIUS to sell debt or equity, fixed or variable priced or any combination thereof, at a price below the Unit pricing set forth in the Unit Purchase Agreement."
"2\. Release on Restricted Transactions. Both CITIUS and Investor acknowledge and agree that CITIUS is released from any and all obligations related to 6.13 Restricted Transactions in the Unit Purchase Agreement and Investor waives any restriction on the ability to issue securities senior to the common stock, or issue any securities at a price below $0.40 cents per share."
"a. In the event that the Uplisting Financing is conducted at a price per share or price per unit of less than the Unit Price (the Lower Recent Price), then CITIUS will issue additional shares and warrants to Investor sufficient to effectively reprice the sale of Units to the Lower Recent Price."
"WHEREAS, Lessor, Plug Power, Lessee and Generate Plug Power SLB II, LLC, a Delaware limited liability company (together with its successors and assigns, the USPS Lessor), entered into that certain Bill of Sale (USPS  Capital Heights) and Assignment and Assumption Agreement, dated as of the date hereof (the Omnibus Assignment Agreement), pursuant to which (i)Plug Power sold, assigned, transferred and conveyed to the Lessee all of its right, title and interest in and to each Lease entered into under the Original Agreement other than the USPS Lease, and Lessee assumed all of the obligations of Plug Power with respect thereto, (ii)Lessor sold, assigned, transferred and conveyed to the USPS Lessor all of Lessors right, title and interest in and to (A)the USPS Equipment, (B)the Original Agreement to the extent it related to the USPS Lease, and (C)the USPS Lease;"
"WHEREAS, pursuant to a Guaranty and Pledge Agreement, dated as of the date hereof, between Plug Power and the Lessor (the Guaranty and Pledge Agreement), Plug Power has guaranteed the obligations of the Lessee under this Agreement and each Lease and has granted to Lessor a security interest in all of the membership interests of the Lessee owned by Plug Power."
"6. USE, OPERATION AND MAINTENANCE. Lessee shall use the Equipment in the manner for which it was designed and intended, solely for Lessees business purposes, substantially in accordance with all manufacturer manuals and instructions and in compliance with Applicable Law and each Walmart PPA (as defined in Section34). As used herein, Applicable Law means all applicable laws, statutes, regulations, ordinances, orders and other requirements of any governmental authority (including such requirements necessary to ensure that the Equipment qualifies for all tax benefits and environmental attributes, in each case, to the extent available by law to the owner of the Equipment as of the date of the applicable Lease). Lessee, at Lessees own cost and expense, shall keep the Equipment in good repair, condition and working order, ordinary wear and tear excepted, sufficient to perform according to the requirements of this Agreement and each Walmart PPA, and shall furnish or otherwise obtain all parts, mechanisms, devices and servicing required therefore in the ordinary course. Lessee shall also make, at Lessees own cost and expense, all modifications to the Equipment as are required from time to time for the Equipment to comply with Applicable Law and each Walmart PPA, provided no such modifications shall diminish the current or estimated residual value, utility, function, operation or remaining useful life of the Equipment (or any portion thereof) or cause the Equipment (or any portion thereof) to constitute limited use property within the meaning of Rev. Proc. 2001-28, 2001-19 I.R.B. 1156 or Rev. Proc. 2001-29, 2001-19 I.R.B. 1160 (or any successors thereto). All replacement parts and repairs at any time made to or placed upon the Equipment shall become the property of Lessor at no cost to Lessor and with no adjustment to the schedules of any Lease. Lessee may, with Lessors prior written consent (at no cost to Lessor and with no adjustment to the schedules of any Lease), which shall not be unreasonably withheld, make such alterations, modifications or additions to the Equipment as Lessee may deem desirable in the conduct of its business; provided the same shall not diminish the current or estimated residual value, utility, function, operation or remaining useful life of the Equipment (or any portion thereof), cause the loss of any warranty thereon or any certification necessary for the maintenance thereof, or cause the Equipment (or any portion thereof) to constitute limited use property within the meaning of Rev. Proc. 2001-28, 2001-19 I.R.B. 1156 or Rev. Proc. 2001-29, 2001-19 I.R.B. 1160 (or any successors thereto). All such alterations, modifications or additions to the Equipment shall be readily removable without causing damage to the Equipment (or any portion thereof). Upon return to Lessor of the Equipment as to which such alterations, modifications or additions have been made, Lessee, if requested to do so by"
"Lessor, shall remove the same and restore the Equipment to its original condition, ordinary wear and tear excepted, and, if not so removed, title thereto shall automatically vest in Lessor (at no cost to Lessor). Lessor acknowledges that any data files or software developed or installed by Lessee which is resident or otherwise installed on the Equipment shall be and remain the property of Lessee; provided, however, that the Lessor shall have no obligation or responsibility to remove or return same to Lessee."
"10. TAXES. Lessee shall promptly reimburse Lessor, or shall pay directly if so requested by Lessor, as additional Rent, all taxes, charges and fees (including any interest, additions to tax and penalties) that may now or hereafter be imposed or levied by any governmental body or agency upon or in connection with the purchase, ownership, control, lease, sublease, possession, manufacture, design, use, testing, repair, alteration, condition or location of the Equipment or otherwise in connection with the transactions contemplated by this Agreement or any Lease, including, without limitation, sales, use, property (real or personal and tangible or intangible), value added or other transfer taxes on (i)the initial sale of Equipment to Lessor, (ii)the Rents, (iii)the sale of power to, or the use of the Equipment by, Walmart under the Walmart PPAs (as defined in Section34), or otherwise with respect to any Assigned Agreement (as defined in the Lessee Security Agreement), (iv)any payment of Termination Value, and (v)upon any exercise of the Purchase Option, but excluding for purposes of this Section10 any and all taxes, charges and fees (including any interest, additions to tax and penalties) (A)on or measured by the net income of Lessor, but excluding taxes that are in the nature of sales, use, property (real or personal and tangible or intangible), value added or other transfer taxes, (B)resulting from Lessors negligence, or (C)resulting from or arising out of any failure on the part of Lessor to"
"file any tax returns or pay any taxes owing on a timely basis or any errors or omissions on Lessors tax returns unless the Lessee is responsible under this Agreement for filing the returns, Lessee has not provided information requested by Lessor that is necessary to file such tax returns or Lessors failure to file any tax returns or any errors or omissions on such tax returns is attributable to Lessees fraud, negligence or misrepresentation. Lessee shall file, in a timely manner and in the name of the Lessor as owner, any personal property tax returns relating to the Equipment that are required to be filed covering periods during the Lease Term, pay the amounts shown on the returns and provide copies of such returns and proof of payment to the Lessor. Failure of Lessee to pay promptly amounts due hereunder shall be treated the same as failure to pay any installment of Rent pursuant to Section3. If Lessee is requested by Lessor to file any other returns or remit payments directly to any governmental body or agency, Lessee shall timely file such returns and remit such payments and shall provide proof of said timely filing or payment to Lessor."
"11. RENT PREPAYMENT. As a condition precedent to entering into each Lease, Lessee shall have caused to be paid to Lessor, as a prepayment of Rent for the Equipment to be leased under such Lease, the sum of twenty (20)% of the Purchase Price or such other amount as provided in the Schedule."
"16. PURCHASE OPTION. (a)If Lessee elects the Purchase Option in accordance with Section14 of this Agreement with respect to a Lease, Lessee shall purchase all but not less than all of the Equipment described in such Lease from Lessor for an amount equal to the then fair market value of the Equipment as agreed by Lessee and Lessor, or if they shall fail to agree, as determined by the Appraisal Procedure (such amount, the Lessee Purchase Option Amount). The Purchase Option shall be consummated as of the close of business on the closing date set forth in Lessees notice or on such other date the Parties may otherwise agree (the Lessee Purchase Date)."
"(including negligence, strict liability or otherwise), Claims arising out of latent defects of the Equipment (regardless of whether the same are discoverable by Lessor or Lessee), Claims arising out of or relating to the violation of applicable law, including environmental law, or the existence or release of hazardous materials at the site where the Equipment is located, or Claims arising out of any trademark, patent or copyright infringement, but excluding (a)any Claims that accrue in respect of circumstances that occur after Lessor has taken possession of the Equipment after termination of this Agreement, provided that such Claims do not relate to Lessees use, possession or operation of the Equipment, (b)any Claims that result from the gross negligence or willful misconduct of Lessor, and (c)Claims for Taxes (it being agreed that Lessees indemnification obligations with respect to Taxes are set forth in Sections 10 and 18). If any Claim is made against Lessee or Lessor, the Party receiving notice of such Claim shall promptly notify the other, but the failure of such person receiving notice to notify the other shall not relieve Lessee of any obligation hereunder. If so provided in the applicable Schedule, the aggregate liability of the Lessee pursuant to this Section17, Section10 and Section18 with respect to the related Lease, shall be capped at the amount set forth in such Schedule."
"20. REPORTS. (a)Within sixty (60) days after the end of each quarterly period during the Lease Term, Lessee shall deliver to Lessor unaudited quarterly financial statements for Plug Power as of the end of such quarterly period, prepared in accordance with generally accepted accounting principles in the United States (GAAP), it being understood that this"
"(b) Without limiting the foregoing, Lessee further acknowledges and agrees that upon not less than five (5)Business Days prior written notice of an assignment from Lessor, Lessee will pay all Rent and any and all other amounts payable by Lessee under any Lease to such assignee or mortgagee as set forth in such notice of assignment. Lessee agrees to confirm in writing receipt of any such notice of assignment as may be reasonably requested by Lessor and such assignee or mortgagee."
"Initial Term and shall be allocated to each full or partial calendar year during such Initial Term (each, an Allocation Period) in the amounts shown under the column heading Annual Allocation for Federal Income Tax Rent (the Allocated Rent) on Attachment #4 hereto. Within each Rental Period, such Allocated Rent shall be allocated on a level daily basis."
"(a) Survival. If the Merger is consummated, the representations and warranties of the Company Holder set forth in Section1 of this Agreement shall survive the Closing and the Effective Time and shall remain in full force and effect until the expiration of the statute of limitations (including any extension or waivers thereof) applicable thereto."
"(d) No Solicitation. The Company Holder acknowledges that he, she or it has received a copy of the Merger Agreement. Until the Termination Date, the Company Holder (in his, her or its capacity as such) shall not, directly or indirectly, take any action prohibited by Section6.16 of the Merger Agreement. Prior to the Termination Date, in the event the Company Holder shall receive or become aware of any Acquisition Proposal, the Company Holder shall promptly inform the Company as to any such matter and the details thereof."
"Holder has waived any rights the Company Holder would have to dissent to the Merger and request an appraisal of the fair market value or fair value of shares of Company Capital Stock held by such Company Holder pursuant to Applicable Law. The Company Holder hereby waives and agrees not to exercise appraisal rights, and waives any dissenters rights that such Company Holder may have under any Applicable Law or could potentially have or acquire in connection with the execution and delivery of the Merger Agreement or the consummation of the Merger and Company Holder acknowledges and agrees that he, she or it has read Section262 of the DGCL, a copy of which is attached hereto as Exhibit C, and is knowingly waiving his, her or its rights thereunder."
"(c) Releasor represents and acknowledges that he, she or it has read this release and understands its terms and has been given an opportunity to ask questions of the Companys representatives. Releasor further represents that in signing this release he, she or it does not rely, and has not relied, on any representation or statement not set forth in this release made by any representative of the Company or anyone else with regard to the subject matter, basis or effect of this release or otherwise except such representations and warranties set forth in the Merger Agreement."
"(f) This release is conditioned upon the consummation of the Merger as contemplated in the Merger Agreement, and shall become null and void, and shall have no effect whatsoever, without any action on the part of any Person, upon termination of the Merger Agreement for any reason or upon any amendment, modification or waiver of the Merger Agreement relating to a change in (i)the form or amount of Merger Consideration or (ii)the indemnification obligations of the Equityholders therein, to which the Releasor has not consented."
"(b) 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 by other than automatic means, whether electronic or otherwise), (ii)when sent by e-mail (with non-automated written confirmation of receipt) or (iii)one Business Day following the day sent by an internationally recognized overnight courier, in each case, at the following addresses or email addresses (or to such other address or email address as a party may have specified by notice given to the other party pursuant to this provision):"
"(d) Entire Agreement; Amendments and Waivers. This Agreement (including the Annexes and Exhibits hereto) and the Merger Agreement represent the entire understanding and agreement between Parent, on the one hand, and the Company Holder, on the other hand, with respect to the subject matter hereof. This Agreement may only be amended, supplemented or changed by a written instrument signed by each of Parent and the Company Holder. Each provision in this Agreement may only be waived by written instrument making specific reference to this Agreement signed by the party"
"3. Arrange and verify annual training for material regulatory compliance issues, including Code of Business Ethics, HIPAA, Medicare and Medicaid billing, fraud, waste and abuse, ethics and safety and furnish copies of such training materials to Walmart within three business days of Walmarts request. Not less often than annually, Manager shall complete compliance training for Manager Personnel covering the following subjects:"
"a. The Parties acknowledge that under the License Agreement and until the Effective Date, Manager had engaged in sales of optical products comparable to the Goods to be sold under this Agreement (Existing Third Party Items)to individuals at the Stores pursuant to safety and managed care plans and government health care program contracts to which Manager remains a party as of the Effective Date (Existing Third Party Contracts).From the Effective Date until the Third Party Transition Date, Manager may continue to engage in the sale of such optical products at the Centers (New Third Party Items,together with Existing Third Party Items, the Third Party Items)pursuant to such Existing Third Party Contracts."
"c. The Parties agree that the transfer or assignment of Existing Third Party Contracts will occur at such time as the Parties reasonably agree that the objectives of this Section IV.C have been met. The Parties further agree that the transfers or assignments of the Existing Third Party Contracts will occur on a single effective date (the Third Party Transition Date)that will be identical to the Contact Lens Transition Date. The Parties contemplate to have the Third Party Transition Date and Contact Lens Transition Date occur no later than December 31, 2012 and agree to reasonably cooperate to cause the Third Party Transition Date to occur within a reasonable amount of time from the Effective Date, taking into account the number of Existing Third Party Contracts, the expected administrative effort on the part of the Parties as well as the third party payers, and coordination with the Contact Lens Transition Date. Such cooperation will include, without limitation, the formation by Walmart of a subsidiary entity or entities to serve as the contracted party under the assigned or transferred Existing Third Party Contracts, and the timely completion and submission of any applicable enrollment forms and applications."
"J. Notifying Manager immediately of any lawsuits or actions, or any threat thereof, that become known to Walmart that could reasonably be expected to have an adverse affect on the operation of one or more Centers; provided, that in, the case of a threat thereof, actual steps to enforce such threat must become known to Walmart or in Walmarts reasonable judgment appear imminent;"
"K. Unless prohibited by law, notify Manager promptly of any actions by any regulatory board, personal injury or properly damage or other loss or damage occurring to or claimed by any party with respect to the Centers and forward promptly to Manager copies of any summons, subpoena, or other like legal document served upon Walmart relating to actual or alleged potential liability of Manager, and, unless prohibited by law, cooperate with the investigation and response to any claim in a manner consistent with the established risk management programs of Manager and Walmart; and"
"5.in exercising any of its rights under this Section, Walmart shall not materially interfere with the operations of the Centers and shall not, by way of example but not limitation, cause the Centers to close for business without having been previously relocated within the impacted Centers Remodeled Store or Relocated Store."
"C. Closing. Notwithstanding any provision of this Agreement, either Party may, at its sole discretion and upon ninety days written notice to the other Party, close up to five Centers per rolling twelve-month period without any further obligation or liability to the other Party and this Agreement will, as of such closure of a given Center, be terminated with respect to such Center; provided however, that Centers closed by Walmart pursuant to Section VIII.B.5 of this Agreement shall not count against the five Center limit."
"2. Walmart has the right, but not the obligation, to terminate this Agreement upon notice to Manager following the occurrence of any default by Manager. Material Default by Manager means Managers failure to perform its material duties and obligations under this Agreement and failure to cure the same within forty-five days after written notice is given by"
"4. During a period expiring sixty days after receipt by Walmart of the notice described below, Walmart has the right, but not the obligation, to terminate this Agreement upon notice that Manager or any of its affiliates, or any of their respective officers, directors, employees, stockholders, agents, accept an offer from a Competing Business with respect to the possible disposition of all or substantially all of the assets of Manager or the sale of a majority of the assets or capital stock of Manager, or a business combination in which Manager is acquired by a Competing Business, whether such combination occurs by way of merger, consolidation, share exchange or other transactions (Acquisition Transaction),Manager shall provide Walmart with not less than twenty days prior written notice of such Acquisition Transaction to include the name, address of the Competing Business. Competing Businessmeans any of the entities listed on the attached Exhibit 6."
"B. Doctors and Associates. Seven months before the scheduled expiration of the Term, Manager shall provide to Walmart the names and current contact information (the Contact Information)of each optometrist and ophthalmologist and each of Manager Personnel then performing services for, in affiliation with, or employed by Manager, at each Office or Center (as applicable, the Doctorsand the Associates).Manager shall reasonably cooperate with Walmarts efforts to review the qualifications of the Doctors and the Associates for, to the extent permitted by law, employment, sublease arrangement, license agreement or other working relationship with Walmart to commence on or after the expiration of the Term. During the period commencing six months before, and ending two months before, the expiration of the Term (the Solicitation Period),Walmart may approach any and all Doctors and Associates, as appropriate, about entering into an agreement for space and equipment or working for or licensing space from Walmart on or after the end of the Term. Walmart shall have a first right with respect to such Doctors and Associates during the Solicitation Period; that is, unless and until Walmart notifies Manager in writing that Walmart has elected not to offer to a specific Doctor or a specific Associate (a Non-Restricted Person)the opportunity to affiliate with (e.g., through a license agreement) or, as permitted by law, work for"
"E. Limitations. Each Party and its Indemnitees shall not be entitled to recover any special, consequential, exemplary, future, or incidental Damages from the other Party or its Indemnitees under this Section X. The Parties agree that the sole and exclusive remedy for Damages suffered by a Party and its Indemnitees arising out of or related this Agreement shall be pursuant to this Section X."
"5. The obligations of confidentiality provided in this Agreement survive for a period of two years after the expiration or termination of this Agreement for any reason; provided, however, with respect to any item of Confidential Information that rises to the level of a trade secret under applicable law. such obligations will survive the expiration of such two year period and remain in full force and effect for so long as the applicable Confidential Information remains a trade secret."
A. Negotiation by Senior Executives. The Parties shall first attempt to settle any Dispute by negotiation between senior executives of the Parties. Senior executives for Walmart will be senior leaders in the Walmart or Sams Club Health & Wellness Divisions; senior executives for Manager will be officer level and include the chief executive officer of Manager.
"about the nature, scope and purposes of their business relationship and equip the Mediator with copies of basic contract documents. As soon as a Dispute is submitted to the Mediator, the Mediator will set an early date for a conference at which each Party will be given an opportunity to present evidence, but in any event within thirty days of submission of the Dispute to the Mediator. The proceedings should be informal and the Parties will not make a recording of the mediation. The Parties may have representatives at the mediation. The Mediator may ask questions of the Parties and witnesses, but should not during the mediation express any opinion concerning the merits of any facet of the matter under consideration. After the mediation, the Mediator will deliberate and issue a written recommendation on the Dispute. Within ten days of receiving the recommendation, each Party will respond by either accepting or rejecting the Mediators recommendation. Failure to respond means that the Party accepts the recommendation. If the Dispute remains unresolved, either Party may appeal back to the Mediator, or resort to other methods of settlement or litigation. Manager shall pay the Mediator compensation and other reasonable costs. The location of any Mediation will be Chicago, Illinois."
"C. Immigration Compliance. Manager will at all times during the Term comply in all material respects with all immigration laws, statutes, rules, codes, orders, and regulations including, without limitation, the Immigration Reform and Control Act of 1986, as amended, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as amended, and any successor statutes. Manager shall at all times during the Term properly maintain all records required by the United States Citizenship and Immigration Services (the USCIS)including, without limitation, the completion and maintenance of the Form 1-9 for all Managers employees providing the Services at the Centers, and shall at all times during the Term respond in a timely fashion to any inspection requests related to such I-9 Forms. During the Term, Manager shall, and shall cause its directors, officers, managers, agents and employees to, fully cooperate in all respects with any audit, inquiry, inspection or investigation that may be conducted by the USCIS of Manager or any of its employees providing the Services at the Centers. Manager shall, on a bi-annual basis during the Term, conduct an audit of the I-9 Forms for its employees and shall promptly correct any defects or deficiencies that are identified because of such audit. If, at any time during the Term, Walmart informs Manager that it is in breach of this Section with respect to any employee of Manager performing Services at the Centers, Manager shall, within thirty days of receiving such notice, correct such non-compliance to Walmarts reasonable satisfaction (it being understood that the termination of such employee, together with the implementation by Manager of adequate controls in order to reasonably prevent such breach from re-occurring in the future with respect to any other employees of Manager performing Services at the Walmart facilities, will be a cure to such non-compliance that is reasonably satisfactory to Walmart). If Manager does not cure such non-compliance with such 30-day period in accordance with the immediately preceding sentence, then, during the 30-day period immediately following the expiration of the 30-day period referred to in the immediately preceding sentence, Walmart may terminate this Agreement unless, prior to the expiration of such second thirty day period, Manager has cured such non-compliance. The terms and provisions of this Section XIII.B shall apply only to those employees of Manager who provide Services."
"I. Notices. All notices, requests, demands, claims and other communications regarding this Agreement (exclusive, however, of invoices provided under this Agreement) must be in writing and will be deemed given (i) when delivered personally to the recipient, (ii) one business day after being sent to the recipient by reputable overnight courier service (charges prepaid), or (iii) four business days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid and addressed to the intended recipient as set forth below: ---|--- | | | | |"
"b. conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which the Representing Party is a party or by which it is bound or to which any of its assets is subject. ---|---|---|--- |"
"N. Jurisdiction: Venue. The Parties agree that any claim or suit between or among any of the Parties relating to or arising under or in connection with this Agreement may only be brought in and decided by the state or federal courts located in the State of Delaware, such courts being a proper forum in which to adjudicate such claim or suit, and each Party hereby waives any objection to each such venue and waives any claim that such claim or suit has been brought in an inconvenient forum."
"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."
"R. Remedies and Injunctive Relief. The Parties acknowledge that any violation of the material provisions of this Agreement will cause irreparable harm to the other Party for which a remedy at law would be inadequate and damages would not be readily calculable. Therefore, the Parties agree that, in addition to any other available remedies, the injured Party is entitled to seek a temporary restraining order, preliminary injunction or other equitable relief to prevent any threatened, actual or continuing violation of such provisions."
"This EQUIPMENT LEASE AGREEMENT, including all Exhibits hereto (Lease), is made and entered into as of the Effective Date listed below by and between NATIONAL VISION, INC., a Georgia corporation (Lessor) and WAL-MART STORES, INC., a Delaware corporation (Lessee), in consideration of the mutual covenants and agreements set forth in this Lease."
"Pursuant to Section IX.C of the M & S Agreement, Lessor granted Lessee the option to lease from Lessor, on the terms and conditions set forth in this Lease, certain optometric and other equipment and fixtures located at the particular Center or Centers designated by Lessor after the termination of the M & S Agreement. ---|--- C. |"
"3. EFFECTIVE DATE: The terms and provisions hereof and the obligations and liabilities of Lessee and Lessor hereunder will become effective, and the Term will commence, on the Effective Date for such FF&E that Lessee chooses to lease at the Centers. On or prior to the Effective Date, Lessor, at Lessors option and expense, may firmly affix to the FF&E, in a conspicuous place, such label, sign or other device as Lessor desires to identify Lessor as the owner and lessor of the FF&E, provided the same will not interfere with Lessees use of the FF&E or violate any consumer protection law, including those governing consumer confusion."
"5. DELINQUENCY CHARGES: For each Rental Payment or other sum due hereunder which is not paid when due, Lessee agrees to pay Lessor a delinquency charge calculated thereon at the higher of: i) the rate of 1% per month for the period of delinquency or, ii) at Lessors option, 5% of such Rental Payment or other sum due hereunder, provided that such a delinquency charge is not prohibited by law."
"20. INDEMNITY: Lessor (which term as used in this Section 20 includes Lessors successors, assigns, affiliates, agents and servants) shall have no responsibility or liability to Lessee, its successors or assigns or any other person with respect to any Indemnified Liabilities (defined below), and Lessee hereby assumes liability for, and hereby agrees, at its sole cost and expense, to indemnify, defend, protect and save Lessor and keep it harmless from and against, any and all Indemnified Liabilities. The term Indemnified Liabilities as used herein will include any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements of whatsoever kind and nature, including legal fees and expenses imposed on, incurred by or asserted against Lessor arising out of Lessees use of the FF&E, including claims for injury or damage to property, or injury or death to any person (including Lessees employees, tenants or vision center operations), or penalties, fines or other losses from any noncompliance by Lessee or its employees, tenants, operators, agents or contractors with applicable regulations. Lessee agrees to give Lessor, and Lessor agrees to give Lessee, prompt written notice of any claim or liability hereby indemnified against. The indemnities arising under this Paragraph will survive payment of all other obligations under this Lease and the expiration or termination of this Lease."
"21. NOTICES AND FURTHER ASSURANCES: All notices relating hereto will either be delivered in person to an officer of Lessor or Lessee, sent by commercial overnight courier or be mailed certified to Lessor or Lessee at its respective address shown on the signature page(s) hereto or such other addresses as Lessor or Lessee may provide in advance and in writing to each other, in the manner set forth herein. Lessee agrees to execute and deliver to Lessor, upon Lessors request, such documents and assurances as Lessor reasonably deems necessary or advisable for the confirmation or perfection of this Lease and Lessors rights hereunder, including such documents as Lessor may require for filing or recording."
"E. In the event that Business Associate, in connection with performing its obligations under this BAA or the Agreement, uses or maintains an Electronic Health Record of information of or about an Individual, then Business Associate shall provide an electronic copy (at the request of Covered Entity, and in the time and manner designated by Covered Entity, not to exceed 15-days) of the PHI to Covered Entity or, as directed by Covered Entity, to an Individual or a third party designated by the Individual, all in accordance with 42 U.S.C.  17935 and its implementing regulations, as of its Compliance Date."
"the media, if required. Despite anything to the contrary in the preceding provisions, in Covered Entitys sole and absolute discretion and in accordance with its directions, to the extent a Breach results from a violation of this BAA or applicable law or the gross negligence or willful misconduct of Business Associate or its employees, agents or contractors (other than Covered Entity), Business Associate shall conduct, or pay the costs of conducting, an investigation of any Breach and shall provide or pay the costs of providing any notices required by the Breach Notice Rule or other applicable law."
"A. This BAA is effective as of the effective date of the Agreement (Effective Date)and terminates when Business Associate and its Subcontractors no longer have access to PHI, and when all of the PHI in Business Associates possession, inclusive of PHI in the possession of Business Associates Subcontractors, has been returned or destroyed, unless earlier terminated in accordance with Sections IV(B) through (C) of this BAA."
"Any information relating to an identified or identifiable individual irrespective of whether such individual is a Walmart customer, employee or other status (such as name, postal address, email address, telephone number, date of birth, Social Security number, drivers license number, account number, credit or debit card number, health or medical information, or any other unique identifier); and ---|---|--- |"
"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."
"This Special Power of Attorney is given by [WALMART SUBSIDIARY], a Delaware corporation, (Walmart)to National Vision, Inc., a Georgia corporation (Manager),in connection with, and relating solely to, that certain Management & Services Agreement (M&S Agreement),dated May 1, 2012 (the Effective Date),by and among Wal-Mart Stores, Inc., a Delaware corporation, and its United States operating subsidiaries, and Manager, under the terms of which Manager agrees to manage and assist with the operation of the Centers."
"Payer means, with respect to a Group Contract, an employer, employee organization, health and welfare fund, health maintenance organization, managed care organization, insurer, self-insured and other employer, insurance company, Medicare, Medicaid and any other public or private third-party payer or fiscal intermediary or other third-party purchaser of or payer for optical or vision benefits. "
"The undersigned gives the Manager, as attorney-in-fact, full power and authority to execute and perform the above purposes as if the undersigned were personally present, hereby ratifying and confirming all the said attorney-in- fact shall lawfully do or cause to be done by the limited authority granted herein. This Special Power of Attorney will be governed by the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of Delaware. "
"(a) Sirgo will remain employed by the Company as President and Chief Executive Officer during a period of time (the Transition Period) in order to provide for an orderly transition of his duties. The Transition Period will commence as of the date Sirgo signs this Agreement (the Signature Date) and will continue until January2, 2018 (the Retirement Date). Sirgos employment with the Company and each of its subsidiaries will terminate as of the Retirement Date. Sirgo shall be paid his full compensation and participate in full benefits through the Retirement Date at the same levels he receives such compensation and participates in such benefits at the Signature Date; provided, however, that such compensation shall include the increase in base salary that was approved by the Board in January 2017, but temporarily deferred for the senior management team at the request of Sirgo, retroactive to January1, 2017; provided further that any catch-up in payments of base salary to implement the increase shall be made on or before December31, 2017. Sirgo hereby resigns from the positions of President and Chief Executive Officer of the Company and each of its subsidiaries by reason of his voluntary retirement effective as of the Retirement Date. Sirgo acknowledges that, as of the Signature Date, he is entering into this Agreement of his own choosing and is not the result of any disagreement with the Company on any matter relating to the Companys operations, policies (including accounting or financial policies) or practices. Notwithstanding anything else in this Agreement to the contrary, the Board may remove Sirgo from the position of Chief Executive Officer and President prior to the January2, 2018 only for Good Cause (as defined herein), but in such case, Sirgo shall remain an employee through the Retirement Date (and put on paid administrative leave, at the Boards discretion), shall be entitled to full pay and benefits through the Retirement Date, and shall be entitled to the payments and benefits set forth in this Agreement, including but not limited to those specified in Section2\. As used in this Agreement, the term Good Cause shall mean: (i)an act or omission constituting gross misconduct or willful misfeasance by Sirgo; (ii)the commission by Sirgo of an act of fraud,"
"(c) Following the Retirement Date, Sirgo shall be permitted to consult with, be employed by, act as a director for, or otherwise be associated with, any other business, subject in all instances to the terms of this Agreement, the surviving terms of the Employment Agreement (as defined below) (including the non-competition provisions thereof) and the Confidentiality Agreement (as defined below), as modified in Section1(f) of this Agreement.."
"(d) Except as set forth in this Agreement, as provided by the specific terms of a Company benefit plan or as required by law, as of the Retirement Date, all of Sirgos benefits as an officer and employee of the Company will be terminated; provided, however, that Sirgo will be entitled to any and all vested rights as of the Retirement Date in any benefits, and to payment of his accrued but unused vacation in his last paycheck."
" | (ii) | 2017 Equity Award. Sirgo will be entitled to receive his 2017 equity award bonus under and in accordance with the terms of the Employment Agreement and the Plan (the 2017 Equity Award), with the type and amount thereof to be determined in accordance with the Companys prevailing compensation policies and procedures for Sirgo in his role as President and Chief Executive Officer of the Company relative to the 2017 equity awards made to the Companys other officers. The Company and Sirgo acknowledge and agree that such annual equity awards have in the past periods been awarded as vesting restricted stock units (RSUs) under the Plan, but in light of Sirgos Retirement, the 2017 Equity Bonus will be awarded in the form of a one-time issuance of fully vested shares of Common Stock under the Plan, the number of which will be determined: ---|---|--- (A) with respect to RSUs which by their terms would vest with the passage of time (Time Vesting RSUs), a number of shares of Common Stock equal to (1)the Net Present Value (as defined below) of the Time Vesting RSUs that would have been issued to Sirgo for the 2017 Equity Award had he not retired divided by (2)the 30-day volume weighted average price of the Common Stock (the 30-day VWAP) as of the date of issuance of the 2017 Equity Bonus; and"
"(B) with respect to RSUs which by their terms would vest based on future performance (Performance Vesting RSUs), a number of shares of Common Stock determined by multiplying the number of Performance Vesting RSUs that would have been issued to Sirgo for the 2017 Equity Award had he not retired by 0.66."
" | (v) | Net Issuance. Sirgo shall be entitled to the customary Company benefit allowing for the net issuance by the Company of Common Stock underlying the Options or RSUs or Common Stock comprising the LTIP Stock in order to provide Sirgo the opportunity (on his own or through the Company) to sell shares of Common Stock, the proceeds of which will be utilized to pay Sirgos federal, state or local income or withholding tax liability. ---|---|--- "
"(a) Sirgo Release. In consideration of the mutual agreements and covenants herein contained, by signing this Agreement, Sirgo knowingly and voluntarily releases and forever discharges the Company and its affiliates, subsidiaries, divisions, insurers, predecessors, successors and assigns, and their current and former employees, attorneys, officers, directors and agents thereof, both individually and in their business capacities, and their employee benefit plans and programs and their administrators and fiduciaries (collectively referred to throughout the remainder of this Agreement as Company Released Parties), of and from any and all claims, known and unknown, asserted or unasserted, which Sirgo has or may have against the Company or any Company Released Parties as of the date of execution of this Agreement, including, but not limited to: (i)any claims, whether statutory, common law, or otherwise, arising out of the terms or conditions of his employment at the Company; (ii)any claims, whether statutory, common law, or otherwise, arising out of the facts and circumstances of his employment and the termination of his employment at the Company; (iii)any claims for breach of contract, quantum meruit, unjust enrichment, breach of oral promise, tortuous interference with business relations, injurious falsehood, defamation, negligent or intentional infliction of emotional distress, invasion of privacy, and any other common law contract and tort claims; (iv)any claims for unpaid or lost benefits or salary, bonus, vacation pay, severance pay, or other compensation; (v)any claims for attorneys fees, costs, disbursements, or other expenses; (vi)any claims for damages or personal injury; (vii)any claims of employment discrimination, harassment or retaliation, whether based on federal, state, or local law or"
"(b) Company Release. In consideration of the mutual agreements and covenants herein contained, by signing this Agreement, the Company knowingly and voluntarily releases and forever discharges Sirgo, his affiliates, and his attorneys and representatives (collectively referred to throughout the remainder of this Agreement as Sirgo Released Parties), of and from any and all claims, known and unknown, asserted or unasserted, which the Company has or may have against Sirgo or any Sirgo Released Parties as of the date of execution of this Agreement, including, but not limited to, (i)any claims, whether statutory, common law, or otherwise; (ii)any claims for breach of contract, breach of fiduciary duty, conversion, quantum meruit, unjust enrichment, breach of oral promise, tortuous interference with business relations, injurious falsehood, defamation, and any other common law contract and tort claims; (iii)any claims for attorneys fees, costs, disbursements, or other expenses; and (vi)any claims for damages; provided, however, that expressly excluded from such released claims are (A)claims arising out of Sirgos capacity as an officer or employee of the Company for fraud, criminal acts, intentional misconduct or actively concealed grossly negligent acts, and (B)any claims relating specifically to Sirgos actions or omissions as a director of the Company. The enumeration of specific rights, claims, and causes of action being released should not be construed to limit the general scope of the foregoing release. It is the intent of Sirgo and the Company that by the foregoing release, the Company is giving up all rights, claims, and causes of actions against the Sirgo Released Parties which accrued prior to the effective date hereof, whether or not he is aware of them and whether or not any damage or injury has yet occurred. This release does not include either Partys right to enforce the terms of this Agreement. Nothing in this Agreement extinguishes any claims the Company may have: (i)against Sirgo for breach of this Agreement or the Supplemental Release Agreement; or (ii)against any of the Sirgo Released Parties for any claims arising from events that occur following the Effective Date."
"8\. Cooperation. By signing this Agreement, Sirgo agrees that, for a period of equal to the period of time under which Sirgo is covered by the director and officer liability insurance (including tail coverage) of the Company or its successors (the Cooperation Period), he will, at the Companys expense, cooperate fully with the Company and its officers, directors, employees, agents, successors, assigns and legal counsel in connection with any claim, complaint, charge, suit or action previously or hereafter asserted or filed by or against the Company or any of the Released Parties of the Company which relates to, arises out of or is connected directly or indirectly with (i)Sirgos service as an officer or director of the Company, or (ii)any other relationship or dealings between Sirgo and the Company or any of the Companys Released Parties. Further, during the Cooperation Period, Sirgo agrees that, in the event that he is subject to a valid and enforceable subpoena or court order that compels his testimony at a trial, hearing or deposition concerning his relationship with the Company or any other matter relating to the Company or any of the Companys Released Parties, he will inform the Chairman of the Board of the Company in writing within seventy two (72)hours of his becoming aware that he is required to testify and will reasonably cooperate with the Company in minimizing any disclosure by Sirgo of any confidential or proprietary information of the Company. Sirgo expressly agrees that, to the extent permitted by applicable law or court order, he will continue to cooperate with the Company in accordance with this Section after receiving said subpoena or court order. No part of this Agreement will abrogate Sirgos obligation to provide truthful testimony under oath. The Company shall compensate Sirgo (following his provision of appropriate documentation) at an hourly rate of $350 for any time he is required to devote to his obligations under this Section8, and shall reimburse Sirgo for all of his reasonable out of pocket expenses; provided, however, that if Sirgo is still serving as a director, Sirgo shall not be entitled to such compensation in connection with cooperation under this Section8 with claims or litigation arising from Sirgos duties as a director or former officer of the Company; and provided, further, Sirgo shall not be not be entitled to reimbursement for his expenses to the extent that he has been compensated for such expenses under the Companys director and officer insurance policy."
"11\. Governing Law. This Agreement shall be construed, interpreted, and governed in accordance with and by North Carolina law. Any and all claims, controversies, and causes of action arising out of this Agreement, whether sounding in contract, tort, or statute, shall be governed by the laws of the State of North Carolina, including its statutes of limitations, without giving effect to any North Carolina conflict-of-laws rule that would result in the application of the laws of a different jurisdiction provided, however, that claims related specifically to Sirgos conduct as a director of the Company and all related corporate matters arising from his service as a director of the Company shall be construed, interpreted, and governed in accordance with and by Delaware law."
"believe has a high probability of success, that an Overpayment has been made or (B)it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved that an Overpayment has been made, then Sirgo shall pay any such Overpayment to the Company. In the event that: (A)the Accountants, based upon controlling precedent or substantial authority, determine that an Underpayment has occurred or (B)a court of competent jurisdiction determines that an Underpayment has occurred, any such Underpayment will be paid promptly by the Company to or for the benefit of Sirgo together with interest at the applicable federal rate (as defined in Section7872(f)(2)(A) of the Code) from the date the amount would have otherwise been paid to Sirgo until the payment is made."
"unpaid or lost benefits or salary, bonus, vacation pay, severance pay, or other compensation; (v)any claims for attorneys fees, costs, disbursements, or other expenses; (vi)any claims for damages or personal injury; (vii)any claims of employment discrimination, harassment or retaliation, whether based on federal, state, or local law or judicial or administrative decision; and (viii)any claims arising under the Fair Labor Standards Act, 29 U.S.C. 201, et seq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e, et seq. (as amended); the Civil Rights Act of 1866, 42 U.S.C.  1981; the Civil Rights Act of 1991, Pub. Law No.102-166; the National Labor Relations Act, 29 U.S.C.  151, et seq.; the Family and Medical Leave Act, 29 U.S.C.  2601 et seq.; the Rehabilitation Act of 1973, 29 U.S.C.  701, et seq.; the Age Discrimination in Employment Act; the Older Workers Benefit Protection Act; the Worker Adjustment and Retraining Notification Act; the Americans With Disabilities Act, 42 U.S.C.  12101, et seq.; the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001, et seq., the Sarbanes-Oxley Act of 2002, 18 U.S.C. 1514A, et seq., the Dodd-Frank Wall Street Reform and Consumer Protection Act, claims under North Carolina or other state laws, including but not limited to the North Carolina Retaliatory Employment Discrimination Act, the North Carolina Persons with Disabilities Protection Act, the North Carolina Equal Employment Practices Act, and/or any other federal, state or local statute, law, ordinance, regulation or order, or the common law, or any self-regulatory organization rule or regulation. Sirgo acknowledges that he has received any and all leaves (paid or unpaid) to which he may have been entitled during his employment. The enumeration of specific rights, claims, and causes of action being released should not be construed to limit the general scope of this Release. It is the intent of Sirgo and the Company that by this Release, Sirgo is giving up all rights, claims, and causes of actions against the Company Released Parties which accrued prior to the effective date hereof, whether or not he is aware of them and whether or not any damage or injury has yet occurred. This release does not include either Partys right to enforce the terms of this Agreement. In connection with this release provision, Sirgo does not waive his right to file a charge or participate in any proceeding of any federal, state or local governmental agency, including the Equal Employment Opportunity Commission, the National Labor Relations Board, and the Securities and Exchange Commission. To the extent permitted by law, Sirgo agrees that if such a claim is made, Sirgo shall not be entitled to recover any individual monetary relief or other individual remedies should any administrative agency pursue any claim on his behalf. Nothing in this Supplemental Release Agreement extinguishes any claims Sirgo may have: (i)against the Company for breach of the Retirement Agreement; (ii)against any of the Company Released Parties for any claims arising from events that occur following the Effective Date; or (iii)related to the Companys obligation, if any, to indemnify Sirgo as an officer of the Company, including under any directors and officers liability policy maintained by the Company."
"2\. Stock Powers. The Yules have delivered Stock Powers to Corix and the Escrow Agent to hold in escrow under the Escrow Agreement. The Yules agree that the Escrow Agent shall deliver the Stock Powers to VStock Transfer, LLC (VStock), which serves as Corixs transfer agent, or its successor or assign, for the purpose of assigning and transferring the Shares. The Yules agree to take any and all other action deemed necessary by VStock or the Escrow Agent in transferring the Shares back to Corix for cancellation, and Corix agrees to be responsible for all costs incurred in transferring the Shares back to Corix for cancellation."
"3.3 Tax, Taxes and Tax Return Defined. For the purposes of this Agreement, Tax or Taxes shall mean all federal, state, county, local, foreign, and other taxes (including, without limitation, income taxes; premium taxes; business taxes; excise taxes; sales taxes; use taxes; value-added taxes; gross receipts taxes; franchise taxes; ad valorem taxes; real estate taxes; severance taxes; capital levy taxes; transfer taxes; stamp taxes; employment, unemployment, and payroll-related taxes; withholding taxes; and governmental charges and assessments), and include interest, additions to tax, and any penalties. For purposes of this Agreement, (i) a Tax is imposed upon a person if such person is responsible under applicable law for the payment, withholding, or collection of such Tax; (ii) a person is subject to a Tax if such Tax is imposed on either (A) such person or (B) a third party based on the activities or assets of such person; and (iii) a Tax is of a person if either clause (i) or (ii) of this Section 4.3 pertains to such Tax and such person. For purposes of this Agreement, Tax Return shall mean any return (including any information return), report, statement, schedule, notice, form, or other document or information filed with or submitted to, or required to be filed with or submitted to, any governmental authority in connection with the determination, assessment, collection, or payment of any Tax. Corix agrees to be responsible for any Tax or Taxes levied against Corix associated with this Agreement."
"5.1 Indemnification by Corix. Corix shall pay, reimburse, indemnify, and hold harmless the Yules, and those individuals or entities defined under Section 5.1, above, from and against any and all claims, suits, actions, assessments, losses, diminution in value, liabilities, fines, penalties, damages (compensatory, consequential, direct, indirect, and other), costs, and expenses (including reasonable legal fees) (Losses), and including any Losses that arise in the absence of a third-party claim, in connection with or resulting from any inaccuracy in any representation or breach of any warranty of Corix contained in this Agreement."
"7.5 Entire Agreement. This Agreement and all related documents, schedules, exhibits, or certificates represent the entire understanding and agreement between the Parties with respect to the subject matter and supersede all prior agreements or negotiations between the Parties. This Agreement may be amended, supplemented, or changed only by an agreement in writing that makes specific reference to this Agreement or the agreement delivered pursuant to it, and must be signed by the Party against whom enforcement of any such amendment, supplement, or modification is sought."
"7.6 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if one or more of the provisions of this Agreement is subsequently declared invalid or unenforceable, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions of this Agreement. In the event of such declaration of invalidity or unenforceability, this Agreement, as so modified, shall be applied and construed so as to reflect substantially the intent of the Parties and achieve the same economic effect as originally intended by its terms. In the event that the scope of any provision to this Agreement is deemed unenforceable by a court of competent jurisdiction, the Parties agree to the reduction of the scope of such provision as such court or arbitrator shall deem reasonably necessary to make such provision enforceable under the circumstances."
"7.7 Release of Escrow Agent. The Parties agree that the Escrow Agent shall hold this Agreement in escrow under the Escrow Agreement with the Related Agreements. The Parties agree to waive and release any and all claims against the Escrow Agent in holding this Agreement in escrow, except for any claims of gross negligence or intentional wrongdoing."
"(c)Annual Bonus. You will be eligible for an annual cash bonus under the H&R Block Executive Performance Plan, as the same may be amended or replaced from time to time (the Executive Performance Plan), in respect of each fiscal year during the Term, upon the achievement of performance goals as adopted by the Compensation Committee and, commencing with the fiscal year ending April 30, 2019, in consultation with you. In respect of each fiscal year, your target bonus will be equal to 125% of Base Salary with a maximum bonus equal to 200% of the target bonus, and a threshold level established by the Compensation Committee. In no event will the maximum bonus exceed the maximum annual amount currently permitted by the Executive Performance Plan (or any equal or higher maximum amount in any future amendment or replacement). Your annual bonus will be payable when bonuses are paid to other senior executive officers of the Company. Notwithstanding the foregoing, your target annual bonus for the Companys fiscal year ending April 30, 2018 (the Fiscal Year 2018) will be $862,106 (which the parties agree represents a pro-rated portion of your full fiscal year target bonus based on the number of days (253) between the Employment Date and April, 30, 2018 (i.e., the last day of Fiscal Year 2018)). The actual amount of your annual bonus for Fiscal Year 2018 will be determined based upon achievement of the performance goals for Fiscal Year 2018 adopted by the Compensation Committee on June 19, 2017, with such adjustments thereto as the Compensation Committee determines are necessary solely to allow for your fiscal year annual bonus to constitute performance-based compensation within the meaning of Section 162(m) of the Internal Revenue Code of 1986, as amended (the Code)."
"(d)Initial Option Grant. Under the H&R Block 2013 Long Term Incentive Plan, as the same may be amended from time to time (the 2013 Plan), you will be granted, as of 5:30 p.m. Central Time, on the Employment Date a non-qualified stock option (the Initial Stock Option) to purchase shares of Blocks common stock, without par value (Shares) having a grant date fair value using the Black-Scholes valuation method of $1,375,000 at an option price per Share equal to its closing price on the New York Stock Exchange on the Employment Date, such Initial Stock Option to expire on the earlier of (i) the fifth anniversary of the termination of your employment with the Company or (ii) the tenth anniversary of the Employment Date. The Initial Stock Option will be granted pursuant to an award agreement in the form attached hereto as Exhibit A (the Initial Option Agreement) and shall vest and become exercisable in three equal installments on each of August 21, 2018, August 21, 2019 and August 21, 2020, respectively, subject to the terms and conditions of the Initial Option Agreement and the accelerated vesting conditions in Section 4."
"(h)Business Expenses. The Company will promptly pay directly, or reimburse you for, all business expenses, to the extent such expenses are paid or incurred by you during the Term in the good faith performance of your duties or otherwise in the interests of the Company and/or Block in accordance with the Companys policy in effect from time to time."
"1.All Proprietary Information is the sole property of the Block Company and its assignees, and the Block Company is the sole owner of all patents, copyrights, trademarks, names and other rights in connection therewith and without regard to whether the Block Company is at any particular time developing or marketing the same. You hereby assign to the Block Companies any rights you may have or may acquire in such Proprietary Information. At all times during and after your employment with the Company or any other Block Company, you will keep in strictest confidence and trust all Proprietary Information and you will not use or disclose any Proprietary Information without the written consent of Block, except in the ordinary course of performing duties as Chief Executive Officer and President of the Company and/or Block, or as may be required by law, regulation or the order of any court or governmental authority or other legal process."
"(e)No Conflicts. You represent in good faith that, to the best of your knowledge, based on the current business of the Block Companies, your performance of all the terms of the Agreement will not breach any agreement to which you are or were a party and which requires you to keep any information in confidence or in trust. You have not brought and will not bring to the Block Companies nor will you knowingly use in the performance of employment responsibilities at the Block Companies any proprietary materials or documents of a former employer that are not generally available to the public, unless you have obtained express written authorization from such former employer for their possession and use. You have not and will not knowingly breach any obligation of confidentiality that you may have to former employers."
"(d)Entire Agreement. This Agreement, along with the Initial Option Agreement and Initial RSU Agreement, supersedes all previous employment agreements, whether written or oral between you and the Company and constitutes the entire agreement and understanding between the Company and you concerning the subject matter hereof. No modification, amendment, termination or waiver of this Agreement will be binding unless in writing and signed by you and a duly authorized officer of the Company and/or Block. Failure of the Company, Block, or you to insist upon strict compliance with any of the terms, covenants, or conditions hereof will not be deemed a waiver of such terms, covenants and conditions. If, and to the extent that, any other written or oral agreement between you and Company or Block is inconsistent with or contradictory to the terms of this Agreement, the terms of this Agreement will apply."
"(e)Specific Performance. The parties hereto acknowledge that money damages alone will not adequately compensate the Company or Block or you for breach of any of the covenants and agreements set forth in Sections 5 and 6 herein and, therefore, in the event of the breach or threatened breach of any such covenant or agreement by either party, in addition to all other remedies available at law, in equity or otherwise, a wronged party will be entitled to injunctive relief compelling specific performance of (or other compliance with) the terms hereof."
"(g)Withholding Taxes. From any payments due hereunder to you from the Company, there will be withheld amounts required to satisfy liabilities for federal, state, and local taxes and withholdings. In addition, the Company agrees that except as would violate applicable securities law or any Company policy, (i) you shall be permitted to sell Shares in order to satisfy any such taxes and withholding obligations; (ii) any required tax withholding obligations on your equity compensation awards in respect of Shares may be satisfied by reducing the number of Shares otherwise payable under such award by an amount of such Shares having a fair market value equal to the amount of such tax withholding obligations; and (iii) the required tax withholding obligations in connection with vesting of the Initial RSU Grant shall be satisfied automatically by reducing the number of Shares otherwise payable in connection with such vesting by an amount of Shares otherwise subject to the Initial RSU Grant having a fair market value equal to the amount of such tax withholding obligations. With respect to the Initial RSU Grant, a sufficient number of RSUs shall be settled and paid from the Initial RSU Grant, 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 restricted share 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."
"comments or statements to the press, to the employees of the Block Companies or to any individual or entity with whom a Block Company has a business relationship (including, without limitation, any vendor, supplier, customer or distributor), or any public statement, that in each case is intended to, or can be reasonably expected to, damage any of the Company Parties in more than a de minimis manner. Notwithstanding the foregoing, nothing in this Section 7(l) shall prevent you from (i) making any truthful statement to the extent, but only to the extent (A) necessary with respect to any litigation, arbitration or mediation involving this Agreement, including, but not limited to, the enforcement of 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, mediator, or administrative or legislative body (including any committee thereof) with apparent jurisdiction over you, (ii) making normal competitive statements during any period after the termination of your employment, (iii) making any statements in the good faith performance of your duties to Company, and (iv) rebutting any statements made by the Block, the Company, or their Affiliates or their respective officers, directors, employees or other service providers."
"on the restated financial results, and any profits from the sale of Shares transferred pursuant to an Award in excess of the profits that would have been received based on the restated financial results. The Companys, Blocks and each Affiliates right of recoupment shall apply only if demand for recoupment is made not later than three years following the payment of the applicable Award. Any recoupment shall be made net of any taxes you paid (to the extent such taxes may not be reasonably recovered by you) on the compensation subject to recoupment. You acknowledge that you are aware of the provision of Section 304 of the Sarbanes-Oxley Act of 2002 and the right of the United States Securities and Exchange Commission with respect thereto. For purposes of this paragraph 7(m), Fair Market Value means, as of any given date, (i) if the Shares are listed on the New York Stock Exchange (or another U.S. national securities exchange), the closing price on the date at issue, or if there is no closing price on such date, the closing price on the last preceding day for which there was a closing price; or (ii) if the Shares are not listed on the New York Stock Exchange (or another U.S. national securities exchange), a value determined by the reasonable application of a reasonable valuation method as determined by the Committee in accordance with Section 409A of the Code. To the extent future laws or applicable stock exchange listing standards require more expansive clawback provisions, such provisions shall be automatically incorporated into this Agreement and, to the extent more onerous, be deemed to supersede the current provisions of this Section 7(m). You agree that you will also be subject to any claw-back policy that is adopted by the Board in consultation with you that is applicable to officers of the Company and Block."
"(n)Notices. All notices required or desired to be given hereunder must be in writing and will be deemed served and delivered if delivered in person or mailed, postage prepaid to you at: your address than on file with the Companys payroll department and to Michael Melbinger at: Winston & Strawn LLP, 35 W. Wacker, Chicago, IL 60601 and to the Company at: HRB Professional Resources LLC, c/o H&R Block, Inc., One H&R Block Way, Kansas City, Missouri 64105, Attn: Corporate Secretary; or to such other address and/or person designated by either party in writing to the other party. Any notice given by mail will be deemed given as of the date it is so mailed and postmarked or received by a nationally recognized overnight courier for delivery."
"1.6 Term of Option. No portion of this Stock Option may be exercised after August 21, 2027 (the Expiration Date). If a Termination of Employment occurs, for any reason other than a Cause Termination, subject to Section 2.3 of this Agreement, Participant (or the person or persons to whom Participants rights under this Award Agreement pass by Participants will or laws of descent and distribution, as applicable in the case of death) may exercise any vested portion of this Stock Option at any time for a period of up to five (5) years after Participants Last Day of Employment, but in no event after the Expiration Date. Upon a Cause Termination, the unvested portions of this Stock Option shall terminate and be forfeited upon Participants Last Day of Employment."
"2.2 Forfeiture of Rights. Notwithstanding anything herein to the contrary, if Participant materially violates any provisions of Sections 5 and 6 of the Employment Agreement, Participant shall forfeit all rights to payments or benefits pursuant to Section 2.3. Any portion of this Stock Option that remains unexercised on such date shall terminate, be forfeited and be incapable of vesting."
"2.3 Remedies. Notwithstanding anything herein to the contrary, if Participant materially violates any provisions of Sections 5 and 6 of the Employment Agreement, whether before, on or after any settlement of an Award under the Plan, then Participant shall promptly pay to Company an amount equal to the aggregate Amount of Gain Realized by Participant on all Common Stock received pursuant to this Award Agreement (including upon exercise of this Stock Option) after a date commencing one (1) year before Participants Last Day of Employment; provided, however, to the extent the violation occurs before the exercise of this entire Stock Option, all rights to payments or benefits under the Plan and all unexercised portions of this Stock Option shall terminate, be forfeited and be incapable of vesting. Participant shall pay Company within sixty (60) business days after the date of any written demand by Company to Participant."
"4.2 Clawback. If a restatement of H&R Blocks financial results occurs and (a) the vesting or the Amount of Gain Realized with respect to any portion of this Award, or (b) the vesting or issuance of performance-based Shares pursuant to any other award granted under the Plan or any other company-sponsored equity compensation plan, or (c) any other cash compensation received by Participant pursuant to a Company-sponsored incentive plan, would not have occurred, been paid or would have been reduced if the results represented by the restatement were known as of the time of the original issuance of the financial results, Participant may be required to reimburse Company for the Amount of Gain Realized related to this Award."
"4.5 Interpretation and Regulations. The Committee shall have the full power and authority provided under Section 4.2 of the Plan and provided by delegation by the Board, subject to the terms of the Plan, and subject to such orders or resolutions not inconsistent with the provisions of the Plan as may from time to time be adopted by the Board. Such power and authority shall include, but not be limited to, the power and authority to: (a) interpret and administer the Plan, the Award Agreement, and any instrument or agreement entered into under or in connection with the Plan; (b) correct any defect, supply any omission or reconcile any inconsistency in the Plan or the Award Agreement in the manner and to the extent that the Committee shall deem desirable to carry it into effect; (c) establish such rules and regulations and appoint such agents as it shall deem appropriate for the proper administration of the Plan and Award; (d) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan and Award; (e) determine whether, to what extent and under what circumstances the Award shall be canceled or suspended; and (f) determine, for purposes of the Plan and this Award Agreement, (i) the date and circumstances that constitute a Termination of Employment, and (ii) what constitutes continuous employment with respect to vesting under this Award Agreement. Notwithstanding the foregoing, leaves of absence approved by the Committee or Company or transfers of employment among the subsidiaries of H&R Block shall not be considered an interruption of continuous employment under the Plan, unless otherwise required by Code Section 409A."
"4.6 Reservation of Rights. If at any time Company determines that qualification or registration of this Stock Option or any shares of Common Stock subject to this Stock Option 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."
"5.12 Termination of Employment. Termination of Employment, termination of employment and similar references mean a separation from service within the meaning of Section 409A. If Participant is an employee, Participant will generally have a Termination of Employment if Participant voluntarily or involuntarily terminates employment with Company. A termination of employment occurs if the facts and circumstances indicate that Participant and Company reasonably anticipate that no further services will be performed after a certain date or that the level of bona fide services Participant will perform after such date (whether as an employee, director or other independent contractor) for Company will decrease to no more than 20 percent of the average level of bona fide services performed (whether as an employee, director or other independent contractor) over the immediately preceding 36-month period (or full period of services if Participant has been providing services for less than 36 months). For purposes of this Section 5.15, Company includes any entity that would be aggregated with Company under Treasury Regulation 1.409A-1(h)(3)."
"4.9 Waiver. The failure of Company to enforce at any time any terms, covenants or conditions of this Award Agreement shall not be construed to be a waiver of such terms, covenants or conditions or of any other provision. Any waiver or modification of the terms, covenants or conditions of this Award Agreement shall only be effective if reduced to writing and signed by both Participant and an officer of H&R Block (other than Participant)."
"4.13 Choice of Forum and Jurisdiction. Participant and Company agree that any proceedings to enforce the obligations and rights under this Award Agreement must be brought in 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."
"5.11 Termination of Employment. Termination of Employment, termination of employment and similar references mean a separation from service within the meaning of Section 409A. If Participant is an employee, Participant will generally have a Termination of Employment if Participant voluntarily or involuntarily terminates employment with Company. A termination of employment occurs if the facts and circumstances indicate that Participant and Company reasonably anticipate that no further services will be performed after a certain date or that the level of bona fide services Participant will perform after such date (whether as an employee, director or other independent contractor) for Company will decrease to no more than 20 percent of the average level of bona fide services performed (whether as an employee, director or other independent contractor) over the immediately preceding 36-month period (or full period of services if Participant has been providing services for less than 36 months). For purposes of this Section 5.15, Company includes any entity that would be aggregated with Company under Treasury Regulation 1.409A-1(h)(3)."
"6.2 Participant has reviewed this Award Agreement in its entirety and understands that by signing this Award Agreement, Participant agrees to all of its terms, including, but not limited to, Section 2 of this Award Agreement, the Choice of Forum and Jurisdiction, and the Waiver of Jury Trial set forth in Section 4 of this Award Agreement."
"1. Release of Claims. Employee agrees to and hereby does release and forever discharge each of the Company Parties, and each and every one of their component, predecessor and successor companies, and their respective past and present agents, officers, executives, employees, attorneys, and directors (collectively the Released Parties) from any and all matters, claims, charges, demands, damages, causes of action, debts, liabilities, controversies, claims for attorneys fees, judgments, and suits of every kind and nature whatsoever, foreseen or unforeseen, known or unknown, which have arisen between Employee and the Released Parties up to the date Employee signs this Release Agreement, all as more fully set forth in paragraphs IV(A) through (E) below."
"A. Consideration/Revocation Period. Employee shall have twenty-one (21) days following his receipt of this Release Agreement to consider whether or not to sign this Release Agreement. Employee acknowledges that he may revoke his acceptance of the terms and conditions of this Release Agreement at any time within seven (7) calendar days after the day on which he originally returned his signed copy of the Release Agreement to the Company. Such revocation, to be effective, must be delivered by written notice, in a manner so the notice is received on or before the seventh (7th) day by: General Counsel, H&R Block, Inc., One H&R Block Way, Kansas City, MO 64105. In the event Employee does not return an executed copy of this Release Agreement to the Company within the twenty-one (21) day period, or Employee revokes his acceptance of the terms and conditions of this Release Agreement within the seven (7) day period following his execution of this Release Agreement, Employee will not be entitled to any of the payments or benefits provided under paragraph II(A), other than the Accrued Obligations and the Other Benefits."
"M. 409A Representations. Company has made a good faith effort to comply with current guidance under Section 409A of the Internal Revenue Code. Notwithstanding the foregoing or any provision in this Agreement to the contrary, Company does not warrant or promise compliance with Section 409A, and Employee understands and agrees that he shall not have any claim against Company with respect to Section 409A or for any good faith effort taken to comply with Section 409A."
"D. The above release does not waive claims: (1) for unemployment or workers compensation; (2) for Accrued Obligations, Other Benefits and other vested rights under ERISA-covered employee benefit plans as applicable on the date Employee signs this Release Agreement; (3) that may arise after Employee signs this Release Agreement; (4) to any right of indemnification as provided by, and in accordance with the terms of, the Employment Agreement, the Companys by-laws or a Company insurance policy providing such coverage, as any of such may be amended from time to time; or (5) which cannot be released by private agreement."
"I have read this Severance and Release Agreement. Company advised me to seek the advice of counsel regarding the meaning and effect of this Release Agreement, and I have had the opportunity to do so. I fully understand the terms of this Release Agreement and I understand it is a complete and final release of any of my claims against the Released Parties (as defined in this Release Agreement). I sign the Release Agreement as my own free act and deed."
"If Employee elects to continue participating in Banks group medical plan pursuant to rights which accrue under the Comprehensive Omnibus Reconciliation Act of 1985 as amended (COBRA) following the Termination Date, then as further consideration to Employee, and provided Employee does not exercise her right of rescission under Section 13 herein, Bank will subsidize Employees group medical premiums, as set forth in Section 3 below."
"Lump Sum Payment. (a) Payment Upon Retirement. Subject to the conditions precedent described in Section 2.1, the Company will make a lump sum cash payment to Executive in the amount of TWO MILLION SIX HUNDRED TWELVE THOUSAND TWO HUNDRED FIFTY DOLLARS AND NO CENTS (USD$2,612,250.00) less all applicable federal, state and local tax withholding and deductions, as soon as administratively practicable after the Retirement Date, but not later than 60 calendar days following the Retirement Date."
"2.2 Release. Not earlier than the Retirement Date, and not later than 21 days after the Retirement Date, Executive (or Executives estate, as applicable) shall execute and deliver to the Company the general release (the Release) in the form attached hereto as Exhibit A. Executive (or Executives estate, as applicable) shall have a period of seven days after executing the Release to revoke the Release by written notice of revocation given to the Company. Anything else contained herein to the contrary notwithstanding, if Executive (or Executives estate, as applicable), either fails to execute and deliver the Release, or revokes in writing the Release, within the time periods described above, the payment shall be immediately forfeited and Executive (or Executives estate, as applicable) shall have no rights under this Agreement."
"(a) Solicit any business competitive with any Company business from any person or entity who: (i) was a Company provider or customer within the 18 months before the Retirement Date and (ii) with whom Executive had contact to further the Companys business or for whom Executive performed services, or supervised the provision of services for, during Executives employment;"
"(d) Engage or participate in, or in any way render services or assistance to, any business that competes, directly or indirectly, with any Company product or service that Executive participated in, engaged in, or had Confidential Information regarding, in any geographic territory over which Executive had responsibilities, during the 18 months before the Retirement Date;"
"Executive may serve as a director or otherwise seek and accept employment with any business that is not a direct competitor to the Company as described in this Section 2.3, with the understanding that should Executive gain employment at other employers in the future, that the Company has conflict of interest guidelines in effect that may impact its purchasing relationships and practices with such possible employers, as stated in Caterpillar's Purchasing Practices No. 49. If Executive violates the promises in this Section 2.3 or in Section 2.4, 2.5, 2.6 or 2.7, in addition to all other remedies, Executive shall not be entitled to receive any further payments or benefits under this Agreement, and Executive agrees to repay to the Company amounts previously paid to him under this Agreement."
"3.3 Section 409A of the Code. Executive understands and agrees that the payment made pursuant to this Agreement does not constitute deferred compensation for purposes of Section 409A of the Internal Revenue Code of 1986 and its accompanying regulations (Section 409A). Specifically, the payment will be made in a manner that will cause it to be a short-term deferral as described in Treas. Reg.  1.409A-1(b)(4) and the Company will treat and report such payment in a manner consistent with the preceding. This Agreement shall be implemented and construed in a manner to give effect to the foregoing. In no event whatsoever shall the Company be liable for any tax, interest or penalties that may be imposed on Executive pursuant to Section 409A for any reason. The Company shall not have any obligation to indemnify or otherwise hold Executive harmless from any such taxes, interest or penalties, or liability for any damages related thereto."
"3.7 Judicial Modification and Severability. If any of this Agreements provisions is determined to be unenforceable, Executive and Company both agree that such provision should be modified so that it is enforceable or, if modification is not possible, that it should be severed, and the enforceability of the remaining provisions will not be affected by such modification or severance."
"All of the above companies agents, directors, officers, employees, representatives, fiduciaries, shareholders, successors and assigns. Executive acknowledges that prior to execution of the Agreement he had no right to receive the cash payment and benefits provided for by the Agreement, and that under the terms of the Agreement his receipt of, and right to receive the payment and benefits is expressly conditioned upon his executing, and not revoking, this Release."
"Any federal statute, including: the False Claims Act (including any right to share in any recovery by the United States government); Title VII of the Civil Rights Act of 1964; the Civil Rights Act of 1866; the Civil Rights Act of 1874; the Age Discrimination in Employment Act (ADEA); the Equal Pay Act; the Americans with Disabilities Act; the Employee Retirement Income Security Act of 1974; and the National Labor Relations Act; | ---|--- "
"The Company agrees and acknowledges that, on the Effective Date, the Company shall consider Retirees departure from the Company to be a Retirement as defined by the LTIP Agreements and Section2.34 of the LTIP with respect to all outstanding grants of Options, Restricted Stock Units and Performance Shares previously awarded in the LTIP Agreements, including any such grants made to Retiree on or after February 18, 2015; provided, however, that the Company will not deem Retirees departure a Retirement if Retiree does not strictly adhere to the definition of Retirement as set forth in the ---|---|--- * * *"
" | a) | Retiree, on behalf of himself, his heirs, executors, administrators, successors and assigns, hereby irrevocably and unconditionally releases the Company and its parents, subsidiaries, divisions and Affiliates, together with their respective current and former owners, assigns, agents, Supervisory Board members, directors, partners, officers, employees, attorneys and representatives and any of their predecessors and successors and each of their estates, heirs and assigns (all both individually and in their official capacities, and collectively, the Company Releasees) from any and all complaints, claims, liabilities, obligations, promises, agreements, causes of action, rights, costs, losses, debts and expenses of any nature whatsoever, known or unknown, which Retiree or his heirs, executors, administrators, successors or assigns ever had, now have or hereafter can, will or may have (either directly, indirectly, derivatively or in any other representative capacity) by reason of any matter, fact or cause whatsoever against the Company or any of the other Company Releasees from the commencement of employment with the Company Releasees to the close of business on the date of retirement, except those claims which cannot be released as a matter of law or as arise under this Agreement. This release includes all claims arising out of, or relating to, Retirees employment with or retirement from employment with the Company Releasees, including but not limited to, any and all claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., as amended by the Civil Rights Act of 1991; the Civil Rights Act of 1866, 42 U.S.C. 1981 and 1985; the Retiree ---|---|--- * * *"
" | (iii) | Notwithstanding any provision to the contrary in any agreement or plan, Retiree shall be obligated to forfeit to the Company any Options that vested on an accelerated basis as a result of Retirees representation of Retirement to Company. In the event Retiree has already sold said Options, then Retiree shall be obligated to pay to the Company the cash equivalent of any gain above the Option Price Retiree earned on the sale of said Options immediately upon demand. ---|---|--- "
" | d) | Non-Solicitation. For a period of 2 years following the Effective Date, Retiree shall not, either on Retirees own behalf or on behalf of any person or entity (either directly or indirectly via a corporate recruiter, headhunter or any other individual or entity) attempt to induce or otherwise entice any other Retiree of the Company to leave the employment of the Company. Retiree agrees that he will not, either individually or on behalf of any person or entity, (i)attempt to hire or hire any of the employees of the Company during this period or (ii)otherwise initiate communications with the employees of the Company concerning any such employee ceasing employment with the Company during this period. ---|---|--- "
" | ii) | Independent Contractor Status. The Company and Retiree expressly agree and understand that Retiree will perform the Services as an independent contractor and nothing in this Release nor the Services rendered hereunder is meant, or shall be construed in any way or manner, to create between Retiree and the Company a relationship of employer and employee, principal and agent, partners or any other relationship other than that of independent parties contracting with each other solely for the purpose of carrying out the Services. Accordingly, Retiree acknowledges and agrees that he shall not be entitled to any compensation or benefits provided by the ---|---|---  | ---|--- * * *"
" | d) | Retiree understands that for a period of seven (7)days following Retirees execution of this Release, Retiree may revoke the Release by notifying the Companys Chief Legal Officer, in writing, of Retirees desire to do so. Provided that Retiree does not revoke this Release, and subject to the last sentence of Sec. 4) c) above, this Release shall become effective on the eighth (8th) calendar day after the date on which Retiree signs this Release (the Effective Date). In the event of a timely revocation by Retiree, this Release will be deemed null and void and the Company will have no obligations hereunder. ---|---|--- "
" | e) | Any consideration received pursuant hereto is subject to applicable taxes. Retiree acknowledges and agrees that the Company has made no representations regarding the tax consequences of any consideration received by Retiree, and Retiree further acknowledges and agrees that Retiree is solely liable and responsible, and will indemnify the Company and hold it harmless, for any consideration that may be deemed subject to withholding tax which were not withheld from these amounts. ---|---|--- 6) General Provisions."
" | ii) | Retiree and the Company agree that any dispute regarding the terms of this Release and/or the validity of this Release and its addenda, if any, shall be resolved through arbitration. Retiree and the Company hereby expressly acknowledge that Retirees position in the Company had, and the Companys business have, a substantial impact on interstate commerce and that Retirees involvement with the Company and the Companys business had a national and international territorial scope commercially. ---|---|--- "
" | (4) | The provisions of this Section shall survive and continue in full force and effect subsequent to and notwithstanding expiration or termination of this Agreement for any reason. The Company and the Retiree shall be equally responsible for the payment of the arbitration fees, including those of the arbitrator. The arbitrator shall have the right to award reasonable attorneys fees and costs to the prevailing Party. Retiree and the Company acknowledge and agree that any and all rights they may have to resolve their claims by a jury trial are hereby expressly waived. The provisions of this Section do not preclude Retiree from filing a complaint with any federal, state, or other governmental administrative agency, if applicable ---|---|--- "
" | d) | Retiree and the Company will neither make nor authorize any public statement to be made to any third party disparaging, defaming or criticizing the other in their business interests, conduct and/or affairs. The Company shall make reasonable efforts to cause its officers or any member of Board of Directors to comply with this requirement. ---|---|--- "
" | h) | This Release was jointly prepared by the Company and Retiree, and any uncertainty or ambiguity existing in it shall not be interpreted against any party as the primary drafter of this Release. The language of all parts of this Release shall in all cases be construed as a whole, according to its meaning and not strictly for or against any of the parties. ---|---|--- * * *"
"(f) Voting Standstill for the Series B Preferred Stock. Executive acknowledges and agrees that he is the sole holder of all shares of the Companys preferred stock that is outstanding as of the Termination Date (the Preferred Shares). Beginning on the Termination Date through the date the Company sells its equity and/or debt securities for aggregate gross proceeds equal to at least $400,000 (the Financing), which Financing shall occur on or prior to the 60th calendar day after the Termination Date, Executive will not, directly or indirectly, without the prior written consent of Infusion 51a, LP (Infusion), vote, or otherwise exercise and rights associated with, the Preferred Shares. In addition, Executive agrees not to sell, transfer, assign, offer, pledge, directly or indirectly, any of Preferred Shares. Executive further represents that there is no other class or series of Preferred Stock issued by the Company. Executive acknowledges and agrees that appropriate remedy at law for a breach or threatened breach of any of the this voting restriction would be inadequate and, in recognition of this fact, in the event of a breach or threatened breach by Executive it is agreed that, in addition to its remedy at law, the Company or Infusion shall be entitled, without posting any bond, to equitable relief in the form of specific performance, temporary restraining order, temporary or permanent injunction or any other equitable remedy which may then be available. Upon the consummation of the Financing, Executive acknowledges and agrees that all Preferred Shares shall be cancelled and forfeited and shall have no further force and effect."
"3\. Full Payment; Termination of Employment Agreement. Other than as set forth in Section 2 above, Executive shall not be entitled to any other payments including but not limited to bonuses, reimbursements, commissions, or other cash or non-cash awards, penalties, interest or attorneys fees, and Executive expressly represents that Executive has been compensated for all monies owed to Executive from Executives employment with the Company. On the Termination Date, all provisions of the Employment Agreement, other than the Surviving Provisions and Section 9.02 of the Employment Agreement, shall terminate and Executive shall have no further rights thereunder."
"17\. Further Actions. The Company and Executive agree that in case at any time after the Termination Date any further action is necessary or desirable to carry out the purposes of this Agreement, including any documents requested by any underwriter or placement agent in connection with any offering of the Companys equity and/or debt securities, each of the parties hereto will take such further action (including without limitation, the execution and delivery of such further instruments and documents) as any other party hereto 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."
"| | | | | | ---|---|---|---|---|---|--- 1. |  | BASIC LEASE TERMS |  |  | 1 |  | | 2. |  | PREMISES |  |  | 4 |  | | 3. |  | TERM |  |  | 5 |  | | 4. |  | RENT AND OPERATING EXPENSES |  |  | 6 |  | | 5. |  | USE |  |  | 10 |  | | 6. |  | PREMISES FACILITIES, BUILDING & PROJECT COMMON AREAS |  |  | 12 |  | | 7. |  | MAINTENANCE, REPAIRS AND ALTERATIONS |  |  | 14 |  | | 8. |  | TAXES AND ASSESSMENTS ON TENANTS PROPERTY |  |  | 17 |  | | 9. |  | UTILITIES AND SERVICES |  |  | 17 |  | | 10. |  | SUBLETTING AND ASSIGNMENT |  |  | 20 |  | | 11. |  | INSURANCE AND INDEMNITY |  |  | 23 |  | | 12. |  | DAMAGE OR DESTRUCTION |  |  | 25 |  | | 13. |  | EMINENT DOMAIN |  |  | 26 |  | | 14. |  | SUBORDINATION; ESTOPPEL CERTIFICATE |  |  | 27 |  | | 15. |  | DEFAULTS AND REMEDIES |  |  | 28 |  | | 16. |  | END OF TERM |  |  | 32 |  | | 17. |  | PAYMENTS AND NOTICES |  |  | 32 |  | | 18. |  | LIMITATION OF LIABILITY |  |  | 33 |  | | 19. |  | TRANSFER OF LANDLORDS INTEREST |  |  | 33 |  | | 20. |  | MISCELLANEOUS |  |  | 33 |  "
"2.3. | Building Name and Address: ---|--- Tenant shall not utilize any name selected by Landlord from time to time for the Building and/or the Project as any part of Tenants corporate or trade name. Landlord shall have the right to change the name of the Project or the address of the Building without notice or liability. However, Landlord shall only change the address of the Building if reasonably required by governmental authority. Landlord agrees not to utilize the name or trademark of Tenant, its subsidiaries or affiliates without Tenants written approval."
"3.5 | Right of First Offer: ---|--- Provided there is no uncured default of this Lease by Tenant, Tenant shall have a Right of First Offerwith respect to any previously occupied space in the Building (First Offer Space). The Right of First Offer is subject to all options/extensions/renewals previously granted by Landlord (including but not limited to: any expansion right and renewal options) (collectively the Superior Rights). In the event any First Offer Space becomes available (and is not subject to any Superior Rights), Landlord shall provide writtennotice to Tenant (First Offer Notice). The First Offer Notice shall contain the following Material Terms: a description of the First Offer Space, the date on which the Landlord expects the First Offer Space to become available, thelease term, tenant improvement allowance, if any, concessions, if any, and the Base Rent. If Tenant declines or fails to duly and timely exercise its Right of First Offer within 14 days following receipt of the First Offer Notice, Landlord shall thereafter be free to lease the Premises to any third- party, at any time, without regard to the restrictions in this Section and on whatever terms and conditions Landlord may decide, in its sole discretion, provided the Material Terms, are not more favorable to such third-party purchaser than those set forth in the First Offer Notice, without again complying with all the provisions of this Section."
"Tenant shall pay to Landlord one-twelfth (1/12th)of the amount of the Excess for the operative calendar lease year in question on each monthly rent payment date of such calendar lease year. Landlords determination of the annual budget for Operating Expenses and the Excess following the Base Year shall be provided to Tenant after the commencement of the calendar lease year and within a commercially reasonable period of time. Until such determination is provided, Tenant shall pay the Excess, if any, for the prior calendar year on each monthly rent payment date. Following the determination and presentation to Tenant of the budget for Operating Expenses and the Excess for the operative calendar lease year, Tenant shall pay the amount of any unpaid Excess attributable to such operative calendar lease year on the next monthly rent payment date. During a lease year, Landlord may reasonably adjust Tenants monthly payment of the Excess to reflect the then current Operating Expenses and actual expenditures made during the elapsed portion of the operative lease year."
"Tenant may conduct business operations in the Premises twenty-four (24)hours per day, seven (7)days per week as part of its Permitted Use and without incurring any additional charges for Additional Rent; except, for any charges associated with such extended operations, including without limitation, a reasonable charge for the increased use, repair and maintenance of the Building Systems or Building Common Areas and the wear and tear of the Building, its fixtures and equipment."
"The following items shall not be included in Operating Expenses: (i)maintenance or repair expenses which under generally accepted accounting standards would not be considered a maintenance or repair expense for a commercial office/light industrial facility, excluding therefrom the Special Improvements set forth in subsection 4.2.d, (ii)costs associated with the operation of the business of the entity which constitutes the Landlord, including, but not limited to, the legal and accounting costs associated with the leasing, selling, syndicating, financing, mortgaging, or hypothecating of any of Landlords interest in the Building or Project, the costs of disputes between Landlord and its tenants, (iii)costs of any services provided to tenants in the Building for which Landlord is entitled to reimbursement, (iv)expenses in connection with services provided solely to the premises of other tenants which are of no benefit to Tenant, (v)depreciation and/or amortization of the Building, except as set forth in subsection 4.2.d, (vi)the cost of repairs or other work incurred by reason of fire, windstorm or other casualty, but only to the extent reimbursed by insurance, (vii)Landlords personal and corporate taxes, inheritance and estate taxes, franchise, gift or transfer taxes, (viii)the cost of preparing any space for any tenant or prospective tenant of the Project or costs associated with any space presently deemed to be rentable space; (ix)costs incurred in leasing or obtaining new tenants or retaining existing tenants, including leasing commissions, attorneys fees, or the cost of advertising and promotion; (x)attorneys fees incurred in enforcing the terms of any lease; (xi)any amount paid to an entity or individual affiliated with Landlord which exceeds the amount which would be paid for similar goods or services on an arms-length basis between unrelated parties; (xii)capital improvements, except those in subsection 4.2.d below; (xiii)expenses resulting from any violation by Landlord of"
"5.1. | Use: ---|--- Tenant shall use the Premises for commercial office purposes only or such other purposes as stated in Section1.16. Tenant shall not use or occupy the Premises in violation of the rules and regulations set forth in Exhibit D. Tenant shall not do or permit anything within the Premises that will cause the cancellation of or increase the existing rate of fire or other insurance upon the Premises or Building. Tenant shall not obstruct or interfere with the reasonable rights of other tenants or occupants of the Building or Project. Tenant shall prevent odors, emissions, fumes, liquids or other substances or excessive noise from extending beyond the Premises. Tenant shall refrain from using or permitting the"
"5.2. | Hazardous Materials: ---|--- Neither party to this Lease shall cause or knowingly permit any Hazardous Materials (as defined below) to be brought upon, kept or used in or about the Building, Project or Premises unless such Hazardous Materials are (i)necessary for that parties business or for the maintenance, repair or cleaning of the Project and Buildings situated therein, and (ii)will be used, kept and stored in a manner that complies with all Hazardous Material Laws (as defined below). Should a party fail to fulfill its obligations as stated herein with regard to Hazardous Materials, then such party shall indemnify, defend and hold harmless the other party, including its partners, affiliates, employees, contractors, representatives, lenders, successors and assigns (collectively, the Indemnified Parties), from any and all claims, judgments, penalties, fines, and losses including reasonable attorneys fees, consultant and expert fees. This indemnification includes, without limitation, the costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision or required to return the property to the condition existing prior to the introduction of any such Hazardous Materials. The obligations of the parties hereunder shall survive the expiration or earlier termination of the Lease."
"Landlord represents and warrants that as of the Commencement Date the Building does not contain toxic or hazardous materials or substances in violation of any applicable Hazardous Material Laws and Landlord agrees to use reasonable efforts to cause other tenants at the Building to comply, with all Hazardous Material Laws concerning the proper storage, handling and disposal of any toxic or hazardous materials or substances."
"maintenance, (iii)the cost of removal upon the termination of the Lease, and (iv)the cost of repairing or repainting any visible impairment to the Building resulting from the installation or removal of Tenants Building Signage. Landlord hereby reserves the exclusive right to control the use of the roof and exterior walls of the Building. Landlord reserves the right to remove any Building Signage not in compliance with the Master Sign Plan. All reasonable costs and expenses incurred by Landlord due to such removal shall be paid by Tenant in the next months Additional Rent. Landlord reserves the right to remove Building Signage during any period of Building repair, restoration or construction, provided that Landlord immediately restores such signage, at its expense, upon completion of Landlords work."
"6.2. | Use of Building Common Area: ---|--- Tenants right of occupancy of the Premises shall include the non-exclusive use of the Building Common Areas in common with Landlord and other tenants, subject to compliance with the rules and regulations set forth in Exhibit D or as otherwise reasonably prescribed from time to time by Landlord. Landlord shall operate and maintain the Building Common Areas in a commercially reasonable manner consistent with other similar master planned parks in Clark County, Nevada. Landlord shall have exclusive control over the Building Common Areas, and may restrain any unreasonable use or occupancy thereof, except as authorized herein. Tenant shall keep the Building Common Areas clear of any obstruction or unauthorized use related to Tenants operations. Tenant, its employees, customers and invitees utilize the Building Common Areas at their own risk. Except in the event of Landlords negligence or willful misconduct, Landlord is not responsible for any damage or injury to or loss of the property of, Tenant, its employees, customers or invitees. Provided the Tenants access to the Premises and use of the Buildings parking area is not unreasonably denied or hindered, Landlord may temporarily close any portion of the Building Common Areas for repairs or alterations, or to prevent a public dedication or the accrual of prescriptive rights. Under no circumstances shall the right herein granted to use the Building Common Areas be deemed to include the right to store any property, temporarily or permanently, on the Building Common Areas which includes the installation or storage of any tenant system, equipment, including but not limited to HVAC or telephone systems, in any common electric, telephone, or mechanical room without the prior written consent of Landlord and pre-payment of storage fees. In the event of any unauthorized storage, Landlord shall have the right, without notice, in addition to any other rights and remedies, to remove the property and charge the reasonable cost to Tenant, which cost shall be immediately payable upon demand by Landlord."
"cost of efforts to ensure a readily accessible ADA Title III path of travel, whether within the Premises or not, when such efforts are required as the result of alterations made at the request of Landlord. Any modifications to the interior of the Premises to ensure a readily accessible ADA Title III path of travel which are required under the ADA or Health Laws due to Tenants Construction Drawings or specific use thereof shall be charged against the Tenant Improvement Allowance, if any, or made by Tenant, at Tenants sole cost and expense, in an expeditious and commercially reasonable manner."
" | b. | Remedy for Failure to Perform ---|---|--- If Tenant fails to perform its obligations under this Section7.2, Landlord may enter upon the Premises, provided within ten (10)days prior written notice to Tenant, Tenant shall fail to commence a cure through completion (except in the case of emergency, in which event, no notice shall be required), perform such obligations on Tenants behalf and put the Premises in good order, condition and repair, and the cost thereof shall be due and payable as additional rent together with Tenants next Base Rent installment plus an administrative fee equal to five percent (5%)of the cost incurred by Landlord."
"procedures for Tenants construction of improvements set forth in Exhibit C. Landlord may require that Tenant provide a lien and completion bond in an amount equal to the estimated cost of such improvements. At Landlords discretion, Tenants failure under this subsection to obtain Landlords prior written approval, if necessary, may result in the removal of the alteration or improvement at Tenants sole expense. During the Lease term, should either Landlord or Tenant be required by court order, governmental authority or a newly enacted law, code or ordinance, to alter or improve any part of the Premises due to Tenants specific use, interior space plan or alteration of the Premises, then Tenant shall make or permit Landlord to make such alterations or improvements at Tenants sole cost and expense, and the parties shall cooperate with each other to minimize disruption to Tenants business operations and Tenant hereby waives all claims for damages or abatement of rent because of such mandated alteration or improvement. Under no circumstances shall Tenant enter upon the Project/Building roof or make any roof penetrations without the prior written consent of Landlord. Any consent of Landlord shall be conditioned upon Landlords review and approval of plans satisfactory to Landlord for the repair of the roof. At Landlords option, any roof penetrations shall be performed by Landlords roofing contractor, and Tenant shall reimburse Landlord for the cost thereof and any necessary repair work within fifteen (15)days after Tenants receipt of an invoice therefore."
" | c. | Cleaning. ---|---|--- Tenant contracts directly for janitorial services within the Premises. As an Operating Expense, Landlord shall cause the Building Common Areas to be cleaned daily, Monday through Friday, during evening hours. Tenant shall pay any additional trash removal costs imposed upon Landlord due to Tenants excessive trash or large items. Tenant shall have the option of independently contracting for the removal of such items."
"Endorsement not less than five (5)business days prior to Tenants occupancy of the Premises for business operations and not less than fifteen (15)days prior to the expiration of any operative endorsement.Tenant shall also procure adequate insurance to cover all of Tenants obligations under this lease, including, but not limited to, Tenants obligations to indemnify Landlord as set forth in Section11.5 below. If Tenant carries any of the insurance required hereunder in the form of a blanket policy, any certificate required hereunder shall make specific reference to the Premises, provided, however, the blanket policy carried with respect to the insurance required by Tenant hereunder shall contain a per location endorsement assuring that any aggregate limit under such blanket policy shall apply separately to the Premises and that the insurer thereunder shall provide written notice to Landlord if the available portion of such aggregate is reduced to less than the minimum amounts required under this Article by either payment of claims or the establishment of reserves for claims, (whereupon Tenant shall be obligated to take immediate steps to increase the amount of its insurance coverage in order to satisfy the minimum requirements set forth in Section11.2). The policy evidencing insurance required to be carried by Tenant pursuant to this Article shall provide coverage on an occurrence basis. The limits of the insurance coverage required by Landlord or the unavailability of certain types of coverage shall not limit or release Tenant from any of its obligations under this Lease and the existence of such insurance in no way changes Tenants obligations to Landlord."
"Tenant shall not use, or allow the Premises to be used for any purpose which may be prohibited by the form of property insurance policy required to be carried under this Lease. Tenant shall pay any increase in premiums for liability and property (including all risk coverage) insurance that may be charged during the Term of this Lease on the amount of such insurance which may be carried by Landlord on the Premises, the Building or the Project resulting from Tenants occupancy, whether or not Landlord has consented thereto. In such event, Tenant shall also pay any additional premium on the insurance policy that Landlord may carry for its protection against rent loss through fire or casualty. In determining whether increased premiums are the result of Tenants use of the Premises, a schedule, issued by the organization setting the insurance rate on the Premises, showing the various components of such rate, shall be conclusive evidence of the several items and charges which make up the casualty and fire insurance rate on the Premises. Landlord shall deliver invoices for such additional premiums to Tenant at such times as Landlord may elect, and Tenant shall immediately reimburse Landlord therefore."
"11.2. | Landlords Insurance ---|--- At all times during Tenants occupancy of the Premises, Landlord shall maintain commercial general liability and all risk property insurance, subject to standard exclusions, covering the Project, Building, the Tenant Improvements covered by a Tenant Improvement Allowance, and such other risks as Landlord or its mortgagees may from time to time reasonably deem appropriate. Such insurance shall be reasonable in relation to the value of the Building and Project, and the common practice of landlords of comparable properties in Clark County and utilizing commercially reasonable deductibles. Landlord shall have the right to obtain terrorism, flood and earthquake insurance and other forms of insurance required by any lender holding a security interest in the Building or any ground lessor. Landlord shall not be required to carry insurance of any kind on (i)leasehold improvements paid for by Tenant, (ii)Tenants trade fixtures, furnishings, and equipment, (iii)Tenants signs, whether attached to the Premises or Building, (iv)and any other items of Tenants personal property, hereafter Tenants Property, and shall not be obligated to repair or replace Tenants Property should damage occur, except to the extent caused by the negligent acts of Landlord. All proceeds of insurance maintained by Landlord upon the Premises (including the Tenant Improvements) and Project shall be the property of Landlord."
"11.4. | Policies: ---|--- All insurance to be maintained by Tenant and Landlord under this Lease shall be procured from an insurance company or companies rated at least A-/VII or better in Bests Insurance Guide and admitted in the State of Nevada, and Tenant shall deliver to Landlord, prior to taking occupancy of the Premises, Certificates of Insurance required to be maintained by Tenant hereunder. The certificates evidencing such insurance shall provide that the insurance shall not be canceled except after thirty (30)days prior written notice of intention to modify or cancel has been given to Landlord and any encumbrancer named as beneficiary thereunder. Tenant shall deliver to Landlord evidence of renewal at least fifteen (15)days prior to the expiration date of any policy to be maintained by Tenant hereunder. If Tenant fails to deliver evidence of insurance required hereunder within the prescribed period or if such policy is canceled during the operative term of the Lease without Landlords consent, Landlord may (but is not required to) obtain such insurance and the costs thereof shall be reimbursed by Tenant within thirty (30)days of receipt of invoice together with a twenty-five percent (25%)handling charge."
"11.5. | Tenants Indemnity: ---|--- Subject to Section11.3, Tenant shall defend, indemnify and hold harmless Landlord, its agents, affiliates, partners, or other entities controlling, controlled by, or under common control with, Landlord, from and against any claims or liabilities arising during anytime Tenant is in, using and/or occupying the Premises, Building or Project, from; (i)Tenants use or occupancy of the Premises, the Building or the Project, including those arising from accident, injury, or damage, to the extent caused by Tenant (except to the extent of any claim arising out of Landlords negligence or willful misconduct), (ii)a breach or default in the performance of Tenants obligations under the Lease (following any applicable notice and cure period), or (iii)from any negligent act or willful misconduct of Tenant, its agents, employees, contractors, invitees or licensees. In case Landlord, its agents or affiliates are made a party to any litigation commenced against Tenant, then Tenant shall protect and hold Landlord harmless and shall pay all reasonable costs, expenses and reasonable attorneys fees incurred or paid by Landlord in connection with the litigation. The indemnity herein provided shall be for the exclusive benefit of the Landlord, its agents and employees, successors and assigns, and shall not inure to the benefit of any third party."
" | a. | Damage Repair ---|---|--- If the Building is damaged, through no fault of Tenant, or its employees, customers or invitees, Landlord shall repair that damage as soon as reasonably possible to the condition immediately preceding the damage, within one hundred eighty (180)days after the date of the casualty (excluding permitting time), unless: (i)Landlord reasonably determines that the cost of"
"13.3. | Taking of Parking Area: ---|--- In the event there shall be a taking of Tenants Parking Area such that Tenants allocation falls below that set forth in Section1.2, Landlord shall substitute reasonably equivalent parking in a location adjacent to the Parking Area or Building; provided that if Landlord fails to make that substitution within fifteen (15)days following the taking and if the taking materially impairs Tenants use and enjoyment of the Premises, Tenant may, at its option, terminate this Lease by notice to Landlord. If this Lease is not so terminated by Tenant, there shall be no abatement of rent and this Lease shall continue in effect."
 | b. | Failure to Perform ---|---|--- Tenants failure to deliver any Landlord estoppel statement within the provided time shall be deemed a material breach of this Lease (provided Landlord shall provide Tenant with a additional ten (10)days prior written notice before Landlord exercises any of its Lease remedies for such a material breach).
" | a. | Abandonment ---|---|--- The abandonment of the Premises by TenantAbandonment is defined to include, but not limited to, any absence by Tenant from the Premises for thirty (30)consecutive calendar days (or longer) or sixty (60)business days (whether consecutive or not) in any calendar year accompanied by Tenants failure to pay rent during the abandonment period."
" | a. | Landlord Declares Breach: ---|---|--- Should Landlord declare a breach of this Lease after Tenants failure to cure a default within the applicable cure period after notice from Landlord, Landlord may, at its option, give Tenant notice of the intention to terminate this Lease and, after such cure period as may be applicable, the operative term shall expire as if it were the day herein established for the expiration of the Lease and Tenant shall quit and surrender the Premises to Landlord, but Tenant shall remain liable as hereinafter provided. If Tenant fails to quit and surrender the Premises, Landlord may exercise its legal rights to evict the Tenant and all other occupants of the Premises by unlawful detainer or other summary proceedings, and remove their effects and regain possession of the Premises."
" | b. | Breach by Tenant: ---|---|--- Notwithstanding Tenants breach, this Lease shall not terminate unless Landlord elects, at any time during the period of breach, to terminate Tenants right to possession. For so long as this Lease continues in effect, Landlord may enforce all of Landlords rights and remedies hereunder, including the right to recover all rent as it becomes due. The following shall not constitute a termination of Tenants right to possession (i)reasonable acts of maintenance or repair to the Premises, Building or Project, (ii)commercially reasonable efforts to relet the Premises, or (iii)the appointment of a receiver upon initiative of Landlord to protect Landlords interest under this Lease."
" | g. | Adequate Performance: ---|---|--- Following the occurrence of an Event of Bankruptcy Landlord and Tenant hereby agree, in advance, that adequate assurance of future performance, as used in the preceding subsection, shall mean that all of the following minimum criteria must be met; (i)Tenant must pay its estimated pro rata share of Operating Expenses in advance of the performance such services, (ii)The Trustee must agree that Tenants business shall be conducted in a first class manner, and that no liquidating sales, auctions, or other non-first class business operations shall be conducted in the Premises; (iii)The Trustee must agree that the use of the Premises as stated in this Lease will remain unchanged and that no prohibited use shall be permitted; and (iv)The Trustee must agree that the assumption of this Lease will not violate or affect the right of other tenants in the Project."
"15.3. | Expenses and Legal Fees: ---|--- Each party shall reimburse the other upon demand, for any reasonable expenses incurred in connection with any breach or default of such other party under this Article15\. Such expenses shall include reasonable legal fees and costs incurred for the negotiation of a settlement, enforcement of rights or otherwise. Consistent with Section18 below, in no event shall Landlord be permitted to recover consequential, punitive, or exemplary damages from Landlord based on any such uncured default of Tenant, or otherwise."
"20.5. | Severability: ---|--- If any term or provision of this Lease, the deletion of which would not adversely affect the receipt of any material benefit by either party or the deletion of which is consented to by the party adversely affected, shall be held invalid or unenforceable to any extent, the remainder of this Lease shall not be affected and each term and provision of this Lease shall be valid and enforceable to the fullest extent permitted by law."
"20.7. | Recording: ---|--- Tenant shall not record or file this Lease or any form of Memorandum of Lease, or any assignment or security document pertaining to this Lease or all or any part of Tenants interest therein without the prior written consent of Landlord, which consent may be subject to such conditions as Landlord shall reasonably deem appropriate. If such consent is granted Tenant will pay all recording fees, costs, taxes and other expenses for the recording. However, upon the request of Landlord, both parties shall execute a memorandum or short form of this Lease for the purposes of recordation in a form customarily used for such purposes. Said memorandum or short form of this Lease shall describe the parties, the Premises and the Lease Term and shall incorporate this Lease by reference."
"20.10.Choice | of Law: ---|--- This Lease shall be construed in accordance with and governed by the statutes, decisions, and other laws of the State of Nevada. Tenant hereby consents to the personal jurisdiction and venue of any State court of competent jurisdiction located in Clark County, Nevada or Federal court located in Las Vegas, Nevada and the service of process by any means authorized by any such State or Federal court."
"20.12.Force | Majeure: ---|--- Any prevention, delay or stoppage due to any Force Majeure Delay shall excuse the performance of the party affected for a period of time equal to any such prevention, delay or stoppage (except the obligations of either party to pay money, including rental and other charges, pursuant to the Lease). The term Force Majeure Delay shall mean any delay incurred by either party attributable to any: (i)actual delay or failure to perform caused by a strike, lockout or other labor disturbance, civil disturbance, act of war, riot, sabotage or embargo; (ii)delay due to changes in any applicable laws or ordinances (including without limitation, the ADA); or (iii)delay attributable to lighting, earthquake, fire, storm, hurricane, tornado, flood, washout, explosion or any other similar cause beyond the reasonable control of the party from whom performance is required, or its contractors and representatives."
"20.18.No | Partnership: ---|--- It is agreed that nothing contained in this Lease shall be deemed or construed as creating a partnership or joint venture between Landlord and Tenant or between Landlord and any other party, or cause Landlord to be responsible in any way for the debts or obligations of Tenant or any other party."
"(b) Without limiting the generality of (a)above, Tenant expressly agrees to comply with and be bound by (i)the Master Landlords Airport Rules and Regulations and Operating Directives, (ii)the non-discrimination provisions of Article III of the Master Lease, and (iii)the provisions of the Master Lease governing operations and conduct at the Premises, which are hereby incorporated into this Lease by this reference."
"Contractor agrees on behalf of itself, its subcontractors, suppliers and consultants and their employees that there is no legal right to file a lien upon County-owned property and will not file a mechanics lien or otherwise assert any claim against Countys real estate or any Countys leasehold interest on account of any work done, labor performed or materials furnished under this contract. Contractor agrees to indemnify, defend and hold the County and Landlord harmless from any liens filed upon the Countys property and Countys leasehold interest and shall promptly take all necessary legal action to ensure the removal of any such lien at Contractors sole cost."
"Nevada limited liability company | | | | |  | Majestic Realty Co., a California corporation, Managers Agent |  | | | By: |  | /s/ Rob Roy | | | | By: |  | /s/ Edward P. Roski, Jr. |  | |  | Its: |  | Chief Executive Officer | | | | Its: |  | President and Chairman of the Board |  | |  | |  | | | | | By: |  |  |  | |  | |  | | | | | Its: |  |  |  | |  | |  | | | | | |  | MANAGER: |  | |  | |  | |  |"
"3.03 Tenant shall, upon the termination of its tenancy, provide Landlord with the combinations to all combination locks on safes, safe cabinets and vaults and deliver to Landlord all keys to the Building and all interior doors, cabinets, and other key-controlled mechanisms therein, whether or not such keys were furnished to Tenant by Landlord."
"5\. If the interest of Landlord under the lease shall be transferred by reason of foreclosure or other proceedings for enforcement of the Deed of Trust or the obligations which it secures or pursuant to a taking of a deed or assignment in lieu of foreclosure (or similar device), Tenant shall be bound to the Successor and the Successor shall be bound to Tenant under all terms, covenants and conditions of the Lease for the unexpired balance of the term thereof remaining (and any extensions, if exercised), with the same force and effect as if the Successor were the landlord, and Tenant does hereby (i)agree to attorn to the Successor, including lender if it be the Successor, as its landlord, (ii)affirm its obligation under the Lease and (iii)agree to make payments of all sums due under the Lease to the Successor, said attornment, affirmation and agreement to be effective and self-operative without the execution of any further instruments, upon the Successor succeeding to the interest of Landlord under the Lease."
"WHEREAS, County is the owner and operator of McCarran International Airport (hereinafter referred to as Airport) and wishes to cause the development and construction of retail/office/warehouse facilities (hereinafter referred to as Commercial Facilities) on property owned by Clark County within the Cooperative Management Area (defined below) and controlled by the Airport to ensure that the development of such property is compatible with Airport uses; and"
" | 1.1.5 | The term Assignee, whenever used herein, means (i)any assignee of Lenders interest in the Loan, or (ii)any purchaser or any heir, successor, or assign of the leasehold estate evidenced by-this Agreement that acquires such leasehold estate at or subsequent to a Foreclosure Transfer (as defined in Section2.19.11.1 below), as approved by County, to the extent such approval is required pursuant to Section2.19.11.1 below, or (iii)any assignee of Companys rights and duties under this Agreement pursuant to Section2.1 (entitled ASSIGNMENT) below. ---|---|--- "
" | 1.2.4 | As soon as practicable following the Approval Date, Company will be entitled to receive, as a Project Cost, an ALTA leasehold policy of title insurance, together with those endorsements reasonably deemed necessary by Company, all issued by a title company selected by Company, with liability in an amount reasonably determined by Company and insuring Companys interests hereunder. Such leasehold policy will be subject only to exceptions permitted by Company. ---|---|--- "
" | 1.3.1 | County does hereby demise and let unto Company and Company does hereby take from County the Premises ---|---|--- Company shall be responsible to provide County with a final legal description of the entire Premises under this Agreement, which includes the depiction of all current and proposed easements and/or rights-of-way that County has or may wish to retain. Company will submit a draft description, both narrative and graphic formats, to County for its review and County has the right to modify the documents to retain Countys interests in any easements and/or rights of way necessary for roads, utilities, and flood control. Once a final legal description is agreed upon by both parties, such legal description will be included in the Memorandum of Lease, as provided in Section1.2.3 above."
" | 1.4.3 | Company also agrees that use of the Premises is conditioned upon Companys agreement that it will not develop the Premises and/or adjoining or surrounding properties in a manner that County may find objectionable to Airport and/or aircraft operations. CDR, however, retains the sole right to determine, in its reasonable discretion, if the uses are Incompatible Uses or Compatible Uses, as defined below: ---|---|--- "
" | 1.4.3.1 | Incompatible Uses: The term Incompatible Uses means uses which potentially expose persons to elevated levels of aircraft generated noise or to areas identified as necessary to protect the safe passage of aircraft, or which have been determined by the Federal Aviation Administration (the FAA), the Director of the Department of Aviation, and/or the Airport Height Hazard Board of Adjustment to be hazardous to or incompatible with air navigation. Incompatible Uses include, but are not limited to: rural estate uses, residential uses, single family homes, mobile homes, low density, medium density and high density housing, apartments, group quarters, condominiums, time-sharing apartments, condominium hotels or motels, townhouses, churches, hospitals, care centers, nursing homes, schools, auditoriums and concert halls, fraternity and sorority housing, recreational vehicle parks, places of public assembly, amusement parks, outdoor sports arenas, zoos, uses that may in. the future be accessory to or enhance any of the uses described above on adjacent parcels, and uses intended to fulfill development and/or zoning requirements for any of the uses described above on an adjacent parcel (including, without limitation, open space, parking and landscaping requirements). The fact that any of the foregoing uses is permitted under the Clark County Code shall have no bearing on whether they constitute an Incompatible Use under this Restriction. ---|---|--- No sexually oriented business or adult use, as defined in the Clark County Code (e.g. CCC 6.110, 6.140, 6.160, 6.170, 7.54, 30.08.030, and 30.44.010 and as amended from time to time), or other laws, regulations and ordinances now in effect or hereinafter enacted that deal with such businesses and uses, shall be allowed upon any part of the Premises. No use for which a liquor or gaming license is required shall be allowed upon any part of the Premises without the written consent of County (refusal to consent to these uses is solely within the discretion of the Board of County Commissioners and does not need to be reasonable). Should County consent to a use involving a liquor or gaming license, Company shall pay all costs, including the cost of background investigations and attorney fees, relating to the licensing process. Notwithstanding the foregoing, CDR consents to liquor uses, subject to all normal and customary licensing procedures, in such restaurants as may be developed on the Premises."
"County reserves unto itself its successors and assigns, for the use and benefit of Aircraft owners, operators and the general public, a right of flight for the passage of Aircraft in the airspace above the Premises (including the Commercial Facilities constructed thereon), together with the right to cause in said airspace such noise as may be inherent in the operation of Aircraft, now known or hereafter used, for navigation, of or flight in said airspace, and for use of said airspace for landing at, taking off from or operating at the facilities now known as, or any future name or common reference that may be promulgated, adopted or referred to, McCarran International Airport, Nellis Air Force Base, North Las Vegas Airport, Overton Airport, Indian Springs Air Force Base, Henderson Executive Airport, Laughlin/Bullhead Airport, Searchlight Airport, Mesquite Airport, Boulder City Airport, and Jean Airport; or any and all future facility or facilities developed in the Ivanpah Valley, Pahrump Valley, and in the vicinity of the City of Mesquite (the Airports)."
" | 1.6.1.3.1 | If disapproved on reasonable grounds, CDR will inform Company in writing of its disapproval, describing the disapproved provisions of the proposed budget, and requesting further clarification of the budget elements. Company will respond within fourteen (14)days with verification of the budget elements or with a modified written budget, which is reasonably satisfactory to CDR. The Participating Parties agree to negotiate in good faith to resolve any conflicting issues that may arise. If CDR fails to timely respond, the proposed budget will be deemed approved and will become an Approved Budget. ---|---|--- "
" | 1.7.1.4 | In the event of default by Company and the subsequent foreclosure and sale of the leasehold interest to an Assignee as provided in Section2.19 (entitled FINANCING) below, and assuming County declines the right to assume the Loan (as provided in Section2.19 below), the above defined rentals wall be abated as described in Section2.19.9.11.2 below. Following satisfaction of the Loan obligation owed to an Assignee of Lender, payment to County of the rentals and fees as described in this Section1.7 will resume. ---|---|--- "
" | 1.7.6 | On or prior to April30, annually, during the term of this Agreement or any extension thereof and within ninety (90)days after the expiration of the term of this Agreement, Company will provide County with a statement showing the entire preceding years business operations, including revenue and expenses, which will be prepared in accordance with sound accounting principles. Such statement is to be prepared by Companys Certified Public Accountant and contain a written opinion as to whether the gross revenues and distribution of Net Revenue has been made in accordance with the provisions of this Agreement. Should such statements show that the amount paid during the period of review was less than that which was due, Company will immediately remit the additional amount to County. Should such statement show that Company paid County more than was due, after review and verification by CDR a credit will be issued to be applied against future Net Revenue, except that if such should be the case at the end of the last month of this Agreement, County will refund the overpayment to Company. ---|---|--- "
" | 1.10.2.1 | If Company has not commenced construction by the nineteenth (19th)month after the Approval Date, it will be a material breach of this Agreement and County will have the right of termination as defined in Section2.15 (entitled TERMINATION BY COUNTY) of this Agreement. County agrees to give Company ninety (90)days prior written notice before executing its right to terminate this Agreement County agrees not to exercise its right to terminate until any Lender has been given its rights to cure or foreclose on Company as provided in Section2.19 (entitled FINANCING) of this Agreement. ---|---|--- "
" | 1.10.6 | All improvements or alterations by Company will be in accordance with the Clark County Code, the Airports Rules and Regulations and the Airports Operating Directives, and all other applicable governmental rules and regulations. The shell drawings for the Initial Improvements are also subject to the prior written approval of CDR. In the event of a default hereunder by Company, Company will provide County copies of all the following documents which are in Companys possession: as-built drawings of all improvements, along with a certification of construction costs for all permanent improvements. ---|---|--- "
"1.12 | APPROVALS TO BE REASONABLY GIVEN ---|--- It is understood and agreed that all provisions of this Agreement which require approval by or the consent of the County or CDR, except those that are specifically noted as sole discretion (which still require responses in a timely manner), will receive timely response and such approvals or consents will not be unreasonably withheld, conditioned or delayed."
" | 2.1.1.2 | Before any assignment will become effective, the Assignee will, by written instrument, assume and agree to be bound by the terms and conditions of this Agreement during the remainder of the term thereafter. When seeking consent to an assignment hereunder, Company will submit a copy of the document or instrument of assignment to County. Any assignment will not release Company from its obligations under this Agreement arising prior to the date of assignment. ---|---|--- "
" | 2.2.1.3 | All license agreements of Company shall be entered into using a standard form of license agreement approved by County; provided, however, that in the course of negotiating the final terms of a particular license agreement, Company may make commercially reasonable revisions and modifications to the approved form of agreement as required to consummate the transaction, subject to the terms of Section2.2.1.4 below. ---|---|--- "
"2.11 | INDEMNITY ---|--- Company agrees to indemnify and hold County forever harmless from and against all liability, loss, demand, judgments or other expense (including, but not limited to, defense costs, expenses and reasonable attorney fees) imposed upon County by reason of injuries or death of persons (including wrongful death) and damages to property caused during and because of Companys use of occupancy of Airport property or the leased Premises or any actions or non- actions of Company, its officers, employees, agents, or other representatives, including movement of vehicles, provided, however, that such indemnity will not apply as to any negligent act or omission of County, its employees, agents or representatives."
" | 2.12.2.1 | Prior to the commencement of any improvement or equipment installation on or about the Premises, Company will require that its construction contractor procure and maintain insurance for such construction and installation protecting both Company and County as well as the construction contractor. Such insurance will provide coverage and limits as are determined customary in the industry by CDR and Company Such insurance will include, but is not limited to: ---|---|--- "
" | 2.12.2.7.4 | County, its officers, employees and volunteers must be covered as additional insureds with respect to liability arising out of the activities by or on behalf of the named insured in connection with this Agreement. All property insurance policies will contain a waiver of subrogation clause in favor of Clark County. ---|---|--- "
"2.14 | DAMAGE AND DESTRUCTION ---|--- In the event of damage, destruction, or substantial loss which materially impairs Companys ability to operate or loss to any improvements constructed upon the Premises, by any cause, which damage, destruction or loss is not capable of being repaired within sixty (60)days, Company will have the option to terminate this Agreement which option will be exercisable by written notice to County within ninety (90)days after the"
" | occurrence of such event. Any such termination by Company shall require the prior written consent of any Lender. In the event Company elects to terminate this Agreement based upon such damage, destruction, or substantial loss and Company or its employees or agents cause such damage, destruction or substantial loss to occur, Company will be liable for and will pay for all cleanup or demolition of the Premises necessary to make the Premises ready for repair, replacement, restoration or rebuilding which is not otherwise covered by insurance. In the event Company does not exercise such option, or in the event said damage, destruction or loss is capable of being repaired within sixty (60)days, then Company will promptly repair, replace, restore or rebuild said improvements. ---|--- "
" | 2.19.3.1 | Should Company default under the terms of this Agreement and should the default be such that it cannot be cured by the payment of money, County will accept payments of rent from such Lender and this Agreement will not terminate, but will remain in full force and effect, pending Lenders cure of such default within the time periods described herein or resort to foreclosure or sale proceedings under its deed of trust or other security instruments. ---|---|--- "
" | 2.19.6 | If any default has been cured by a Lender or Assignee, County agrees that upon completion of any foreclosure proceedings of sale under the deed of trust or other security securing the Loan, or upon delivery of a deed in lieu of foreclosure, Lender or Assignee at such sale or any heir, successor, or Assignee subsequent to such sale will be recognized by County as the lessee under the terms of this Agreement for all purposes for the remaining terms hereof, subject to Countys approval of such Assignee, to the extent such approval is required in Section2.19.11.1 below. The leasehold interest of Lender or such Assignee will not be adversely affected or terminated by reason of any non-monetary default occurring prior to the completion of such proceedings or sale, provided such default has been promptly remedied, or if such default requires possession to cure, provided such Lender promptly commences to cure upon taking possession of the Premises. ---|---|--- "
 | 2.19.7 | Such Lender will not become personally liable under the terms and obligations of this Agreement unless and until it assumes the obligations and is recognized by County as lessee under this Agreement and will be liable only so long as such Lender maintains ownership of the leasehold interest or estate and recourse to such Lender shall be limited solely to Leaders interest in the Premises. ---|---|--- 
" | (a) | that this Agreement is the only agreement between County and Company concerning the leased Premises and is unmodified and in full force and effect in accordance with the terms (or if there have been modifications, that this Agreement is in force and effect as modified, and identifying the modification agreements, or if this Agreement is not in full force and effect, that it is not); ---|---|--- "
" | (c) | whether or not there is an existing default by Company in the payment of rental or any other sum of money under this Agreement, and whether or not there is any other existing default by either party under this Agreement with respect to which a notice of default has been served, and if there is such a default specifying its nature and extent; ---|---|--- "
" | 2.19.11.1 | Following any foreclosure, deed in lieu of foreclosure, or other transfer in full or partial satisfaction of Lenders Loan (a Foreclosure Transfer), County shall recognize Lender or any Lender Affiliate (defined below) designated by Lender as an Assignee (Permitted Assignee). Such Permitted Assignee shall be the ground lessee under this Agreement without further consent or approval by County. In the event of a proposed assignment to an Assignee other than a Permitted Assignee, whether in connection with a Foreclosure Transfer or any subsequent assignment of the leasehold interest evidenced by this Agreement made by Lender or its Permitted Assignee (who shall have obtained such interest through a Foreclosure Transfer), County shall have the right to reasonably approve such Assignee as provided in Section2.1.1 above. As used in this Section2.19.11.1, Lender Affiliate means a corporation, limited liability company or other entity which controls, is owned or controlled by, or is under common ownership or control with such Lender and such Lender has a net worth of at least Twenty Million Dollars ($20,000,000). ---|---|--- "
" | 2.19.11.2 | In the event Lender gives County forty-five (45)days notice of a default by Company under any approved Loan and County declines the right to assume the financial obligation of Company under the Loan, the parties agree that Lender or any Leader Affiliate will be permitted to consider the total unpaid balance of the existing Loan on the date of either (a)Lenders assumption of the lease or assignment to a Lender Affiliate through foreclosure sale, or (b)if through a deed or assignment in lieu of foreclosure, on the date of the recording of such deed, as an equity contribution to be repaid from all available Net Revenue with interest at the same rate set forth in Section1.7.1.2 above (11% per annum) until such time as the total unpaid balance of such Loan is fully recovered by such Lender or Lender Affiliate. Any subsequent third-party Assignee of any such Lenders or Lender Affiliates ground leasehold interest in the Premises will be permitted to consider its initial acquisition price (net of any debt secured by the ground leasehold interest in the Premises) as an equity contribution to be repaid from all available Net Revenue with, interest at a rate equal to an interest rate typical for comparable loans in this market until such time as such Assignees total acquisition price is fully recovered. Notwithstanding the above, if any Lender or Lender Affiliate or any third-party Assignee makes an equity contribution to the Project, then such equity contribution will be entitled to receive the same repayment priority from Net Revenue with interest at the same rate provided to those equity contributions described in Section1.7.1.2 above. ---|---|--- "
" | 2.19.13 | In connection with Lenders cure rights in this Section2.19, any Lender shall be allowed sufficient time necessary to complete any foreclosure action, including delays due to official restraint (including by law, process or injunction issued by a court), so long as such Lender is making payments required by this Agreement which can be reasonably determined prior to acquiring the Companys interest under this Agreement. Lender shall have the right to terminate foreclosure proceedings at any time if Company has cured all defaults under any Loan from Lender. ---|---|--- "
" | 2.19.15 | Any Lender shall have the right to participate in any settlement or adjustment of losses under insurance policies maintained by Company under this Agreement. Such Lender shall be named as a loss payee or additional insured, as applicable, in accordance with any Loan documents executed by Company, under the insurance policies required under this Agreement. In the event any proceeds of such insurance policies axe to be distributed, County and Lender agree to be bound by the provisions of the Loan documents executed by Company in favor of Lender and approved by CDR concerning distribution of insurance proceeds. ---|---|--- "
" | 2.19.17 | Whenever in this Agreement, Company shall have the right to request any information, statements, documents, or anything else whatsoever from County, Lender shall have the right to request the same from County, and such information, statements, documents and other requested material shall thereafter be given to Lender as if Lender had requested the same. In addition, County shall furnish Lender with copies of all notices of default and notices of intent served on Company under this Agreement concurrently with any delivery to Company. Such notices shall not be deemed delivered to Ground Lessee until they are delivered to Lender. ---|---|--- "
" | 2.19.20 | Lender shall have the right to participate in any arbitration proceedings in connection with any matter under this Agreement materially affecting Lenders interest as set forth in Section1.6 above. Notwithstanding the foregoing, Lender shall not participate in any arbitration related to a proposed annual operating budget, as set forth in Section1.6 above. ---|---|--- "
" | 2.20.1 | County may, in its unlimited discretion, at any time during the term of this Agreement or any extensions thereof, recover all or any part of the Premises for other Airport or public uses (except for commercial facilities purposes). Prior to the exercise of this power of recovery, County agrees to give Company one (1)years prior written notice of its intention to exercise this power. ---|---|--- "
" | 2.20.1.4 | In the event of any partial condemnation or recovery by any agency other than County, or in the event of any such condemnation or recovery, Company will be entitled to file an action to receive condemnation proceeds for recovery of its leasehold improvements and its leasehold interest. ---|---|--- "
" | bound by the provisions of the Loan documents executed by Company in favor of Lender concerning condemnation process and proceeds, including the right of Lender to recover from such condemnation proceeds an amount up to the then unpaid balance of its Loan, and (b)that Lender shall have the right to participate in any condemnation proceedings as set forth in this Section2.20 or as otherwise provided by law. ---|--- ARTICLE III"
"3.3 | TERMINATION RIGHTS FOR BREACH OF SECTIONS 3.1 AND 3.2 .ABOVE ---|--- In the event of breach of any of the nondiscrimination covenants described in Sections 3.1 and 3.2 above, County will have the right to terminate this Agreement and to reenter and repossess this land and the facilities thereon, and hold the same as if this Agreement had never been made or issued. This provision, however, does not become effective until the procedures of 49 CFR Part 21 are followed and completed including expiration of appeal rights. Promptly upon the receipt of any complaint or other notice alleging violation of the covenants in Sections 3.1 and 3.2 above, County will notify Company and will provide Company the opportunity to defend the same. Unless disapproved by the U.S. Department of Transportation, any such termination and reentry rights shall not be exercised by County so long as the current Lender elects to exercise its rights and remedies and acquire Companys interest under this Agreement. Such Lender will not be required to cure any breach by Company of any covenants in Section3.1 through 3.5 above, provided, however, such Lender shall be obligated to comply with such Sections upon any acquisition of Companys interest under this Agreement."
"3.4 | NONDISCRIMINATION IN FURNISHING ACCOMMODATIONS AND/OR SERVICES ---|--- Company will furnish its accommodations and/or services on a fair, equal and not unjustly discriminatory basis to all users thereof and it will charge fair, reasonable and not unjustly discriminatory prices for each unit or service; provided that Company may be allowed to make reasonable and non- discriminatory discounts, rebates or other similar type of price reductions to volume purchasers."
"3.5 | RIGHTS FOR NONCOMPLIANCE WITH SECTION 3.4 ---|--- Noncompliance with Section3.4 above will constitute a material breach of this Agreement and in the event of such noncompliance, County will have the right to terminate this Agreement and the estate hereby created without liability therefor or at the election of County or the United States of America either or both said Governments will have the right to judicially enforce the provision. Unless disapproved by the U.S. Department of Transportation, any such termination and reentry rights shall not be exercised by County so long as the current Lender elects to exercise its rights and remedies and acquire the Companys interest under this Agreement. Such Lender will not be required to cure any breach by Company of any covenants in Section3.1 through 3.5, provided, however, such Lender shall be obligated to comply with such Sections upon any acquisition of Companys interest under this Agreement."
" | 3.6.2 | Company agrees to include the language in Sections 3.1 through 3.6.1 above in any subsequent Sublease, professional services and/or construction agreements that it enters and cause those businesses to similarly include the statements in further agreements; provided however, that the foregoing is neither intended to nor shall require any Sublessee to include any such provisions in any contracts or agreements relative to the operations of its business. Such inclusion may be made by way of reference to such sections (as opposed to restatement of such sections in any such agreement). ---|---|--- "
"3.9 | APPENDIX 9, GENERAL CIVIL RIGHTS PROVISION ---|--- Company assures that it will comply with pertinent statutes, Executive Orders and such rules as are promulgated to assure that no person shall, on the grounds of race, creed, color, national origin, sex, age or handicap be excluded from participating in any activity conducted with or benefiting from Federal assistance. This provision obligates Company or its transferee for the period during which Federal assistance is extended to the Airport program, except where Federal assistance is to provide, or is in the form of, personal property or real property or interest therein or structures or improvements thereon. In these cases, this provision obligates the party or any transferee for the longer of the following periods: (a)the period during which the property is used by the sponsor or any transferee for a purpose for which Federal assistance is extended, or for another purpose involving the provision of similar services or benefits; or (b)the period during which the Airport sponsor or any transferee retains ownership or possession of the property. In the case of contractors, this provision binds the contractors from the bid solicitation period through the completion of the contract. Compliance with the Americans With Disabilities Act, 42 U.S.C. Section12101, et seq., as amended, by Company, shall be considered compliance with Companys duty to assure that no person shall, on the grounds of handicap be excluded from participating in any activity conducted with or benefiting from Federal assistance."
" | 3.10.3 | In the event Company employs fifty (50)or more employees on the Airport, it agrees to prepare and keep on file for review by the FAA Office of Civil Rights, an affirmative action plan developed in accordance with standards in 14 CFR, Subpart 152 409. Such program will be updated on an annual basis. Should Company employ less than fifty (50)employees on the Airport, it will annually send written correspondence confirming the exemption. ---|---|--- "
"3.18 | AIRPORT OBSTRUCTIONS ---|--- Company by accepting this Agreement expressly agrees for itself, its successors and assigns, that it will not erect nor permit the erection of any structure or object nor permit the growth of any tree on the land leased hereunder which will exceed such maximum height as may be stipulated by County. It is understood and agreed that applicable laws, codes, regulations or agreements concerning height restrictions will govern the maximum height to be stipulated by County. In the event the aforesaid covenants are breached, County reserves the right to enter upon the land leased hereunder and to remove the offending structure or object and cut down the offending tree all of which will be at the expense of Company and without liability to County."
"3.19 | AIRPORT HAZARDS ---|--- Company by accepting this Agreement agrees for itself, its successors and assigns, that it will not make use of the Premises in any manner which might interfere with the landing and taking off of aircraft from the Airport or otherwise constitute a hazard or obstruction. In the event the aforesaid covenant is breached, County reserves the right to enter upon the Premises hereby leased and cause the abatement of such interference at the expense of Company and without liability of any kind."
" | 3.22.3.1 | Should the Government determine that a site characterization, site assessment, and/or cleanup plan be prepared or that a cleanup should be undertaken because of any spills or discharges of hazardous materials at the Premises which occur during the term of this Agreement then Company shall prepare and submit required plans and financial assurances, and carry out the approved plans. Company will promptly provide all information requested by CDR to determine the applicability of the Environmental Laws to the Premises, or to respond to any governmental investigation or to respond to any claim of liability by third parties which is related to environmental contamination. ---|---|--- "
" | 3.22.4.1.2 | County may, at Countys election, subject to Lenders right to cure as provided in Section2.19 above, terminate this Agreement upon written notice to Company as provided in Section2.15 (entitled TERMINATION BY COUNTY) above. If this Agreement is terminated under this provision, Company waives all rights against County, including, but not limited to, breach of contract, costs of design, installation or construction of improvements and/or interruption of business. ---|---|--- "
"Should my portion of this Agreement be determined by any court of competent jurisdiction to be in violation of the SNPLMA it is expressly agreed that Company and County will negotiate in good faith to modify such terms or portions of this Agreement in order to comply with such Act. County arid Company agree that they will negotiate in good faith to resolve any issue regarding compliance with the Act for a period of one hundred eighty (180)days. If the parties cannot agree on a resolution during such period, either party may terminate this Agreement with ninety (90)days written notice to the other party. Notwithstanding the above to the contrary, no such termination shall be effective without the prior written consent of all current Lenders."
"4.11 | AGENT FOR SERVICE OF PROCESS ---|--- The parties hereto expressly understand and agree that if Company is not a resident of the State of Nevada, or is an association or partnership without a member or partner resident of said State, or is a foreign corporation, and then in any such event Company does designate its State of Nevada registered agent as its agent for the purpose of service of process in any court action between it and County arising out of or based upon this Agreement, and the service shall be made as provided by the laws of the State of Nevada by serving also Companys registered agent. The parties hereto expressly agree, covenant, and stipulate that Company shall also personally be served with such process out of this State by the registered mailing of such complaint and process to Company at the address set forth herein. Any such service out of this State shall constitute valid service upon Company as of the date of receipt thereof. The parties hereto further expressly agree that Company is amenable to and hereby agrees to the process so served, submits to the jurisdiction, waives any and all obligations and protests thereto, any laws to the contrary notwithstanding."
"a Nevada limited liability company, its manager | | | | |  | |  | |  | |  | By: /s/ Thomas A. Thomas  |  | |  | |  | |  | Name: Thomas A. Thomas |  | |  | |  | |  | Its: Manager | | | | |  | |  | |  | By: |  | MAJESTIC BELTWAY OFFICE BUILDINGS, LLC, a Delaware limited liability company, its manager | | | | | | ---|---|---|---|---|---|--- | | | |  | |  | By: |  | MAJESTIC REALTY CO., |  | |  | |  | a California corporation, |  | |  | |  | managers agent | | | |  | |  | |  | By:/s/ Edward P. Roski, Jr. |  | |  | |  | Name: |  | |  | |  | Its: | | | |  | |  | |  | By: |  | |  | |  | Name: |  | |  | |  | Its: "
"In addition, in March, 1989, the Board of County Commissioners approved a Noise Compatibility Program for McCarran International Airport. The program was developed under the Federal Aviation Administration (FAA) Federal Aviation Regulation (FAR) Part 150, Airport Noise Compatibility Planning guidelines. An FAR Part 150 Noise Study consists of two major products: 1) airport noise exposure maps for the most recent calendar year and for five years in the future, and 2) a noise compatibility program with recommendations to reduce the effects of airport noise on people living and working in the airport environs. Many of these recommendations have been implemented."
" | A. | The Bureau of Land Management enters into this cooperative agreement under the authority contained in: Sec. 307(b), Federal Land Policy and Management Act (FLPMA) of October21, 1976, P.L. 94-579 (90 STAT. 2763, 43 USC1733), and Section202(c)(9) of FLPMA as delegated in BLM Manual 1203 and Nevada Supplement. ---|---|--- "
" | 1. | Designate Mr. Thomas L. Nash, Senior Management Analyst, as the primary DOA contact and Mr. Jacob L. Snow, Principal Airport Planner, as the alternate DOA contact, authorized to act as a liaison to the Bureau. The primary and alternate contact may be re-authorized by DOA as needed. ---|---|--- * * *"
"(3) Youth activity facilities.Within 30 days after a request by Clark County, Nevada, the Secretary shall offer to Clark County, Nevada, the land depicted on the map entitled Vicinity Map Parcel 177-28-101-020 dated August14, 1996, in accordance with the Recreation and Public Purposes Act for the construction of youth activity facilities."
"(B) Pending exchanges.The provisions of this Act, except this subsection and subsections (a)and (b), shall not apply to any land exchange for which an initial agreement to initiate an exchange was signed by an authorized representative of the exchange proponent and an authorized officer of the Bureau of Land Management prior to February29, 1996."
(f) Investment of Special Account.All funds deposited as principal in the special account shall earn interest in the amount determined by the Secretary of the Treasury on the basis of the current average market yield on outstanding marketable obligations of the United States of comparable maturities. Such interest shall be added to the principal of the account and expended according to the provisions of subsection (e)(3).
"(2) Terms and conditions applicable to lands acquired.Land selected under this subsection by a grantee described in paragraph (1)shall be subject to the terms and conditions, uses, and acreage limitations of the lease or patent to which the lands transferred by the grantee were subject, including the reverted provisions, under the Recreation and Public Purposes Act."
[The method for calculation of the Buildings prorata share of Project Common Area Expenses shall be based on the number of acres of land assigned to the Building divided by the total number of acres in the Project. The calculation for the Premises prorata share of the Buildings Operating Expenses shall be based on the square feet of the Premises divided by the total square feet in the Building]
[The method for calculation of the prorata share of the Complex Common Area Expenses shall be based upon the acreage of the Building Area divided by the acreage of the Complex. The calculation for the Premises prorata share of the Buildings Operating Expenses shall be based on the square feet of the Premises divided by the total square feet in the Building]
"Tenant shall be allowed access to the 3rd Expansion Premises (without charge and without affecting the 3rd Expansion Premises Commencement Date) on August22, 2013 for the 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 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 3rd Expansion Premises, for any reason (including but not limited to the performance of Tenants Work), shall be subject to Tenants compliance with every provision of this Lease, except that Tenant shall not be liable for the payment of Rent until the 3rd 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/3rd Expansion Premises and performance of the Tenants Work. The rights granted to Tenant by this paragraph shall be restricted solely to the 3rd 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 3rd Expansion Premises or any work performed by Tenant prior to the 3rdExpansion Premises Commencement Date. Tenants activities within the Building/3rdExpansion Premises prior to the 3rd 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 Building/3rd Expansion Premises. Tenant assumes full responsibility for the any"
"work performed and for all damages or losses arising from Tenants entry on the Building/3rdExpansion Premises or performance of any work suffered by Tenant, Landlord, or either partys agents, contractors, employees, or invitees, whether such damage or loss occurs in the 3rd Expansion Premises or in any other part of the Building. Tenant shall defend, indemnify, protect, and hold harmless Landlord, its heirs, successors, assigns, and Landlords Affiliates, against and from all liabilities, obligations, losses, damages, penalties, claims, liens, costs, and expenses (including, without limitation, attorneys fees) paid, suffered, or incurred by Landlord as a result of any breach by Tenant of any covenant or condition of this paragraph, arising from Tenants early entry onto the Building/3rd Expansion Premises."
"|  |  | 1,356 |  |  | $ | 2,562.84 ($1.89 RSF) |  Concurrent with the mutual execution and delivery of this Amendment, Tenant shall provide Landlord with the 1st months Base Rent, which shall be applied at the beginning of the 1st month of the 3rd Expansion Premises Term."
"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 Expenses equal to: 0.178%."
[The method for calculation of the Buildings prorata share of Project Common Area Expenses shall be based on the number of acres of land assigned to the Building divided by the total number of acres in the Project. The calculation for the Premises prorata share of the Buildings Operating Expenses shall be based on the square feet of the Premises divided by the total square feet in the Building]
[The method for calculation of the prorata share of the Complex Common Area Expenses shall be based upon the acreage of the Building Area divided by the acreage of the Complex. The calculation for the Premises prorata share of the Buildings Operating Expenses shall be based on the square feet of the Premises divided by the total square feet in the Building]
" | 7. | Parking. ---|---|--- Commencing on the 3rd Expansion Premise Commencement Date (and continuing for the 3rd Expansion Premises Term) and subject to Exhibit F of the Lease, Tenant shall be allocated the following parking spaces for the 3rd Expansion Premises: 4 standard parking spaces (uncovered/unreserved) and 2 covered/reserved parking spaces, free of charge, for the duration of the 3rd Expansion Premises Term."
"11\. 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."
"a Nevada limited liability company |  | |  | |  | |  | By: |  | /s/ Rob Roy |  | |  | |  | |  | |  | Rob Roy, Manager |  | MANAGER: |  | |  | |  | |  | |  |"
"THIS FOURH LEASE AMENDMENT (Amendment) is entered into as of this 1ST day of September, 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 (collectively the Lease) pursuant to which Tenant leased from Landlord the Existing Premises consisting of 26,323 rentable square feet, designated as Suites 300, 160, 120, 260, 215 at 6795 Edmond Street, Las Vegas Nevada (Building)."
"entry on the Building/4th Expansion Premises or performance of any work suffered by Tenant, Landlord, or either partys agents, contractors, employees, or invitees, whether such damage or loss occurs in the 4th Expansion Premises or in any other part of the Building. Tenant shall defend, indemnify, protect, and hold harmless Landlord, its heirs, successors, assigns, and Landlords Affiliates, against and from all liabilities, obligations, losses, damages, penalties, claims, liens, costs, and expenses (including, without limitation, attorneys fees) paid, suffered, or incurred by Landlord as a result of any breach by Tenant of any covenant or condition of this paragraph, arising from Tenants early entry onto the Building/4th Expansion Premises."
"|  |  | 7,536 |  |  | $ | 15,674.88 ($2.08 RSF) |  Concurrent with the mutual execution and delivery of this Amendment, Tenant shall provide Landlord with the 1st months Base Rent, which shall be applied at the beginning of the 1st month of the 4th Expansion Premises Term."
"11\. 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."
"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 Expenses equal to: 0.77%."
"| | | | | | | | | | ---|---|---|---|---|---|---|---|---|---|--- |  | LANDLORD: |  | |  | TENANT: | | | | |  | BELTWAY BUSINESS PARK OFFICE NO. 2, LLC, |  | |  | |  | INNEVATION L.L.C., |  |  | |  | |  | a Nevada limited liability company |  | a Nevada limited liability company |  | |  | |  | |  | | | | | | |  | |  | |  | |  | By: |  | /s/ Thomas Morton |  | |  | |  | |  | Its: |  | President | | | | | |  | MANAGER: |  | |  | |  | |  | |  | Majestic Beltway Office Buildings, LLC, |  | |  | |  | |  | |  | a Delaware limited liability company |  | |  | |  | |  | | | | | | |  | Majestic Realty Co., a California corporation, Managers Agent |  | | | |  | |  | | | | | | By: |  | /s/ Edward P. Roski, Jr. |  | |  | |  | |  | | | | | | Its: |  |"
"Sublessee will use and occupy the Office Space solely for general office purposes in accordance with the use permitted under applicable zoning regulations and will comply with all present and future laws, ordinances, regulations, and orders of all agencies of the Federal and Local governments, and any other public authority having jurisdiction over the Office Space (""Laws""); provided, in no event shall Sublessee be required to make any structural alterations to the Office Space required by such Laws. Sublessee will not use nor occupy the Office Space for any unlawful purpose, nor will Sublessee use or occupy the Office Space for any activity which competes with the business of Sublessor. Sublessee further agrees that it shall use its best efforts to operate its business quietly and in such a manner as to not disrupt the business, operations, or day-to-day activities of Sublessor."
"Any such termination, refusal, cancellation, retention, entry, or ejection shall in no way prejudice any claim Sublessor may then or thereafter have against Sublessee for any charges due or other amounts, including collection and reasonable attorneys' fees incurred in connection with Sublessor's efforts to collect funds owed to it by Sublessee, or for damages for any breach of any of the terms and conditions hereof, and Sublessee does hereby agree to indemnify and hold Sublessor harmless for any loss, liability, damage, or deficiency (including reasonable attorneys' fees) arising out of, or in any way related to, any breach by Sublessee of any terms or conditions of this Sublease."
"(a) Accrued Rights. Employee shall be entitled to receive: (i) base salary and accrued and unused vacation through the date of termination of employment in accordance with the Companys normal payroll practices, (ii) any annual bonus or long-term incentive plan payment that has been earned by the Employee for a completed fiscal year (or with respect to a long-term incentive plan payment, a completed performance cycle) ending prior to the date of termination of employment but which remains unpaid as of such date payable in accordance with the applicable plan, and (iii) any vested benefits to which Employee is entitled under the employee benefit plans of the Company, payable pursuant to the terms and conditions of such benefit plans."
"(vi) reimbursement of administrative support service expenses for a period of six (6) months following the Retirement Date, up to an aggregate of $35,000 to facilitate knowledge transfer. Such reimbursement shall be subject to Employees submission of receipts to the Company documenting such expenses and such reimbursement shall be paid in a lump sum within thirty (30) days following the end of such six month period."
"If the Employee participated in direct deposit as of the Retirement Date, the Employees payments under Sections 2(a) and 2(b) will be direct deposited. If the Employee did not participate in direct deposit, the Employee will be issued a live check to the Employees last reported home address on file with the Company. The termination payments and benefits described in this Section 2(b) will be reduced to cover any outstanding financial obligations the Employee owes to the Company as of the Retirement Date, to the extent permissible under law, and without the incurrence of additional tax obligations under Section 409A of the Internal Revenue Code of 1986, as amended (the Code) and the regulations and guidance promulgated thereunder (collectively Section 409A). For the avoidance of doubt, all payments under Section 2(b) shall cease upon the Employees breach of the provisions of Sections 6, 7, 8, 9 or 10."
"5. General Release. For and in consideration of the payments and benefits provided by the Company under this Separation Agreement, the Employee, on the Employees own behalf and on behalf of the Employees heirs, estate and beneficiaries, does hereby release the Company, and in such capacities, any of its subsidiaries or affiliates, and each past or present officer, director, agent, employee, shareholder, attorney acting for or on behalf of the Company and insurer of any such entities, from any and all claims made, to be made, or which might have been made of whatever nature, whether known or unknown, from the beginning of time, including those that arose as a consequence of the Employees employment with the Company, or arising out of the severance of such employment relationship, or arising out of any act committed or omitted during or after the existence of such employment relationship, all up through and including the date on which this Release is executed, including, without limitation, any tort and/or contract claims, common law or statutory claims, claims under any local, state or federal wage and hour law, wage collection law or labor relations law, claims under any common law or other statute, claims of age, race, sex, sexual orientation, religious, disability, national origin, ancestry, citizenship, retaliation or any other claim of employment discrimination, including under Title VII of the Civil Rights Acts of 1964 and 1991, as amended (42 U.S.C.  2000e et seq.), Age Discrimination in Employment Act, as amended (29 U.S.C.  621, et seq.); the Americans with Disabilities Act (42 U.S.C.  12101 et seq.), the Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.), the Family and Medical Leave Act (29 U.S.C.  2601 et seq.), the Fair Labor Standards Act (29 U.S.C.  201 et seq.), the Executive Retirement Income Security Act of 1974, as amended (29 U.S.C.  1001 et seq.) and any other law (including any state or local law or ordinance) prohibiting employment discrimination or relating to employment, retaliation in employment, termination of employment, wages, benefits or otherwise. If any arbitrator or court rules that such waiver of rights to file, or have filed on Employees behalf, any administrative or judicial charges or complaints is ineffective, the Employee agrees not to seek or accept any money damages or any other relief upon the filing of any such administrative or judicial charges or complaints. Nothing in this Separation Agreement shall be construed to prohibit the Employee from filing a charge with or participating in any investigation or proceeding by a government agency charged with enforcement of any law. The Employee agrees to waive the Employees right to recover monetary damages in any charge, complaint, or lawsuit filed by the Employee or by anyone else on the Employees behalf, except that nothing in this Separation Agreement shall be construed to limit the Employees right to receive any monetary award from the Securities and Exchange Commission pursuant to Section 21F of the Securities Exchange Act of 1934. The Employee relinquishes any right to future employment with the Company and the Company shall have the right to refuse to re-employ the Employee, in each case without liability of the Employee or the Company. The Employee acknowledges and agrees that even though claims and facts in addition to those now known or believed by him to exist may subsequently be discovered, it is Employees intention to fully settle and release all claims he may have against the Company and the persons and entities described above, whether known, unknown or suspected."
"(d) The Employee acknowledges that the services to be rendered by the Employee are of a special, unique and extraordinary character and, in connection with such services, the Employee will have access to confidential information vital to the Business of the Company and the subsidiaries and affiliates of the Company. By reason of this, the Employee consents and agrees that if the Employee violates any of the provisions of Section 6 hereof, the Company and the subsidiaries and affiliates of the Company would sustain irreparable injury and that monetary damages will not provide adequate remedy to the Company and that the Company shall be entitled to have Section 6 specifically enforced by any court having equity jurisdiction. Nothing contained herein shall be construed as prohibiting the Company or any of the subsidiaries or affiliates of the Company from pursuing any other remedies available to it for such breach or threatened breach, including, without limitation, the recovery of damages from the Employee or cessation of payments and benefits hereunder without requirement for posting a bond. The Employee further acknowledges that: (i) the Employee will not at any time, directly or indirectly violate this Section 6; (ii) payment of the termination payments and benefits in Section 2(b) under this Separation Agreement shall not be made if the Employee violates this Section 6; (iii) the Company shall have no further obligation at any time to pay the termination payments and benefits in Section 2(b) under this Separation Agreement if the Employee violates this Section 6; and (iv) to the extent allowed by law, the Employee shall be required to return to the Company any termination payments and benefits the Company paid the Employee less two hundred fifty dollars ($250.00) if the Employee violates this Section 6."
"12. Severability. The provisions of this Separation Agreement are severable and the invalidity, illegality or unenforceability of any one or more provisions shall not affect the validity, legality or enforceability of any other provision. In the event that a court of competent jurisdiction shall determine that any provision of this Separation Agreement or the application thereof is unenforceable in whole or in part because of the duration or scope thereof, the parties hereto agree that said court in making such determination shall have the power to reduce the duration and scope of such provision to the extent necessary to make it enforceable, and that the Separation Agreement in its reduced form shall be valid and enforceable to the full extent permitted by law."
13. Waiver. The failure of a party to insist upon strict adherence to any term of this Separation Agreement on any occasion shall not be considered a waiver of such partys rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this Separation Agreement.
"(b) Any action to enforce any of the provisions of this Separation Agreement shall be brought in a court of the State of Ohio located in Summit County or in a Federal court located in Cleveland, Ohio. The parties consent to the jurisdiction of such courts and to the service of process in any manner provided by Ohio law. Each Party irrevocably waives any objection which it may now or hereafter have to the laying of the venue of any such suit, action, or proceeding brought in such court and any claim that such suit, action, or proceeding brought in such court has been brought in an inconvenient forum and agrees that service of process in accordance with the foregoing sentences shall be deemed in every respect effective and valid personal service of process upon such Party."
"(b) A termination of employment shall not be deemed to have occurred for purposes of this Separation Agreement providing for the payment of any amounts or benefits that are considered nonqualified deferred compensation under Section 409A upon or following a termination of employment, unless such termination is also a separation from service within the meaning of Section 409A and the payment thereof prior to a separation from service would violate Section 409A. For purposes of any such provision of this Separation Agreement relating to any such payments or benefits, references to a termination, termination of employment or like terms shall mean separation from service. If the Employee is deemed on the date of termination to be a specified employee within the meaning of that term under Section 409A(a)(2)(B), then, notwithstanding any other provision herein, with regard to any payment or the provision of any benefit that is considered nonqualified deferred compensation under Section 409A payable on account of a separation from service, such payment or benefit shall not be made or provided prior to the date which is the earlier of (A) the expiration of the six-month period measured from the date of such separation from service of the Employee, and (B) the date of the Employees death (the Delay Period). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 19(b) (whether they would have otherwise been payable in a single lump sum or in installments in the absence of such delay) shall be paid or reimbursed to the Employee in a lump sum on the first business day following the Delay Period, and any remaining payments and benefits due under this Separation Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein."
"5.Upon the Effective Date, (a) Section 5.7 of the Development Agreement shall be, and shall be deemed to be, deleted in its entirety, and any lien or security interest of Invetech against Argos and/or its assets shall be, and shall be deemed to be, irrevocably released, and Invetech agrees to take all action as Argos may reasonably request to effectuate such release (including, without limitation, the filing of a UCC-3 termination statement), and (b) Section 17.3(b) of the Development Agreement shall be, and shall be deemed to be, deleted in its entirety, and no termination fee shall be due or payable (or shall become due or payable) by Argos under the Development Agreement."
"7.In order to effectuate the terms of the foregoing paragraphs 3, 4, and 5 of this Agreement, upon the Effectice Date, each of Argos and Invetech shall be deemed to relinquish, to the full extent permitted by law, the provisions, rights, and benefits of Section 1542 of the California Civil Code which provides:"
"11.To the extent necessary to implement the terms of this Agreement, the Development Agreement is hereby amended, provided that except as expressly amended hereby and except for the satisfaction, waiver, and release provisions hereof and their effect thereon, the Development Agreement shall otherwise remain in full force and effect in accordance with its terms."
"In order to induce Argos Therapeutics, Inc., a Delaware corporation (the Company), to issue and sell to the undersigned (the Buyer), 1,142,857 shares of Common Stock of the Company (the Shares), an unsecured convertible promissory note in the original principal amount of $5,200,000 (the Note), and shares of Common Stock of the Company issuable upon conversion of the Note (the Conversion Shares, and, together with the Shares and the Note, the Securities), the Buyer hereby represents, warrants and agrees that:"
"(a)An Event of Default shall occur if (i) the Company fails to pay any and all unpaid principal, accrued and unpaid interest and all other amounts owing under the Note when due and payable pursuant to the terms of this Note, provided, however, that an Event of Default shall not be deemed to have occurred on account of a failure to pay due solely to an administrative or operational error of any depositary institution that is crediting by ACH or wiring such payment if the Company had the funds to make the payment when due and payment is received by the Holder within two (2) business days following the Companys knowledge of such failure to pay; (ii) the Company or any of its subsidiaries files any petition or action for relief under any bankruptcy, reorganization, insolvency or moratorium law or any other law for the relief of, or relating to, debtors, now or hereafter in effect, or makes any general assignment for the benefit of creditors; (iii) an involuntary petition is filed against the Company or any of its subsidiaries (unless such petition is dismissed or discharged within forty-five (45) days) under any bankruptcy statute or similar law now or hereafter in effect, or a custodian, receiver, trustee, assignee for the benefit of creditors (or other similar official) is appointed to take possession, custody or control of any property of the Company; (iv) a final judgment or judgments for the payment of money aggregating in excess of $1,000,000 that are not covered by insurance or an indemnity from a creditworthy party are rendered against the Company and/or any of its subsidiaries and which judgments are not, within thirty (30) days after the entry thereof, bonded, discharged or stayed pending appeal, or are not discharged within thirty (30) days after the expiration of such stay; (v) the Company fails to pay, when due, giving effect to any applicable grace period, any payment with respect to any indebtedness in excess of $1,000,000 due to any third party (other than, with respect to unsecured indebtedness only, payments contested by the Company in good faith by proper proceedings and with respect to which adequate reserves have been set aside for the payment thereof in accordance with GAAP) or is otherwise in breach or violation of any agreement for monies owed or owing in an amount in excess of $1,000,000, which breach or violation permits the other party thereto to declare a default or otherwise accelerate amounts due thereunder; (vi) there exists any circumstances or events that would, with or without the passage of time or the giving of notice, result in a default or event of default under any agreement binding the Company or any subsidiary, which default or event of default would or is likely to have a material adverse effect on the business, assets, operations or financial condition of the Company or any of its subsidiaries, individually or in the aggregate; or (vii) the Company breaches any other material term of this Note (unless, in the case of any curable material breach, such material breach is cured within thirty (30) days of the earlier of the date on which the Holder has given written notice of such breach to the Company and the date on which the Company has given written notice of such breach to the Holder). The Company shall provide prompt written notice to the Holder upon becoming aware that it is in material breach of this Note."
"(g)Voting Stock of a person means capital stock of such person of the class or classes pursuant to which the holders thereof have the general voting power to elect, or the general power to appoint, at least a majority of the board of directors, managers, trustees or other similar governing body of such person (irrespective of whether or not at the time capital stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency)."
"(h)Severability. In the event that any provision of this Note 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 this Note."
"Prospectus means (i)the prospectus included in any Registration Statement, as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement and by all other amendments and supplements to the prospectus, including post-effective amendments and all material incorporated by reference in such prospectus, and (ii)any free writing prospectus as defined in Rule405 under the 1933 Act."
"(d)Rule415; Cutback. If at any time the SEC takes the position that the offering of some or all of the Registrable Securities in the Registration Statement is not eligible to be made on a delayed or continuous basis under the provisions of Rule415 under the 1933 Act or requires the Investor to be named as an underwriter, the Company shall use its best efforts to persuade the SEC that the offering contemplated by the Registration Statement is a valid secondary offering and not an offering by or on behalf of the issuer as defined in Rule415 and that the Investor is not an underwriter. The Investor shall have the right to participate or have its counsel participate in any meetings or discussions with the SEC regarding the SECs position and to comment or have its counsel comment on any written submission made to the SEC with respect thereto. No such written submission shall be made to the SEC to which the Investors counsel reasonably objects. In the event that, despite the Companys best efforts and compliance with the terms of this Section2(d), the SEC refuses to alter its position, the Company shall (i)remove from the Registration Statement such portion of the Registrable Securities (the Cut Back Shares) and/or (ii)agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the SEC may require to assure the Companys compliance with the requirements of Rule415 (collectively, the SEC Restrictions); provided, however, that the Company shall not agree to name the Investor as an underwriter in such Registration Statement without the prior written consent of the Investor. Any cut-back imposed on the Investor pursuant to this Section 2(d) shall be applied first to any of the Registrable Securities of the Investor as the Investor shall designate, unless the SEC Restrictions otherwise require or provide or the Investor otherwise agrees. No liquidated damages shall accrue as to any Cut Back Shares until such date as the Company is able to effect the registration of such Cut Back Shares in accordance with any SEC Restrictions applicable to such Cut Back Shares (such date, the Restriction Termination Date). From and after the Restriction Termination Date applicable to any Cut Back Shares, all of the provisions of this Section2 (including the Companys obligations with respect to the filing of the Registration Statement and its obligations to use best efforts to have such Registration Statement declared effective within the time periods set forth herein and the liquidated damages provisions relating thereto) shall again be applicable to such Cut Back Shares; provided, however, that the Filing Deadline for the Registration Statement including such Cut Back Shares shall be ten (10) Business Days after such Restriction Termination Date."
"(d)furnish to the Investor and its legal counsel (i) immediately after the same is prepared and publicly distributed, filed with the SEC, or received by the Company (but not later than one (1)Business Day after the filing date, receipt date or sending date, as the case may be) one (1) copy of the Registration Statement and any amendment thereto, each preliminary prospectus and Prospectus and each amendment or supplement thereto, and each letter written by or on behalf of the Company to the SEC or the staff of the SEC, and each item of correspondence from the SEC or the staff of the SEC, in each case relating to such Registration Statement (other than any portion of any thereof which contains information for which the Company has sought confidential treatment) and (ii) such number of copies of a Prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investor that are covered by such Registration Statement;"
"(f)use best efforts to register or qualify (unless an exemption from the registration or qualification exists) or cooperate with the Investor and its counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such domestic jurisdictions as are reasonably requested by the Investor and do any and all other commercially reasonable acts or filings necessary or advisable to enable a distribution in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (i) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(f), (ii) subject itself to general taxation in any jurisdiction where it would not otherwise be so subject but for this Section 3(f), or (iii) file a general consent to service of process in any such jurisdiction;"
"The Company shall make available, during normal business hours, for inspection and review by the Investor and advisors and representatives of the Investor (who may or may not be affiliated with the Investor and who are reasonably acceptable to the Company), all SEC Filings and other filings with the SEC, and all other corporate documents and properties of the Company as may be reasonably necessary for the purpose of such review, for the sole purpose of enabling the Investor and such representatives, advisors and underwriters and their respective accountants and attorneys to conduct initial and ongoing due diligence with respect to the accuracy of the Registration Statement; provided that the Company shall have no obligation to provide such information or documentation (i) that the Company reasonably determines in good faith to be a trade secret or highly confidential information or (ii) to any such representative, advisor, underwriter, accountant or attorney unless and until such representative, advisor, underwriter, accountant or attorney has entered into a confidentiality agreement with the Company on terms satisfactory to the Company with respect to such information and documentation."
"(h)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 but shall be interpreted as if it were written so as to be enforceable to the maximum extent permitted by applicable law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the parties hereby waive any provision of law which renders any provisions hereof prohibited or unenforceable in any respect."
(j)Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter.
"In connection with the sale of our common stock or interests therein, the selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the common stock in the course of hedging the positions they assume. The selling stockholders may also sell shares of our common stock short and deliver these securities to close out their short positions, or loan or pledge the common stock to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction)."
"In order to comply with the securities laws of some states, if applicable, the common stock may be sold in these jurisdictions only through registered or licensed brokers or dealers. In addition, in some states the common stock may not be sold unless it has been registered or qualified for sale or an exemption from registration or qualification requirements is available and is complied with."
"4\. Non-Solicitation. During employment and for a period of two years following the Termination Date, Employee agrees, except as required by Employees duties for Choice and for the benefit of Choice or with the prior written consent of Choice, not to solicit or attempt to solicit, directly or indirectly, on Employees behalf or on behalf of any other person or entity, any person or entity who then is or who was as of the Termination Date, an employee, business partner or franchisee of Choice, or was actively solicited to have such a relationship with Choice within six (6)months prior to the Termination Date, to cease, curtail or refrain from entering into such a relationship with Choice. Nothing in the foregoing shall be construed as preventing Employee from otherwise lawfully soliciting business from any then current or prospective business partner or franchisee that is for a line of business other than any Competing Business."
"(a) If there occurs a Change in Control Termination, Employee shall receive as severance compensation a lump sum payment in an amount equal to 250% of Employees base salary at the rate in effect as of the Termination Date, plus 250% of the amount of Employees eligible full year bonus for that fiscal year based on a 100% attainment level for the company objectives and a 100% attainment level for the individual Management Bonus Objectives. Additionally, all unvested restricted stock, performance vested restricted stock units and stock option awards granted after or prior to the date of this Agreement and then held by Employee shall automatically become fully vested as of the date of the Change of Control Termination."
"(b) A breach of any of the restrictions in this Agreement cannot be adequately compensated by monetary damages and Choice shall be entitled to seek preliminary and permanent injunctive relief, without the necessity of proving actual damages, as well as any other appropriate equitable relief, which rights shall be cumulative and in addition to any other rights or remedies to which Choice may be entitled."
" |  |  | and any other federal, state or local laws or regulations prohibiting employment discrimination, harassment or retaliation. ---|---|---|--- Employee also releases any Claims for wrongful discharge or breach of contract, Claims for any personal injury or tort, Claims for any compensation, benefits, expenses, bonuses, or any other employee rights or benefits, Claims for employment or reinstatement, Claims for attorneys fees and costs, and all other Claims under any applicable statute, contract or other cause of action. This Agreement covers both Claims Employee knows about and those Employee may not know about. Employee assumes the risk of any and all unknown Claims which may exist at the time Employee signs this Agreement, and Employee agrees that this Agreement shall apply to any and all known and unknown Claims."
"4\. Lawsuits. To the fullest extent permitted by law, Employee promises never to file a lawsuit, claim, complaint, charge, demand, administrative proceeding, agency action or any other legal proceeding (collectively Lawsuit) asserting any Claims that are released in this Agreement. Employee agrees to withdraw with prejudice all Lawsuits, if any, Employee has filed against any Choice Releasee asserting any Claims with any agency or court. Except as provided below, Employee will not furnish information to or cooperate with any entity (other than Choice) in connection with any Lawsuit against any Choice Releasee, provided that following the second anniversary of the Termination Date, such prohibition shall not extend to any such actions taken by Employee on behalf of (A)Employees then current employer, (B)any entity with respect to which Employee is then a member of the board of directors or managers, as applicable, and (C)any non-publicly traded entity with respect to which Employee is a 5% or more equity owner (or an affiliate of any shch entities referenced in clauses (A), (B), or (C)). Employee agrees not to make any derogatory remarks or provide and disparaging information about any Choice Releasee; provided, that, this Agreement shall not prohibit Employee from testifying truthfully in connection with any legal proceeding or governmental or regulatory investigation. Choice agrees that it will not make any derogatory remarks about Employee; however, this provision shall only apply to any Choice officer or director acting in their official capacity."
"5\. No Admission. Employee agrees that this Release Agreement is not an admission of guilt or wrongdoing by the Choice Releasees, and Employee acknowledges that the Choice Releasees do not believe or admit that they have done anything wrong. Employee acknowledges that Employee has not suffered any wrongful treatment by any Choice Releasee relating to Employees employment."
"7\. Governing Law. This Agreement is governed by Maryland law, without regard to the principles of conflicts of laws. If a dispute arises under this Agreement, any Lawsuit must be brought exclusively in the courts for Montgomery County, Maryland. Employee and Choice voluntarily submit to the jurisdiction and venue of said court."
"This Termination and Release Agreement (the Agreement) is made and entered into as of July 12, 2017, by and among ICTV Brands Inc., a Nevada corporation (Parent), ICTV Holdings, Inc., a Nevada corporation (Purchaser), PhotoMedex, Inc., a Nevada corporation (PHMD), Radiancy, Inc., a Delaware corporation (Radiancy), PhotoTherapeutics Ltd., a private limited company limited by shares, incorporated under the laws of England and Wales (PHMD UK), and Radiancy (Israel) Limited, a private corporation incorporated under the laws of the State of Israel (Radiancy Israel and, together with PHMD, Radiancy, and PHMD UK, the Sellers and each, a Seller). Parent, Purchaser and the Sellers are each sometimes referred to herein as a Party and, collectively, as the Parties."
" | PARENT: ---|---  |   | ICTV BRANDS INC.  |  |   | By: | /s/ Richard Ransom  | Name: | Richard Ransom  | Title: | President  |  |   | PURCHASER:  |   | ICTV Holdings, INC.  |  |   | By: | /s/ Richard Ransom  | Name: | Richard Ransom  | Title: | President  |  |   | SELLERS:  |  |   | PhotoMedex, Inc.  |  |   | By: | /s/ Suneet Singal  | Name: | Suneet Singal  | Title: | Chief Executive Officer  |  |   | RADIANCY, Inc.  |  |   | By: | /s/ Suneet Singal  | Name: | Suneet Singal  | Title: | President  |  |   | PHOTOTHERAPEUTICS LTD.  |  |   | By: | /s/ Suneet Singal  | Name: | Suneet Singal  | Title: | Director  |  |   | RADIANCY (ISRAEL) LIMITED  |  |   | By: | /s/ Suneet Singal  | Name: | Suneet Singal  | Title: | Director "
"4\. Annual Bonus. Executive shall be eligible to participate in an annual bonus program generally available to executive officers of the Company for each fiscal year ending during the Term, as approved at the discretion of the Committee, with a target bonus equal to 110% of the Base Salary (such target bonus, as it may be increased from time to time, the Target Bonus), which percentage may be increased (but not decreased) at the discretion of the Committee. The annual bonus payable pursuant to this Section4 shall be paid to Executive at the same time as payment of annual bonuses is made to other similarly situated executives of the Company and in no event later than March15th of the year following the year for which such annual bonus is awarded, unless Executive elects to defer receipt of such annual bonus pursuant to an arrangement that meets the requirements of Section409A of the Internal Revenue Code of 1986, as amended (the Code)."
"(iii) Executives willful failure to (A)follow the lawful direction (consistent with Executives duties) of the Board or (B)comply in all material respects with the lawful policies, procedures, and rules of the Company, as the same have been communicated to Executive in writing, which failure, in the case of either clause(A) or (B), is not cured within ten days of receipt of written notice to Executive specifying the nature of such failure in reasonable detail; or"
"For purposes of this Section7(b), no act, or failure to act, on the part of Executive shall be considered willful unless it is done, or omitted to be done, by Executive in bad faith or without reasonable belief that Executives action or omission was in the best interests of the Company or its affiliates. Any act, or failure to act, based upon (A)authority given pursuant to a resolution duly adopted by the Board or, if the Company is not the ultimate parent corporation of the affiliates of the Company and is not publicly traded, the board of directors (or equivalent governing body) of the ultimate parent of the Company (the Applicable Board), (B)the instructions of a senior officer of the Company, or (C)the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by Executive in good faith and in the best interests of the Company or its affiliates. The cessation of employment of Executive during a Protected Period shall not be deemed to be with Cause unless and until there shall have"
"To invoke a termination with Good Reason, (A)Executive shall provide written notice to the Company of the existence of one or more of the conditions described in Sections7(c)(i) through 7(c)(vi) within 30days following Executives knowledge of the initial existence of such condition or conditions, specifying in reasonable detail the conditions constituting Good Reason, and (B)the Company shall have 30days following receipt of such written notice during which it may remedy the condition if such condition is reasonably subject to cure (the Company Cure Period). If the Company fails to remedy the condition constituting Good Reason during the Company Cure Period, Executive must terminate Executives employment, if at all, within 30days following such expiration of the Company Cure Period for such termination as a result of such condition to constitute a termination with Good Reason."
"(d) Any termination of Executives employment by the Company with Cause, or by Executive with Good Reason, shall be communicated by Notice of Termination to the other party hereto given in accordance with Section26\. For purposes of this Agreement, Notice of Termination means a written notice that (i)indicates the specific termination provision in this Agreement relied upon, (ii)to the extent applicable, sets forth in reasonable detail the facts and"
"(i) A lump sum cash payment consisting of: (A)Executives Base Salary through the Date of Termination to the extent not theretofore paid; and (B)any annual bonus earned by Executive for a prior award period, but not yet paid to Executive (other than any portion of such annual bonus subject to a prior irrevocable deferral election under any deferred compensation arrangement subject to Section409A of the Code, which portion shall instead be paid in accordance with the applicable deferral arrangement and any election thereunder) (the sum of the amounts described in clauses(A) and (B)shall be hereinafter referred to as the Accrued Obligations). The Accrued Obligations shall be paid to Executive within 15days following the Date of Termination."
"(ii) Subject to Section8(e), an amount in cash equal to the product of (A)1.5 multiplied by (B)Executives Base Salary as in effect immediately prior to such termination, which amount shall be paid to Executive in three equal installments on each of (1)the date that is 55days following the Date of Termination, (2)the date that is six months following the Date of Termination, and (3)the date that is 12months following the Date of Termination."
"(c) If Executives employment is terminated due to Executives death or Disability, then the Company shall pay or provide Executive (or, if applicable, Executives estate or beneficiaries) the Accrued Obligations, the Prorated Annual Bonus, and the Other Benefits, at the time or times set forth in Sections8(a)(i), 8(a)(iii), and 8(a)(vi), respectively, and shall have no other severance obligations under this Agreement."
"Companys ownership of the Work Product as requested by the Company. For purposes of this Agreement, Work Product means the data, materials, formulas, research, documentation, computer programs, communication systems, audio systems, system designs, inventions (whether or not patentable), and all works of authorship, including all worldwide rights therein under patent, copyright, trade secret, confidential information, moral rights, and other property rights, created or developed in whole or in part by Executive, while employed by the Company and its affiliates, within the scope of Executives employment or that otherwise relates in any manner to the business or projected business of the Company and its affiliates."
"(a) During the course of Executives employment with the Company, the Company and its affiliates may disclose to Executive Trade Secrets and Confidential Information (each, as defined below). The Trade Secrets and the Confidential Information of the Company and its affiliates are the sole and exclusive property of the Company and its affiliates (or a third party providing such information to the Company or its applicable affiliate). The disclosure of the Trade Secrets and the Confidential Information of the Company and its affiliates to Executive does not give Executive any license, interest, or rights of any kind in the Trade Secrets or Confidential Information."
"(b) Executive may use the Trade Secrets and Confidential Information solely for the benefit of the Company and its affiliates while Executive is an employee of the Company. Executive shall hold in confidence the Trade Secrets and Confidential Information of the Company. Except in the performance of services for the Company and its affiliates, Executive shall not reproduce, distribute, transmit, reverse engineer, decompile, disassemble, or transfer the Trade Secrets or the Confidential Information of the Company and its affiliates or any portion thereof."
(c) The obligations under this Agreement with regard to the Trade Secrets of the Company and its affiliates remain in effect as long as the information constitutes a trade secret under applicable law. The obligations with regard to the Confidential Information of the Company shall remain in effect while Executive is employed by the Company and its affiliates and thereafter.
"(e) As used herein, Trade Secrets means information of the Company and its affiliates, and their respective licensors, suppliers, clients, and customers, including, but not limited to, technical or non-technical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers, which is not commonly known or available to the public and which information (i)derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and (ii)is the subject of efforts that are reasonable under the circumstances to maintain its secrecy."
"(b) Subject to the provisions of Section14(c), all determinations required to be made under this Section14, including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment, and the assumptions to be utilized in arriving at such determination, shall be made by the Accounting Firm (as defined below). The Accounting Firm shall provide detailed supporting calculations both to the Company and Executive within 15business days following the receipt of notice from Executive that there has been a Payment or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity, or group effecting the change of control, Executive may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by the Company should have been made (the Underpayment), consistent with the calculations required to be made hereunder. In the event the Company exhausts its remedies pursuant to Section14(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive."
"21\. Legal Fees. Following a Change in Control, the Company shall pay as incurred (within 10days following the Companys receipt of an invoice from Executive), at any time from such Change in Control through Executives remaining lifetime (or, if longer, through the 20th anniversary of the Change in Control) to the fullest extent permitted by law, all legal fees and expenses that Executive may reasonably incur following such Change in Control as a result of any contest by the Company, any of its affiliates, Executive, or others of the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereof (including as a result of any contest by Executive about the entitlement to or amount of any payment pursuant to this Agreement), plus, in each case, interest on any delayed payment at the applicable federal rate provided for under Section7872(f)(2)(A) of the Code based on the rate in effect for the month in which such legal fees and expenses were incurred."
"22\. No Prior Agreements. Executive hereby represents and warrants to the Company that the execution of this Agreement by Executive and Executives employment by the Company and the performance of Executives duties hereunder shall not violate or be a breach of any agreement with a former employer, client, or any other person or entity."
"Notice shall be deemed given and effective three days after the deposit in the U.S. mail of a writing addressed as above and sent first class mail, certified, return receipt requested, or when actually received. Either party may change the address for notice by notifying the other party of such change in accordance with this Section26\."
"(a) Except as provided in Section29(c), any and all controversies, disputes, or claims arising under this Agreement shall be submitted for arbitration in accordance with the rules of the American Arbitration Association in effect as of the date hereof. Arbitration shall take place at an appointed time and place in New York, New York. Each party hereto shall select one arbitrator, and the two so designated shall select a third arbitrator. If either party shall fail to designate an arbitrator within 15calendar days after arbitration is requested, or if the two arbitrators shall fail to select a third arbitrator within 30calendar days after arbitration is requested, then such arbitrator shall be selected by the American Arbitration Association, or any successor thereto, upon application of either party. The arbitration shall be instead of any civil litigation; this means that Executive and the Company are each waiving any rights to a jury trial."
"(b) Subject to Section29(c), arbitration under this Section29 shall be the sole and exclusive forum and remedy for resolution of controversies, disputes, and claims of any kind or nature, whether or not presently known or anticipated, including any purported controversies, disputes, or claims not arising under contract, between the parties to this Agreement, and no recourse shall be had to any other judicial or other forum for any such resolution. The award of the arbitrators may grant any relief that a court of general jurisdiction has authority to grant, including, without limitation, an award of damages and/or injunctive relief. Subject to Section21 (which shall apply following Change in Control), all costs and expenses of arbitration (including fees and disbursements of counsel and experts) shall be borne by the respective party incurring such costs and expenses, except that each party shall bear one-half of the aggregate fees and disbursements of the arbitrators and costs of the American Arbitration Association. Any award of the majority of arbitrators shall be binding and not subject to judicial appeal or review of the award, including, without limitation, any proceedings under Sections9 and 10 of the Federal Arbitration Act, 9 U.S.C. 1 et seq., or any comparable provision for review of an arbitral award under any comparable statute or law of any jurisdiction, all rights to which are hereby expressly waived by the parties. Executive and the Company knowingly and voluntarily agree to this arbitration provision. Subject to the preceding sentence, the United States District Court for the Southern District of New York and the courts of the State of New York shall have sole and exclusive jurisdiction solely for the purpose of entering judgment upon any award by the majority of arbitrators."
"This SEPARATION AND RELEASE AGREEMENT (this Agreement) is made and entered into as of the [Date], by and between Bankrate, Inc., a Delaware corporation (the Company) and Kenneth S. Esterow (Executive). All capitalized terms used, but not defined, herein shall have the meanings ascribed to them in the Amended and Restated Executive Employment Agreement, dated as of July2, 2017 (the Employment Agreement), by and between the Company and Executive."
"(e) Executive affirms that Executive does not have any current charge, claim, or lawsuit against one or more of the Released Persons pending before any local, state, or federal agency or court regarding Executives employment and the termination of Executives employment. Executive understands that nothing in this Agreement prevents Executive from filing a charge or complaint or from participating in an investigation or proceeding conducted by the Equal Employment Opportunity Commission or any other federal, state, or local agency charged with the enforcement of any employment or labor laws, although by signing this Agreement, Executive is giving up any right to monetary recovery that is based on any of the claims Executive has released. Executive also understands that if Executive files such a charge or complaint, Executive has, as part of this Agreement, waived Executives right to receive any remuneration beyond what Executive receives pursuant to the Employment Agreement."
"3\. Cooperation. Executive agrees to cooperate with and, subject to Executives other employment obligations, to make himself reasonably available to the Company, as the Company may reasonably request, to assist it in any matter, including giving truthful testimony in any potential or filed litigation, arbitration, mediation, or similar proceeding involving the Company, over which Executive has knowledge or information. The Company will reimburse Executive for any and all reasonable expenses incurred in connection with Executives compliance with this Section3\."
"8\. Severability. Any term or provision of this Agreement that is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement in any other jurisdiction; provided, however, that, notwithstanding anything in this Agreement to the contrary, any invalidation of Executives release given in Section1 of this Agreement shall release the Company from its other obligations under the Employment Agreement that are subject to Executives execution (and non-revocation) of this Agreement. If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only as broad as is enforceable."
"(a) Upon the Effective Date: (i) the Warner Releasors, (as defined below), shall, and shall be deemed to, fully, finally, unconditionally, irrevocably and forever remise, release and discharge and shall forever be enjoined from prosecuting directly, derivatively, representatively or in any other capacity, each and every Warner Released Claim (as defined below) against any of the Icagen Releasors (as defined below); and (ii) the Icagen Releasors (as defined below) shall, and shall be deemed to, fully, finally, unconditionally, irrevocably and forever remise, release and discharge and shall forever be enjoined from prosecuting directly, derivatively, representatively or in any other capacity, each and every Icagen Released Claim (as defined below) against any of the Warner Releasors (as defined below)."
"(c)Warner Released Claims means any and all claims, debts, demands, rights, contracts, obligations, promises, agreements, disputes, disagreements, actions, or causes of action, suits, demands, losses (including lost opportunities) , expenses or liabilities whatsoever (including, but not limited to, any claims for damages of any nature including but not limited to compensatory damages, punitive damages, exemplary damages and consequential damages, costs, interest, attorneys fees, expert or consulting fees, equitable or injunctive relief and any other costs, expenses or liability whatsoever), whether based on federal, state, local, statutory or common law or any other law, domestic or foreign, or any other rule or regulation, including but not limited to claims arising under the National Labor Relations Act, Title VII of the Civil Rights Act (Title VII), the Americans with Disabilities Act (ADA), Genetic Information Nondiscrimination Act of 2008 (GINA), Uniformed Services Employment and Reemployment Rights Act (USERRA), the Employee Retirement Income Security Act (ERISA) (excluding any claims for accrued, vested benefits), and the New Mexico Human Rights Act (the NMHRA), whether fixed or contingent, accrued or unaccrued, liquidated or unliquidated, at law or in equity, matured or unmatured, whether class, derivative, or individual in nature, including both known claims and Unknown Claims (defined below), from the beginning of time to the Effective Date, that the Warner Releasors have, could have, or could assert in any forum against any of the Icagen Releasors, with the sole exception of any claim arising under the Age Discrimination in Employment Act of 1967 (the ADEA Claims). This release does not operate to terminate Warners ownership of any Icagen securities."
"(h)Unknown Claims means any and all claims, rights or causes of action or liabilities whatsoever, whether based on federal, state, local, statutory or common law or any other law, rule or regulation, domestic or foreign, which any of the Releasing Parties does not know or suspect to exist in his, her or its favor as of the Effective Date, which, if known by him, her or it, could have been asserted in any forum by any of the Releasing Parties against any of the other Releasing Parties even if unknown at the time of execution of this Agreement. With respect to any and all Released Claims, the Parties stipulate and agree that upon the Effective Date, the Releasing Parties shall expressly waive any and all provisions, rights and benefits conferred by Cal. Civ. Code  1542 and any law of any state or territory of the United States, or principle of common law, which is similar, comparable, or equivalent to Cal. Civ. Code  1542\. Cal. Civ. Code  1542 provides"
"The Releasing Parties or any of them may hereafter discover facts in addition to or different from those which he, she or it now knows or believes to be true with respect to the subject matter of the Released Claims, but the Releasing Parties shall expressly fully, finally and forever settle and release any and all Released Claims, known or unknown, suspected or unsuspected, contingent or non-contingent, whether concealed or hidden, which now exist, or heretofore have existed, upon any theory of law or equity now existing or coming into existence in the future, including but not limited to, conduct which is negligent, intentional, with or without malice, or a breach of any duty, law or rule, without regard to the subsequent discovery or existence of such different or additional facts. The Releasing Parties acknowledge that the inclusion of Unknown Claims in the definition of Released Claims was separately bargained for and was a key element of the settlement of the Action."
"7.Warranties. Each of the Parties represents and warrants that it has full power and authority to enter into and perform this Agreement. Each of the Parties further represents and warrants that it has not heretofore assigned, transferred, encumbered or otherwise conveyed, or purported to assign, transfer, encumber or otherwise convey, in whole or in part, to any person or entity, any Released Claims released hereunder."
"(a)This Agreement shall be construed in accordance with and governed by the laws of the State of North Carolina, United States of America, without regard to conflict of laws provisions. The Parties agree that the sole and exclusive venue for disputes arising out of, related to and/or connected with this Agreement shall be the state courts situated in the State of North Carolina."
"|  |   |  |  By: | /s/ Richard Cunningham |  | /s/Benjamin Warner  | RICHARD CUNNINGHAM |  |  Title: | CEO |  |   |  |  |  Agreed as to form: |  |   |  |  |  By: | /s/ Michael Blanchard |  |  Title: | Counsel for Icagen, Inc. f/k/a |  |   | Caldera Pharmaceuticals, Inc. |  |  "
"(b)Board Membership. Executive will be appointed as a director on the Companys Board of Directors effective on the Employment Start Date, and will be nominated for re-election at the 2017 annual meeting of shareholders. At each annual meeting of the Companys stockholders thereafter during the Employment Term, the Company will nominate Executive to serve as a member of the Board. Executives service as a member of the Board will be subject to any required stockholder approval. While a member of the Board, Executive will be permitted to attend all meetings of the Board and executive sessions thereof, on substantially the same basis as other members of the Board, except for meetings of independent directors and except as prohibited by applicable law, listing standards or the company's corporate governance guidelines. Notwithstanding the preceding sentence, Executive will not have the right to attend any portion of a meeting or executive session where the item of discussion relates to Executives employment, including (but not limited to) his compensation, performance and/or service on the Board."
"(d)Sign-On Equity Award. Subject to the terms of the Companys equity plans, including the underlying 2013 Plan, and the Committees terms and conditions for the applicable type of award as set forth in the award agreement, including vesting criteria such as continued service, but consistent with the balance of this Section 3(d), within two (2) business days of the Employment Start Date, the Company will grant to Executive an equity award with a value of $5,000,000, with 50% in performance stock units (PSUs) and 50% in restricted stock units (RSUs). The number of shares underlying the total award will be based on the ASP determined in accordance with the terms of Section 3(c) above. The PSUs will vest on the 3-year anniversary of the grant, and the RSUs will vest in four equal, annual installments on the"
"anniversary of the grant. The number of shares earned under the PSU award will not be determined until the end of the 3-year period, and the amount to be paid will be calculated as described above in Section 3(c). The RSUs and the PSUs granted under this Section 3(d) in connection with Executives Employment Start Date will become fully vested in the case of death or LTD Disability, however, the PSUs will not be paid out until after the end of the 3-year period. For purposes of Section 7(a)(v), a Payout Factor of 1.0 shall be considered target for the PSUs."
"(iii) In the event that Executives employment is terminated on or before October 31, 2019, under circumstances making him eligible for severance benefits under the Section 16 Severance Plan, then as additional severance benefits, conditioned upon Executives execution of a release of claims as otherwise required under the Section 16 Severance Plan, which shall be substantially in the form of the Release described in Section 8(a) of this Agreement, and the other terms and conditions applicable to Executives receipt of severance benefits under such Plan, Executive will be eligible for reimbursement by the Company for any loss incurred in the sale of Executives primary North Carolina residence following the Termination Date in the amount equal to the greater of (x) the fair market value of such residence as determined by the Companys third party relocation service, or (y) the purchase price of such residence and the"
"5.Expenses. The Company will reimburse Executive for reasonable travel, entertainment, and other expenses incurred by Executive in the furtherance of the performance of Executives duties hereunder, in accordance with the Companys expense reimbursement policy for senior executives as in effect from time to time. To the extent that any such reimbursement does not qualify for exclusion from Federal income taxation, the Company will make the reimbursement only if the corresponding expense is incurred during the term of this Agreement and the reimbursement is made on or before the last day of the calendar year following the calendar year in which the expense is incurred, the amount of expenses eligible for such reimbursement during a calendar year will not affect the amount of expenses eligible for such reimbursement in another calendar year, and the right to such reimbursement is not subject to liquidation or exchange for another benefit from the Company."
"(a)Change in Control Benefits. If Executives Termination of Employment is initiated by the Company without Cause or by Executive for Good Reason during the Employment Term, and if, but only if, the Termination of Employment during the Employment Term is In Connection with a Change in Control (but not by the Company in connection with the death or LTD Disability of Executive or in connection with a sale of assets constituting a Change in Control in which the Successor employs Executive and assumes the Companys obligations under this Agreement), then, subject to Sections 7(b) and 8, Executive will receive:"
"(b)Section 409A Payment Provisions; Possible Payment Delay in Event Executive is a Specified Employee. The parties intend that no payments or benefits hereunder shall constitute non-qualified deferred compensation within the meaning of Section 409A 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. In addition, the parties intend that any payment qualifying for a Section 409A exemption be treated as such to the maximum extent permitted by law. For purposes of Section 409A, each installment payment of severance benefits and any other payment made as part of a series of installment payments hereunder shall be considered a separate and distinct payment; all payments specified in Sections 7(a) above made through the date that is 2- months following the later of the last day of the calendar year containing the Termination Date and the last day of the Companys fiscal year containing the Termination Date (the Short-Term Deferral Deadline) are intended to be exempt from Section 409A under the short-term deferral rule; all such payments made after the Short Term Deferral Deadline are intended to be exempt from Section 409A under the severance pay exemption specified in Treasury Regulation 1.409A- 1(b)(9)(iii) (the Severance Pay Exemption); in the event that Executive is a Specified Employee on the Termination Date, all such payments made after the Short Term Deferral Deadline, that exceed the limits of the Severance Pay Exemption, and that would be paid earlier than the Six-Month Delay Payment Date will be delayed until the Six-Month Delay Payment Date to the extent required to satisfy Subsection 409A(a)(2)(B)(i) of the Code; on that date, the Company will pay Executive a lump sum consisting of all payments that would have been paid to Executive prior to the Six-Month Delay Payment Date had Executive not been a Specified Employee, increased for interest at the short-term Federal rate in effect on the Termination Date for the period beginning on the date each component of such lump sum would have been paid had Executive not been a Specified Employee and ending on the Six- Month Delay Payment Date; however, if Executive dies after the Termination Date but before such lump sum payment is made, it will be paid to Executives estate without regard to any six-month delay that otherwise applies to Specified Employees."
"(f)Sole Right to Severance In Connection with a Change in Control. This Agreement is intended to represent Executives sole entitlement to severance payments and benefits in connection with a termination of Executives employment In Connection with a Change in Control, except for such payments and benefits to which Executive would be entitled as an employee of the Company in the absence of this Agreement; provided, however, that the severance benefits under this Agreement are in lieu of any other severance benefits that Executive would have been eligible to receive under the Companys Section 16 Severance Plan. For clarity, if the eligibility requirements are otherwise met, Executive may only be entitled to severance benefits under this Agreement or the Section 16 Severance Plan, but not both."
"(b)Benefit Plans. For purposes of this Agreement, Benefit Plans means plans, policies, or arrangements that the Company sponsors (or participates in) and that immediately prior to the Termination Date provide Executive, Executives spouse, and/or Executives eligible dependents with medical, dental, or vision benefits. The term Benefit Plans does not include plans, policies, or arrangements providing for any other type of benefit (including, but not by way of limitation, financial counseling, disability, life insurance, or retirement benefits)."
"(vi)The sale, transfer or other disposition of a substantial portion of the stock or assets of the Company, or of a Business Unit or a similar transaction as the Board, in each case, in its sole discretion, may determine to be a Change in Control; provided, however, that the term Change in Control shall not include (i) a transaction the sole purpose of which is to change the state of the Companys incorporation; or (ii) the initial public offering of the stock of a Business Unit of the Company, and any subsequent sell down of the stock of the Business Unit by the Company."
"Executive incurs a Termination of Employment during the Employment Term either within (i) the period of time between the commencement of a tender offer or the Company and another party entering into a written agreement that contemplates a transaction the consummation of either of which would result in a Change in Control as defined in Subsections (i), (ii), (iv), (v) or (vi) of such definition and the occurrence of either the resulting Change in Control or the termination or expiration of the tender offer or the written agreement without the occurrence of a Change in Control, or (ii) twenty four (24) months following a Change in Control (including without limitation a resulting Change in Control as described in the preceding clause (i))."
"(a)Executive agrees not to disclose any information regarding the underlying facts leading up to or the existence or substance of this Agreement and General Release, except to Executives spouse, tax or financial advisor, and/or an attorney with whom Executive chooses to consult regarding Executives consideration of this Agreement and General Release."
"11.Arbitration. The Parties agree that any and all disputes arising out of, or relating to, the terms of this Release, their interpretation, and any of the matters herein released, shall be subject to binding arbitration as described in Section 16 of the Change in Control Agreement (but as adjusted to cover disputes under this Release)."
"13.Nonadmission of Wrongdoing. The Parties agree that neither this Agreement and General Release nor the furnishing of the consideration for this Agreement and General Release shall be deemed or construed at any time for any purpose as an admission by Releasees of wrongdoing or evidence of any liability or unlawful conduct of any kind. Executive agrees to not seek reemployment with Cree, because of, among other things, irreconcilable differences with Cree, unless expressly requested to do so in writing by a Company officer."
"These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling."
"7.Integration Clause. This Agreement contains the entire agreement of the Parties and supersedes any and all prior, written or oral, agreements among them concerning the subject matter of this Agreement. There are no representations, agreements, arrangements or understandings, oral or written, among the Parties, relating to the subject matter of this Agreement that is not fully expressed herein."
"This Master Lease Agreement (this Agreement), dated as of June30, 2017, is made between Wells Fargo Equipment Finance,Inc., a Minnesota corporation (together with its successors and assigns, the Lessor), and Plug Power Inc., a corporation incorporated under the laws of Delaware (the Lessee). Lessor and Lessee are referred to in this Agreement individually as a Party and, collectively, as the Parties. Capitalized terms used but not defined herein shall have the meaning set forth for such terms in the Master Purchase Agreement (as defined below)."
"2. TERM AND RENT. The initial term (Initial Term) for each Lease shall be for the initial period specified in such Lease, and Lessee shall pay Lessor the Rent specified in such Lease throughout the Initial Term for the use of the Equipment. 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 Initial Renewal Term (as defined in Section14) and any Subsequent 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 specified in such Lease (or such other account as Lessor shall notify to Lessee upon 10 business days prior written notice), and Lessee shall permit Lessor to debit the account of Lessee at M&T Bank (Account Name: Plug Power Inc., Account Number:"
"4. DISCLAIMER OF WARRANTIES. Lessee acknowledges that Lessor is not the manufacturer of the Equipment, nor manufacturers agent, and Lessee agrees that as between Lessor and Lessee, the Equipment leased hereunder is of a design, size, fitness and capacity selected by Lessee and that Lessee is satisfied that the same is suitable and fit for its intended purpose. LESSEE FURTHER ACKNOWLEDGES THAT THE EQUIPMENT IS LEASED UNDER THIS AGREEMENT AND EACH LEASE ON AN AS-IS, WHERE IS BASIS AND THAT LESSOR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE EQUIPMENT,ITS MERCHANTABILITY, OR ITS FITNESS FOR A PARTICULAR PURPOSE. LESSOR SHALL NOT BE LIABLE TO LESSEE OR ANY OTHER PERSON FOR DIRECT, INDIRECT, SPECIAL,INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM LESSEES USE OF THE EQUIPMENT, ANY DEFECT OR MALFUNCTION OF THE EQUIPMENT, OR FOR DAMAGES BASED ON STRICT OR ABSOLUTE TORT LIABILITY OR LESSORS NEGLIGENCE. No defect or unfitness of the Equipment shall relieve Lessee of the obligation to timely pay Rent, or to perform any other obligation under this Agreement."
"(b) If Lessee fails to obtain insurance or provide evidence thereof to Lessor, Lessee agrees that Lessor may, but shall not be obligated to, obtain such insurance on Lessees behalf and charge Lessee for all costs and expenses associated therewith. Without limiting the forgoing, Lessee specifically agrees that if Lessor obtains insurance on Lessees behalf, Lessee will be required to pay a monthly insurance charge. The insurance charge will include reimbursement for premiums advanced to the insurer, finance charges (which will typically be at a rate higher than the rate used to determine the Rent), billing and tracking fees, administrative expenses and other related fees. Lessor shall receive a portion of the insurance charges, which may include a profit from such finance charges, billing, tracking, administrative and other charges."
"15. LEASE RENEWAL. (a)If Lessee elects, or is deemed to elect, the Subsequent Renewal Option for a Lease, then such Lease (with respect to all, but not less than all, of the Equipment under such Lease) shall be extended for such term as Lessor and Lessee mutually agree, but not less than twelve (12) months (each such term, a Subsequent Renewal Term), commencing on the day following the last day of the Initial Renewal Term or the prior Subsequent Renewal Term, as applicable. Rent payable during any Subsequent Renewal Term shall be the Fair Market Rental Value for the Equipment as determined below. The commencement of any Renewal Term is conditioned upon the counterparty to any Project Document (including the Power Purchase Agreement) renewing the terms of such Project Document with respect to the relevant Equipment, upon the CAAA (as defined in the Master Purchase Agreement) remaining in full force and effect, and otherwise upon mutually agreeable Lease terms between Lessor and Lessee."
"with the fair market rental value as determined by such appraiser to be binding and conclusive on the Parties as the Fair Market Rental Value for purposes of such Lease, and the fees and expenses of the appraiser shall be borne by Lessee. The Rent payable during any Subsequent Renewal Term shall be equal to the average of the Rent payable during the twelve (12) month period immediately preceding such Subsequent Renewal Term until the Fair Market Rental Value is determined, at which time the prior Rent payments shall be adjusted to take into account such determination."
"(b) If Lessee elects to exercise the Purchase Option, then on the Lessee Purchase Date, Lessee shall pay to Lessor (i)the Lessee Purchase Option Amount and all sales, use, value added and other taxes required to be indemnified by the Lessee pursuant to Section10 plus (ii)any unpaid Rent and any other outstanding amount due under this Agreement and the applicable Lease on or before such date."
"21. FURTHER ASSURANCES. Lessee agrees (a)at the written request of Lessor, to execute and deliver to Lessor any Uniform Commercial Code financing statements, fixture filings or other instruments Lessor reasonably deems necessary for expedient filing, recording or perfecting the interest and title of Lessor in this Agreement, any Lease and the Equipment, (b)that a copy of this Agreement and any Lease may be filed in accordance with clause (a), provided the economic terms not necessary for filing shall have been deleted therefrom, (c)that all reasonable and documented costs incurred in connection with any actions taken in accordance with clause (a), including, without limitation, costs for filing fees and taxes, shall be paid by Lessee, and (d)to promptly, at Lessees expense, deliver such other reasonable documents and assurances, and take such further action as Lessor may reasonably request in writing, in order to effectively carry out the intent and purpose of this Agreement and each Lease."
"(d) Lessee shall not allow a Blocked Person (as defined below) or Blocked Persons to have a fifty percent (50%) or greater ownership interest in or control of Lessee. Blocked Person means any person or entity that is now or at any time (i)on a list of Specially Designated Nationals issued by the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury or any sectoral sanctions identification list; or (ii)whose property or interests in property are blocked by OFAC or who is subject to sanctions imposed by law, including any executive order or any branch or department of the United States government; or (c)otherwise designated by the United States or any regulator having jurisdiction or regulatory oversight over Lessor, to be a person to whom Lessor is not permitted to extend credit or with regard to whom a debtor relationship may result in penalties against Lessor or limitations on a secured partys ability to enforce a transaction."
"27. NOTICES. Any notice required or given hereunder shall be deemed properly given when provided in writing (a)three (3)business days after mailed first class, overnight, or certified mail, return receipt requested, postage prepaid, addressed to the designated recipient at its address set forth below or such other address as such Party may advise by notice given in accordance with this provision or (b)upon receipt by the Party to whom addressed in writing by personal delivery, commercial courier service, fax or other means which provides a permanent record of the delivery of such notice. Notices shall be delivered to the Parties at the following addresses:"
"30. USA PATRIOT ACT NOTICE. To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify and record information that identifies each lessee that opens an account. What this means: when Lessee opens an account, Lessor will ask for the business name, business address, taxpayer identifying number and other information that will allow Lessor to identify Lessee, such as organizational documents. For some businesses and organizations, Lessor may also need to ask for identifying information and documentation relating to certain individuals associated with the business or organization."
"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 UCC."
"(f) Change in Control Termination means (i) a Participants dismissal or discharge by the Company resulting in a Separation from Service, for a reason other than death, disability, or Cause, or (ii) a Participants Resignation for Good Reason, in either case which occurs in connection with or within twelve (12) months following the effective date of a Change in Control, provided that any such termination is a Separation from Service."
"(iii) induces any of the Companys then current clients, customers, suppliers, vendors, distributors, licensors, licensees, or other third party to terminate their existing business relationship with the Company or interferes in any other manner with any existing business relationship between the Company and any then current client, customer, supplier, vendor, distributor, licensor, licensee, or other third party."
"(a) Applications for Benefits and Inquiries. Any application for benefits, inquiries about the Plan or inquiries about present or future rights under the Plan must be submitted to the Plan Administrator in writing by an applicant (or his or her authorized representative). The Plan Administrator is set forth in Section 11(d)."
(a) Employer and Plan Identification Numbers. The Employer Identification Number assigned to the Company (which is the Plan Sponsor as that term is used in ERISA) by the Internal Revenue Service is 26-2087865. The Plan Number assigned to the Plan by the Plan Sponsor pursuant to the instructions of the Internal Revenue Service is 502.
"Notwithstanding the foregoing, I understand that the following rights or claims are not included in my Release (the Excluded Claims): (a) any rights or claims for indemnification I may have pursuant to any fully executed indemnification agreement with the Company or its affiliate to which I am a party; the charter, bylaws, or operating agreements of the Company or its affiliate; or under applicable law; (b) any rights or claims which cannot be waived as a matter of"
"I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under the ADEA, and that the consideration given under the Plan for the waiver and release in the preceding paragraphs hereof is in addition to anything of value to which I was already entitled. I further acknowledge that I have been advised by this writing, as required by the ADEA, that: (a) my waiver and release do not apply to any rights or claims that may arise after the date I sign this Release; (b) I should consult with an attorney prior to signing this Release (although I may choose voluntarily not to do so); (c) I have 45 days to consider this Release (although I may choose voluntarily to sign this Release earlier); (d) I have seven days following the date I sign this Release to revoke the Release by providing written notice of my revocation to an office of the Company; (e) this Release will not be effective until the date upon which the revocation period has expired, which will be the eighth day after I sign this Release; and (f) I have received with this Release a written disclosure under 29 U.S. Code Section 626(f)(1)(H) that includes certain information relating to the Companys group termination."
"3.1 Base Salary. The OptiNose Companies will pay Manager a base salary (Base Salary) at the rate of $400,000 per year, paid in accordance with the usual payroll practices of the Parent Company. Managers Base Salary may be reviewed annually by the Board (or a committee thereof) for potential increases each successive year of the Term or any renewal period, such increases to be in the sole discretion of the Board."
"3.4.2 Vesting. One-eighth of the Option Grant shall vest on the date hereof, and the remaining portions of the Option Grant will vest and become exercisable in two equal portions. The first portion (time vesting) will vest in four equal consecutive installments, with one-fourth vesting on each of the first four anniversaries of the date of grant, provided that Manager is continuously employed by the OptiNose Companies on each such vesting date. The second portion (performance vesting) will vest on achievement of performance criteria established by the Board and as set forth in the Grant Agreement (as defined below), provided that Manager is continuously employed by the OptiNose Companies on each such vesting date. Notwithstanding the foregoing, any unvested portion of the Option Grant will become fully vested and exercisable upon a Change in Control (as more fully set forth in the Plan and the Grant Agreement (as defined below))."
"4.4 Termination without Cause. The OptiNose Companies may, upon written notice to Manager, terminate Managers employment without Cause. Upon a termination of Managers employment without Cause, (a)the OptiNose Companies shall continue to pay to Manager, for twelve months after the last day of Managers employment with the OptiNose Companies, compensation at the rate in effect on the date of termination, and the OptiNose Companies shall continue to provide to Manager, for twelve months after the last day of Managers employment with the OptiNose Companies, the benefits of the standard group medical, vision and dental plans"
"5.6 Non-Disparagement. Manager will not, nor will he induce others to, Disparage the Employer or any of their past or present officers, directors, employees or products. Disparage will mean making comments or statements to the press, the Employers employees or any individual or entity with whom the Employer has a business relationship that would adversely affect in any manner: (i)the conduct of the business of the Employer (including, without limitation, any products or business plans or prospects); or (ii)the business reputation of the Employer, or any of their products, or their past or present officers, directors or employees."
5.11 Survival of Provisions. The obligations contained in this Section5 will survive the termination of Managers employment with the OptiNose Companies and will be fully enforceable thereafter. If it is determined by a court of competent jurisdiction in any state that any restriction in this Section5 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
"11. Governing Law. This Letter 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."
"13. Entire Agreement; Amendments. This Agreement and the agreements referenced herein contain the entire agreement of the parties relating to the subject matter hereof, and supercede in their entirety any and all prior and/or contemporaneous agreements, understandings or representations relating to the subject matter hereof, whether written or oral. No amendments, alterations or modifications of this Agreement will be valid unless made in writing and signed by the parties hereto."
"d. Except as provided in Section[] of the [] Agreement, Executive acknowledges and agrees that the Company has fully satisfied any and all obligations owed to him arising out of his employment with or termination from the Company, and no further sums or benefits are owed to him by the Company or by any of the other Releasees at any time."
"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."
"Pursuant to your Restricted Stock Award Notice (the Award Notice) and this Restricted Stock Award Agreement (this Agreement), Fuse Medical, Inc. (the Company) has granted you a Restricted Stock Award (the Award) under its 2017 Equity Incentive Plan (the Plan) for the number of shares of the Company's Common Stock indicated in your Award Notice.Capitalized terms not defined in this Agreement but defined in the Plan have the same definitions as in the Plan."
"(b) Change in Control. In the event of a Change in Control, subject to the terms of the Plan, the Award shall become immediately vested with respect to 100% of the shares subject to the Award. The Company will take commercially reasonable efforts to provide that acceleration of vesting and exercisability shall occur in a manner and at a time which allows the Participant the ability to participate in the Change in Control with respect to the shares of Common Stock received."
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.
"4.2Restrictions on Transfer of Vested Shares.Vested Shares may not be sold, transferred, assigned, pledged, encumbered or otherwise disposed of in contravention of the provisions of this Agreement without the prior consent of the Plan Administrator.If the Plan Administrator consents to such sale, transfer, assignment, pledge, encumbrance or other disposal of the Vested Shares, you agree to (a) pay the Company a transfer processing fee of $3,500 per transaction (whereby transfers to separate transferees shall be deemed to be separate transactions); (b) provide an opinion of your legal counsel and the counsel of the transferee (concurred in by legal counsel for the Company) stating that such transaction is exempt from registration under applicable securities laws or, in the Company's sole discretion, the Company otherwise satisfies itself that such transaction is exempt from registration under applicable securities laws; (c) make such representations and warranties to the Company as the Company may require; and (d) enter into such agreements related to the transfer as the Company may require.Such restrictions on transfer, however, will not apply to a transfer to the Company in pledge as security for any purchase money indebtedness incurred by you in connection with the acquisition of the Vested Shares.Such restrictions on transfer, however, will not apply to a transfer to the Company in pledge as security for any purchasemoney indebtedness incurred by you in connection with the acquisition of the Vested Shares."
You agree to execute and deliver to the Company with this Agreement a copy of the Acknowledgment and Statement of Decision Regarding Section 83(b) Election attached hereto as Exhibit A.You further agree that you will execute and deliver to the Company with this Agreement a copy of the 83(b) Election attached hereto as Exhibit B if you choose to make such an election.
"The offer and sale of the securities represented by this certificate has not been registered under the Securities Act of 1933, as amended (the Act), or under applicable state securities laws.These securities are subject to restrictions on transferability and resale and may not be transferred or resold except as permitted under the Act and applicable state securities laws, pursuant to registration or exemption therefrom.Investors should be aware that they may be required to bear the financial risks of this investment for an indefinite"
" ---|---|--- 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."
14.6Agreement Is Entire Contract.This Agreement and the Award Notice constitute the entire contract between the parties hereto with regard to the subject matter hereof and supersede all prior oral and written agreements on the subject.This Agreement and the Award Notice are made pursuant to the provisions of the Plan and will in all respects be construed in conformity with the express terms and provisions of the Plan.
"not to make an election pursuant to Section 83(b) of the Code. ---|---|--- 4.Neither the Company nor any affiliate or representative of the Company has made any warranty or representation to the undersigned with respect to the tax consequences of the undersigned's receipt of shares under the Plan or of the making or failure to make an election pursuant to Section 83(b) of the Code or the corresponding provisions, if any, of applicable state law."
"3.5You hereby agree that you will in no event sell or distribute all or any part of the Shares unless (a) you comply with the provisions of this Agreement and (b)(i) there is an effective registration statement under the Securities Act and applicable state securities laws covering any such transaction involving the Shares or (i) the Company receives an opinion of your legal counsel (concurred in by legal counsel for the Company) stating that such transaction is exempt from registration or, in the Companys sole discretion, the Company otherwise satisfies itself that such transaction is exempt from registration."
"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 because 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."
"4.3Transferee Obligations.Each person (other than the Company) to whom Vested Shares are transferred must, as a condition precedent to the validity of such transfer, (a) acknowledge in writing to the Company that such person is bound by the provisions of this Agreement, to the same extent the Vested Shares would be so subject if retained by you; (b) make such representations and warranties to the Company as the Company may require; and (c) enter into such agreements related to the transfer as the Company may require."
" ---|---|--- You understand that under Section 83(a) of the Code, the excess of the Fair Market Value of the Unvested Shares on the date the forfeiture restrictions lapse over the purchase price, if any, paid for such Shares will be taxed, on the date such forfeiture restrictions lapse, as ordinary income subject to payroll and withholding tax and tax reporting, as applicable.For this purpose, the term forfeiture restrictions means the right of the Company to receive back any Unvested Shares upon your Termination of Service.You understand that you may elect under Section 83(b) of the Code to be taxed at the time the Unvested Shares are acquired, rather than when and as the Unvested Shares cease to be subject to the forfeiture restrictions.Such election (an 83(b) Election) must be filed with the Internal Revenue Service within 30 days from the Grant Date of the Award.Even if the Fair Market Value of the Unvested Shares on the Grant Date equals the purchase price, if any, (and thus no tax is payable), you must file the election within the 30day period to avoid the risk of adverse tax consequences in the future."
"You understand that there is a risk the Internal Revenue Service might challenge the Company's determination of the Fair Market Value of the Shares, in which case you may be deemed to have received more ordinary income than originally estimated.You also understand that (a) you will not be entitled to a deduction for any ordinary income previously recognized as a result of the 83(b) Election if the Unvested Shares are subsequently forfeited to the Company, and (b) the 83(b) Election may cause you to recognize more ordinary income than you would have otherwise recognized if the Internal Revenue Service determines that the value of the Unvested Shares on the date the Shares are transferred is higher than the Fair Market Value of the Shares on that date as determined by the Company and/or the value of the Unvested Shares subsequently declines."
" ---|---|--- 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."
" ---|---|--- You understand and agree that, in order to ensure compliance with the restrictions referred to in this Agreement, the Company may issue appropriate stoptransfer instructions to its transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.The Company will not be"
"14.2Notices.Any notice required in connection with (a) the Company's forfeiture and first refusal rights or (b) the disposition of any Shares covered thereby will be given in writing and will be deemed effective upon personal delivery or upon deposit in the U.S. mail, registered or certified, postage prepaid and addressed to the party entitled to such notice at the address indicated in this Agreement or at such other address as such party may designate by ten (10) days' advance written notice under this Section 14.2 to all other parties to this Agreement."
"b. In exchange for the Companys agreement to provide the Participant access to Confidential Information and to protect the Companys legitimate business interests, the Participant agrees to preserve and protect the confidentiality of all Confidential Information. The Participant agrees that during the period of the Participants employment with (or if the Participant is a Contractor or an Outside Director, during the period in which the Participant is providing services to) the Company and at any time thereafter (regardless of the reason for the Termination of Service): (i) the Participant shall hold all Confidential Information in the strictest confidence, take all reasonable precautions and steps to safeguard all Confidential Information and prevent its wrongful use by or wrongful or inadvertent disclosure or dissemination to any unauthorized person or entity, and follow all policies and procedures of the Company protecting or regarding the Confidential Information; and (ii)without the prior written consent of the Board, he or she shall not, directly or indirectly, use for the Participants own account, use for any other purpose, disclose to anyone, publish, exploit, destroy, copy or remove from the offices of the Company, nor solicit, allow or assist another person or entity to use, disclose, publish, exploit, destroy, copy or remove from the offices of the Company, any Confidential Information or part thereof, except: (A)as permitted in the proper performance of the Participants duties or services for the Company; (B)as permitted in the ordinary course of the Companys business for the benefit of the Company; or (C)as otherwise permitted or required by law. The Participant shall immediately notify the Board or Chief Executive Officer (CEO) of the Company if the Participant learns of or suspects any actual or potential unauthorized use or disclosure of Confidential Information concerning the Company. The Participant shall deliver to the Company upon the Participants Termination of Service, or at any other time the Board or the CEO may request, all Confidential Information, Work Product (defined below), and all memoranda, notes, plans, records, reports, computer files, printouts, software, and other documents and data (and copies thereof) relating to Confidential Information, Work Product, or the business of the Company which the Participant may then possess or have under his or her control."
"i. During the period in which the Participant is employed with (or if the Participant is a Contractor or an Outside Director, is providing services to) the Company and for a period of two (2)years after the Participants Termination of Service for any reason (collectively, the Restricted Period), the Participant hereby agrees that, other than in a good faith effort to promote the interests of the Company, the Participant shall not, for himself or herself, or on behalf of or in conjunction with any other person, persons, company, partnership, corporation, business, or other entity of whatever nature, directly or indirectly, (A)recruit, solicit, hire, or retain, or attempt to recruit, solicit, hire, or retain any employee or independent contractor of the Company or any individual who was an employee or independent contractor of the Company within the twelve (12)month period prior to the Participants Termination of Service or encourage any employee or independent contractor of the Company to leave the Companys employ or engagement, as the case may be; (B)solicit business from or attempt to solicit business from any Covered Entity (defined below); or (C)solicit, request, induce or advise, or attempt to solicit, request, induce or advise, any Covered Entity to withdraw, curtail, or cancel its business dealings or contracts with the Company. The restriction in subsection"
"11\. Voting. The Participant, as record holder of the Awarded Shares, has the exclusive right to vote, or consent with respect to, such Awarded Shares until such time as the Awarded Shares are transferred in accordance with this Agreement; provided that this Section11 shall not create any voting right where the holders of such Awarded Shares otherwise have no such right."
"b. The Participant hereby acknowledges and agrees that a violation by the Participant of any of the covenants contained in Section6 and Section7 above would cause irreparable damage to the Company in an amount that would be material but not readily ascertainable and that any remedy at law (including the payment of damages) would be inadequate. Accordingly, the Participant agrees that, notwithstanding any provision of this Agreement to the contrary, the Company shall be entitled (without the necessity of showing economic loss or other actual damage) to seek injunctive relief (including temporary restraining orders, preliminary injunctions, and/or permanent injunctions) in any court of competent jurisdiction for any actual or threatened breach of any of the covenants set forth in Section6 and Section7 in addition to any other legal or equitable remedies the Company may have. The preceding sentence shall not be construed as a waiver of the rights that the Company may have for damages under this Agreement or otherwise, and all of the Companys rights shall be unrestricted."
"21\. Entire Agreement. This Agreement together with the Plan supersede any and all other prior understandings and agreements, either oral or in writing, between the parties with respect to the subject matter hereof and constitute the sole and only agreements between the parties with respect to the said subject matter. All prior negotiations and agreements between the parties with respect to the subject matter hereof are merged into this Agreement. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party or by anyone acting on behalf of any party, which are not embodied in this Agreement or the Plan and that any agreement, statement or promise that is not contained in this Agreement or the Plan shall not be valid or binding or of any force or effect."
"(e) Removal of Notations; Delivery of Certificates Upon Vesting. As soon as administratively practicable after the vesting of any Shares subject to the Award pursuant to Section 2.2(b) hereof, the Company shall, as applicable, either remove the notations on any Shares subject to the Award issued in book entry form which have vested or deliver to Holder a certificate or certificates evidencing the number of Shares subject to the Award which have vested (or, in either case, such lesser number of Shares as may be permitted pursuant to Section 11.2 of the Plan). Holder (or the beneficiary or personal representative of Holder in the event of Holders death or incapacity, as the case may be) shall deliver to the Company any representations or other documents or assurances required by the Company. The Shares so delivered shall no longer be subject to the Restrictions hereunder."
"(a) Forfeiture. Notwithstanding any contrary provision of this Agreement, upon Holders Termination of Service for any or no reason, any portion of the Award (and the Shares subject thereto) which 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 Service, if any) shall thereupon be forfeited immediately and without any further action by the Company, and Holders rights in any Shares and such portion of the Award shall thereupon lapse and expire. For purposes of this Agreement, Restrictions shall mean the restrictions on sale or other transfer set forth in Section 3.3 hereof and the exposure to forfeiture set forth in this Section 2.2(a)."
"3.1 Section 83(b) Election. If Holder makes an election under Section 83(b) of the Code to be taxed with respect to the Restricted Stock as of the date of transfer of the Restricted Stock rather than as of the date or dates upon which Holder would otherwise be taxable under Section 83(a) of the Code, Holder hereby agrees to deliver a copy of such election to the Company promptly after filing such election with the Internal Revenue Service."
3.5 Tax Consultation. Holder understands that Holder may suffer adverse tax consequences in connection with the Restricted Stock granted pursuant to this Agreement (and the Shares issuable with respect thereto). Holder represents that Holder has consulted with any tax consultants Holder deems advisable in connection with the Restricted Stock and that Holder is not relying on the Company for any tax advice.
"3.8 Holders Representations. If the Shares issuable hereunder have not been registered under the Securities Act or any applicable state laws on an effective registration statement at the time of such issuance, Holder shall, if required by the Company, concurrently with such issuance, make such written representations as are deemed necessary or appropriate by the Company and/or its counsel."
"3.12 Amendment, Suspension and Termination. This Agreement may be amended in a writing signed by Holder and a duly authorized representative of the Company. In addition, to the extent permitted by the Plan, this Agreement may be wholly or partially amended or otherwise modified, suspended or terminated at any time or from time to time by the Administrator or the Board; provided, however, that, except as may otherwise be provided by the Plan, no amendment, modification, suspension or termination of this Agreement shall adversely affect the Award in any material way without the prior written consent of Holder."
"3.13 Successors and Assigns. The Company or any affiliate may assign any of its rights under this Agreement to single or multiple assignees, and this Agreement shall inure to the benefit of the successors and assigns of the Company and its affiliates. Subject to the restrictions on transfer set forth in Section 3.3 hereof, this Agreement shall be binding upon Holder and his or her heirs, executors, administrators, successors and assigns."
"3.17 Limitation on Holders Rights. Participation in the Plan confers no rights or interests other than as herein provided. This Agreement creates only a contractual obligation on the part of the Company as to amounts payable and shall not be construed as creating a trust. Neither the Plan nor any underlying program, in and of itself, has any assets. Holder shall have only the rights of a general unsecured creditor of the Company and its affiliates with respect to amounts credited and benefits payable, if any, with respect to the Shares issuable hereunder."
"By his or her signature below or by electronic acceptance or authentication in a form authorized by the Company, the Participant agrees to be bound by the terms and conditions of the Plan, the Agreement and this Grant Notice. The Participant has reviewed the Agreement, the Plan and this Grant Notice in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Grant Notice and fully understands all provisions of this Grant Notice, the Agreement and the Plan. The Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions arising under the Plan, this Grant Notice or the Agreement. If the Participant is married, his or her spouse has signed the Consent of Spouse attached to this Grant Notice as ExhibitB."
"(b) Book Entry Form; Certificates. At the sole discretion of the Administrator, the Restricted Stock will be issued in either (i)uncertificated form, with the shares of Restricted Stock recorded in the name of the Participant in the books and records of the Companys transfer agent with appropriate notations regarding the restrictions on transfer imposed pursuant to this Agreement, and upon vesting and the satisfaction of all conditions set forth in Sections 3(b)hereof, the Company shall remove such notations on any such vested shares of Restricted Stock in accordance with Section2(e)below; or (ii)certificated form pursuant to the terms of Sections 2(c), (d)and (e)below."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN VESTING REQUIREMENTS AND MAYBE SUBJECT TO FORFEITURE UNDER THE TERMS OF A RESTRICTED STOCK AWARD AGREEMENT, BY AND BETWEEN CBTX,INC. AND THE REGISTERED OWNER OF SUCH SHARES, AND SUCH SHARES MAYNOT BE, DIRECTLY OR INDIRECTLY, OFFERED, TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNDER ANY CIRCUMSTANCES, EXCEPT PURSUANT TO THE PROVISIONS OF SUCH AGREEMENT."
"(c) Tax Withholding. As set forth in Section15 of the Plan, the Company shall have the authority and the right to deduct or withhold, or to require the Participant to remit to the Company, an amount sufficient to satisfy all applicable federal, state and local taxes required by law to be withheld with respect to any taxable event arising in connection with the Award. The Company shall not be obligated to deliver any new certificate representing shares of Restricted Stock to the Participant or the Participants legal representative or enter such shares of Restricted Stock in book entry form unless and until the Participant or the Participants legal representative shall have paid or otherwise satisfied in full the amount of all federal, state and local taxes applicable to the taxable income of the Participant resulting from the grant or vesting of the Award or the issuance of such shares of Restricted Stock."
"(c) Restricted Stock Not Transferable. Until the Restrictions hereunder lapse or expire pursuant to this Agreement and the Restricted Stock vests, the Restricted Stock (including any shares received by holders thereof with respect to Restricted Stock as a result of stock dividends, stock splits or any other form of recapitalization) shall be subject to the restrictions on transferability set forth in Section24 of the Plan."
"(p) Successors and Assigns. The Company or any Affiliate may assign any of its rights under this Agreement to single or multiple assignees, and this Agreement shall inure to the benefit of the successors and assigns of the Company and its Affiliates. Subject to the restrictions on transfer set forth in Section4(c)hereof, this Agreement shall be binding upon the Participant and his or her heirs, executors, administrators, successors and assigns."
"Company or any of its Affiliates or shall interfere with or restrict in any way the rights of the Company and its Affiliates, which rights are hereby expressly reserved, to discharge or terminate the services of the Participant at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between the Company or an Affiliate and the Participant."
"(d) Purpose. The Plan, through the grant of Awards, is intended to help the Company secure and retain the services of eligible award recipients, provide incentives for such persons to exert maximum efforts for the success of the Company and any Affiliate, and provide a means by which the eligible recipients may benefit from increases in value of the Common Stock."
"(i) Subject to Section9(a) relating to Capitalization Adjustments, and the following paragraph regarding the annual increase, the aggregate number of shares of Common Stock that may be issued pursuant to Stock Awards will not exceed 5,462,855 shares (the Share Reserve), which number is the sum of (i) 1,618,735 shares, plus (ii)the number of shares that are Returning Shares (3,844,120 shares), as such shares become available from time to time. For clarity, the Share Reserve in this Section3(a) is a limitation on the number of shares of Common Stock that may be issued pursuant to the Plan. Accordingly, this Section3(a) does not limit the granting of Stock Awards except as provided in Section7(a)."
"(iii) Shares may be issued under the terms of this Plan in connection with a merger or acquisition as permitted by NASDAQ Listing Rule 5635(c), or, if applicable, NYSE Listed Company Manual Section303A.08, AMEX Company Guide Section711 or other applicable rule, and such issuance will not reduce the number of shares available for issuance under the Plan."
(b) Ten Percent Stockholders. A Ten Percent Stockholder will not be granted an Incentive Stock Option unless the exercise price of such Option is at least 110% of the Fair Market Value on the date of grant and the Option is not exercisable after the expiration of five years from the date of grant.
"5. | PROVISIONS RELATING TO OPTIONS AND STOCK APPRECIATION RIGHTS. ---|--- Each Option or SAR will be in such form and will contain such terms and conditions as the Board deems appropriate. All Options will be separately designated Incentive Stock Options or Nonstatutory Stock Options at the time of grant, and, if certificates are issued, a separate certificate or certificates will be issued for shares of Common Stock purchased on exercise of each type of Option. If an Option is not specifically designated as an Incentive Stock Option, or if an Option is designated as an Incentive Stock Option but some portion or all of the Option fails to qualify as an Incentive Stock Option under the applicable rules, then the Option (or portion thereof) will be a Nonstatutory Stock Option. The provisions of separate Options or SARs need not be identical; provided, however, that each Stock Award Agreement will conform to (through incorporation of provisions hereof by reference in the applicable Stock Award Agreement or otherwise) the substance of each of the following provisions:"
"(c) Purchase Price for Options. The purchase price of Common Stock acquired pursuant to the exercise of an Option may be paid, to the extent permitted by applicable law and as determined by the Board in its sole discretion, by any combination of the methods of payment set forth below. The Board will have the authority to grant Options that do not permit all of the following methods of payment (or otherwise restrict the ability to use certain methods) and to grant Options that require the consent of the Company to use a particular method of payment. The permitted methods of payment are as follows:"
(f) Vesting Generally. The total number of shares of Common Stock subject to an Option or SAR may vest and become exercisable in periodic installments that may or may not be equal. The Option or SAR may be subject to such other terms and conditions on the time or times when it may or may not be exercised (which may be based on the satisfaction of Performance Goals or other criteria) as the Board may deem appropriate. The vesting provisions of individual Options or SARs may vary. The provisions of this Section5(f) are subject to any Option or SAR provisions governing the minimum number of shares of Common Stock as to which an Option or SAR may be exercised.
"(g) Termination of Continuous Service. Except as otherwise provided in the applicable Stock Award Agreement or other agreement between the Participant and the Company, if a Participants Continuous Service terminates (other than for Cause and other than upon the Participants death or Disability), the Participant may exercise his or her Option or SAR (to the extent that the Participant was entitled to exercise such Stock Award as of the date of termination of Continuous Service) within the period of time ending on the earlier of (i) the date three(3)months following the termination of the Participants Continuous Service (or such longer or shorter period specified in the applicable Stock Award Agreement, which period will not be less than 30 days if necessary to comply with applicable laws unless such termination is for Cause), and (ii) the expiration of the term of the Option or SAR as set forth in the Stock Award Agreement. If, after termination of Continuous Service, the Participant does not exercise his or her Option or SAR (as applicable) within the applicable time frame, the Option or SAR will terminate."
"(v) Dividend Equivalents. Dividend equivalents may be credited in respect of shares of Common Stock covered by a Restricted Stock Unit Award, as determined by the Board and contained in the Restricted Stock Unit Award Agreement. At the sole discretion of the Board, such dividend equivalents may be converted into additional shares of Common Stock covered by the Restricted Stock Unit Award in such manner as determined by the Board. Any additional shares covered by the Restricted Stock Unit Award credited by reason of such dividend equivalents will be subject to all of the same terms and conditions of the underlying Restricted Stock Unit Award Agreement to which they relate."
"(b) Compliance with Law. The Company will seek to obtain from each regulatory commission or agency having jurisdiction over the Plan such authority as may be required to grant Stock Awards and to issue and sell shares of Common Stock upon exercise or vesting of the Stock Awards; provided, however, that this undertaking will not require the Company to register under the Securities Act or other applicable law, the Plan, any Stock Award or any Common Stock issued or issuable pursuant to any such Stock Award. If, after reasonable efforts and at a reasonable cost, the Company is unable to obtain from any such regulatory commission or agency the authority that counsel for the Company deems necessary for the lawful issuance and sale of Common Stock under the Plan, the Company will be relieved from any liability for failure to issue and sell Common Stock upon exercise or vesting of such Stock Awards unless and until such authority is obtained. A Participant will not be eligible for the grant of an Award or the subsequent issuance of cash or Common Stock pursuant to the Award if such grant or issuance would be in violation of any applicable law."
"(iii) accelerate the vesting, in whole or in part, of the Stock Award (and, if applicable, the time at which the Stock Award may be exercised) to a date prior to the effective time of such Transaction as the Board determines (or, if the Board does not determine such a date, to the date that is five (5)days prior to the effective date of the Transaction), with such Stock Award terminating if not exercised (if applicable) at or prior to the effective time of the Transaction; provided, however, that the Board may require Participants to complete and deliver to the Company a notice of exercise before the effective date of a Transaction, which exercise is contingent upon the effectiveness of such Transaction;"
"(v) Exchange Act Person means any natural person, Entity or group (within the meaning of Section13(d) or 14(d) of the Exchange Act), except that Exchange Act Person will not include (i)the Company or any Subsidiary of the Company, (ii)any employee benefit plan of the Company or any Subsidiary of the Company or any trustee or other fiduciary holding securities under an employee benefit plan of the Company or any Subsidiary of the Company, (iii)an underwriter temporarily holding securities pursuant to a registered public offering of such securities, (iv)an Entity Owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their Ownership of stock of the Company; or (v)any natural person, Entity or group (within the meaning of Section13(d) or 14(d) of the Exchange Act) that, as of the IPO Date, is the Owner, directly or indirectly, of securities of the Company representing more than 50% of the combined voting power of the Companys then outstanding securities."
"Pursuant to your Stock Option Grant Notice (Stock Option Grant Notice) and this Option Agreement (this Option Agreement), Aquantia Corp. (the Company) has granted you an option under its 2017 Equity Incentive Plan (the Plan) to purchase the number of shares of the Companys Common Stock indicated in your Stock Option Grant Notice at the exercise price indicated in your Stock Option Grant Notice. The option is granted to you effective as of the date of grant set forth in the Stock Option Grant Notice (the Date of Grant). If there is any conflict between the terms in this Option Agreement and the Plan, the terms of the Plan will control. Capitalized terms not explicitly defined in this Option Agreement or in the Stock Option Grant Notice but defined in the Plan will have the same definitions as in the Plan."
"5. METHOD OF PAYMENT. You must pay the full amount of the exercise price for the shares you wish to exercise. You may pay the exercise price in cash or by check, bank draft, wire transfer or money order payable to the Company or in any other manner permitted by your Stock Option Grant Notice, which may include one or more of the following: "
"(b) By exercising your option you agree that, as a condition to any exercise of your option, the Company may require you to enter into an arrangement providing for the payment by you to the Company of any tax withholding obligation of the Company arising by reason of (i)the exercise of your option, or (ii)the disposition of shares of Common Stock acquired upon such exercise."
"(c) If your option is an Incentive Stock Option, by exercising your option you agree that you will notify the Company in writing within fifteen (15)days after the date of any disposition of any of the shares of the Common Stock issued upon exercise of your option that occurs within two (2)years after the Date of Grant or within one (1)year after such shares of Common Stock are transferred upon exercise of your option."
"(a) Certain Trusts. Upon receiving written permission from the Board or its duly authorized designee, you may transfer your option to a trust if you are considered to be the sole beneficial owner (determined under Section671 of the Code and applicable state law) while the option is held in the trust. You and the trustee must enter into transfer and other agreements required by the Company."
"(a) At the time you exercise your option, in whole or in part, and at any time thereafter as requested by the Company, you hereby authorize withholding from payroll and any other amounts payable to you, and otherwise agree to make adequate provision for (including by means of a same day sale pursuant to a program developed under Regulation T as promulgated by the Federal Reserve Board to the extent permitted by the Company), any sums required to satisfy the federal, state, local and foreign tax withholding obligations of the Company or an Affiliate, if any, which arise in connection with the exercise of your option."
"14. TAX CONSEQUENCES. You hereby agree that the Company does not have a duty to design or administer the Plan or its other compensation programs in a manner that minimizes your tax liabilities. You will not make any claim against the Company, or any of its Officers, Directors, Employees or Affiliates related to tax liabilities arising from your option or your other compensation. In particular, you acknowledge that this option is exempt from Section409A of the Code only if the exercise price per share specified in the Stock Option Grant Notice is at least equal to the fair market value per share of the Common Stock on the Date of Grant and there is no other impermissible deferral of compensation associated with the option. "
"|  | | | | | |  | Total exercise price: |  | $  |  | $  |  | | | | | |  | Cash payment delivered herewith: |  | $  |  | $  |  | | | | | |  | Regulation T Program (cashless exercise1): |  | $  |  | $  |  | | | | | |  | Value of  Shares delivered herewith2: |  | $  |  | $ ] |  | By this exercise, I agree (i)to provide such additional documents as you may require pursuant to the terms of the Aquantia Corp. 2017 Equity Incentive Plan, (ii)to provide for the payment by me to you (in the manner designated by you) of your withholding obligation, if any, relating to the exercise of this option, and (iii)if this exercise relates to an incentive stock option, to notify you in writing within fifteen (15)days after the date of any disposition of any of the Shares issued upon exercise of this option that occurs within two (2)years after the date of grant of this option or within one (1)year after such Shares are issued upon exercise of this option."
"7\. SECURITIES LAW COMPLIANCE. In no event may you be issued any shares of Common Stock under your Award unless the shares are either then registered under the Securities Act or, if not registered, the Company has determined that such issuance would be exempt from the registration requirements of the Securities Act. Your Award and the issuance of shares of Common Stock under your Award also must comply with all other applicable laws and regulations, and you will not receive any shares of Common Stock under your Award if the Company determines that such receipt would not be in material compliance with such laws and regulations."
"8\. AWARD NOT A SERVICE CONTRACT. Your Award is not an employment or service contract, and nothing in your Award will be deemed to create in any way whatsoever any obligation on your part to continue in the employ of the Company or an Affiliate, or on the part of the Company or an Affiliate to continue your employment. In addition, nothing in your Award will obligate the Company or an Affiliate, their respective stockholders, boards of directors, Officers or Employees to continue any relationship that you might have as a Director or Consultant for the Company or an Affiliate."
"9. | WITHHOLDING OBLIGATIONS. ---|--- (a) At the time your Award is made, or at any time thereafter as requested by the Company, you hereby authorize withholding from payroll and any other amounts payable to you, and otherwise agree to make adequate provision for any sums required to satisfy the federal, state, local and foreign tax withholding obligations of the Company or an Affiliate, if any, which arise in connection with your Award (the Withholding Taxes). The Company may, in its sole discretion, satisfy all or any portion of the Withholding Taxes obligation relating to your Award by any of the following means or by a combination of such means: (i)withholding from any amounts otherwise payable to you by the Company; (ii)causing you to tender a cash payment; (iii)withholding shares of Common Stock from the shares of Common Stock issued or otherwise issuable to you in connection with the Award with a Fair Market Value equal to the amount of such Withholding Taxes or (iv)permitting or requiring you to enter into a same day sale commitment, if applicable, with a broker-dealer that is a member of the Financial Industry Regulatory Authority (a FINRA Dealer) whereby you irrevocably elect to sell a portion of the shares subject to your Award to satisfy the Withholding Taxes and whereby the FINRA Dealer irrevocably commits to forward the proceeds necessary to satisfy the Withholding Taxes directly to the Company and/or its Affiliates; provided, however, that to the extent necessary to qualify for an exemption from application of Section16(b) of the Exchange Act, if applicable, such share withholding procedure will be subject to the express prior approval of the Companys Compensation Committee."
"12\. GOVERNING PLAN DOCUMENT. Your Award is subject to all the provisions of the Plan, the provisions of which are hereby made a part of your Award, and is further subject to all interpretations, amendments, rules and regulations which may from time to time be promulgated and adopted pursuant to the Plan. In the event of any conflict between the provisions of your Award and those of the Plan, the provisions of the Plan will control. In addition, your Award (and any compensation paid or shares issued under your Award) is subject to recoupment in accordance with The DoddFrank Wall Street Reform and Consumer Protection Act and any implementing regulations thereunder, any clawback policy adopted by the Company and any compensation recovery policy otherwise required by applicable law. No recovery of compensation under such a clawback policy will be an event giving rise to a right to voluntarily terminate employment upon a resignation for good reason, or for a constructive termination or any similar term under any plan of or agreement with the Company."
"13\. 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."
"2\. VESTING. Subject to the limitations contained herein, your Award will vest, if at all, in accordance with the vesting schedule provided in the Grant Notice, provided that vesting will cease upon the termination of your Continuous Service. Upon such termination of your Continuous Service, the Restricted Stock Units/shares of Common Stock credited to the Account that were not vested on the date of such termination will be forfeited at no cost to the Company and you will have no further right, title or interest in or to such underlying shares of Common Stock."
"4\. SECURITIES LAW COMPLIANCE. You may not be issued any Common Stock under your Award unless the shares of Common Stock underlying the Restricted Stock Units are either (i)then registered under the Securities Act, or (ii)the Company has determined that such issuance would be exempt from the registration requirements of the Securities Act. Your Award must also comply with other applicable laws and regulations governing the Award, and you will not receive such Common Stock if the Company determines that such receipt would not be in material compliance with such laws and regulations."
"then the shares that would otherwise be issued to you on the Original Issuance Date will not be delivered on such Original Issuance Date and will instead be delivered on the first business day when you are not prohibited from selling shares of the Companys Common Stock in the open public market, but in no event later than December31 of the calendar year in which the Original Issuance Date occurs (that is, the last day of your taxable year in which the Original Issuance Date occurs), or, if and only if permitted in a manner that complies with Treasury Regulations Section1.409A-1(b)(4), no later than the date that is the 15th day of the third calendar month of the applicable year following the year in which the shares of Common Stock under this Award are no longer subject to a substantial risk of forfeiture within the meaning of Treasury Regulations Section1.409A-1(d)."
"(b) 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. If the obligation for Withholding Taxes is satisfied by withholding in shares of Common Stock, for tax purposes, you are deemed to have been issued the full number of shares of Common Stock subject to the vested Restricted Stock Units notwithstanding that a number of the shares of Common Stock are held back solely for the purpose of paying the Withholding Taxes."
"12\. TAX CONSEQUENCES. The Company has no duty or obligation to minimize the tax consequences to you of this Award and will not be liable to you for any adverse tax consequences to you arising in connection with this Award. You are hereby advised to consult with your own personal tax, financial and legal advisors regarding the tax consequences of this Award and by signing the Grant Notice, you have agreed that you have done so or knowingly and voluntarily declined to do so. You understand that you (and not the Company) will be responsible for your own tax liability that may arise as a result of this investment or the transactions contemplated by this Award Agreement."
"(g) All obligations of the Company under the Plan and this Award Agreement will be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and assets of the Company."
"18\. EFFECT ON OTHER EMPLOYEE BENEFIT PLANS. The value of the Award subject to this Award Agreement will not be included as compensation, earnings, salaries, or other similar terms used when calculating benefits under any employee benefit plan (other than the Plan) sponsored by the Company or any Affiliate except as such plan otherwise expressly provides. The Company expressly reserves its rights to amend, modify, or terminate any or all of the employee benefit plans of the Company or any Affiliate."
"20\. SEVERABILITY. If all or any part of this Award Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity will not invalidate any portion of this Award Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Award Agreement (or part of such a Section) so declared to be unlawful or invalid will, 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."
"(4) Notwithstanding anything contained in any award agreement or plan to the contrary, in the event that upon a Change in Control (as hereinafter defined) the surviving, continuing, successor or purchasing corporation or other business entity or affiliate thereof does not assume or continue any then outstanding equity or equity-based awards awarded pursuant to this Paragraph 5C or grant substitute awards or rights, (i) any such then outstanding awards whose vesting is not subject to performance-based conditions shall vest immediately prior to the Change in Control and (ii) any such then outstanding awards that are subject to performance-based vesting conditions shall vest immediately prior to the Change in Control at the target level and to the extent (but only to the extent) any such awards are in excess of the target level they shall be forfeited immediately prior to the Change in Control. For the sake of clarification, Executive shall be entitled to the benefit of clauses (i) and (ii) above if the substitute awards or rights (w) do not preserve, immediately after the Change in Control relative to immediately prior to the Change in Control, the economic value of the then outstanding equity or equity-based awards awarded pursuant to this Paragraph 5C, (x) do not adhere to the same vesting dates, with the same economic value that otherwise would have vested on such vesting dates, as those applicable to the then outstanding equity or equity-based awards awarded pursuant to this Paragraph 5C, (y) are not subject to the terms of Paragraph 7 below, or (z) purport to impose restrictive covenants other than those set forth in this Agreement."
"(1) the assignment to the Executive of any duties materially inconsistent in any respect with Paragraph 2 of this Agreement, or any other action by the Employer that results in a material diminution in the Executives title, authority, duties, responsibilities, or reporting relationships (for the sake of clarification, a Change in Control in itself shall not constitute grounds for Good Reason unless there shall also have been such assignment of such duties or such material diminution (which, for the sake of further clarification, shall include Executives having ceased to be the President and Chief Executive Officer of a publicly-traded company));"
"C. If the Executives services are terminated pursuant to Paragraph 6C or 6D within twenty-four (24) months following a Change in Control, and the Executive complies with the release requirements set forth in Paragraph 7F, the Executive shall be entitled to receive, in addition to the payments and benefits set forth in Paragraph 7A:"
"G. In the event that the Executives employment is terminated pursuant to Paragraph 6A of this Agreement (death or Disability), notwithstanding anything contained in any award agreement or plan to the contrary, any then outstanding non-vested stock options, restricted stock or other equity or equity-based awards awarded pursuant to Paragraph 5C of this Agreement shall be treated in accordance with Paragraph 7C(ii) of this Agreement."
"account the applicable federal, state and local income taxes and the Excise Tax). The determination that a Payment is subject to the Excise Tax shall be made in writing by the principal certified public accounting firm then retained by the Employer to audit its annual financial statements (the Accounting Firm). Such determination shall include the amount of the Excise Tax and detailed computations thereof, including any assumptions used in such computations. The determination by the Accounting Firm will be binding on the Employer and Executive, except for manifest computational error, which the Accounting Firm shall correct upon notice from the Employer or the Executive."
"14.Entire Agreement. This Agreement sets forth the entire and final agreement and understanding of the parties and contain all of the agreements made between the parties with respect to the subject matter hereof. This Agreement supersedes any and all other agreements, either oral or in writing, between the parties hereto, with respect to the subject matter hereof. No change or modification of this Agreement shall be valid unless in writing and signed by the Employer and the Executive."
"Pursuant to the Molina Healthcare, Inc. 2011 Equity Incentive Plan (the Plan), Molina Healthcare, Inc., a Delaware corporation (together with its successors, the Company), hereby grants to the Participant named in the Notice of Grant of Stock Option attached hereto (the Notice) an option to purchase on such dates as specified herein, all or any part of the number of shares of Stock indicated in the Notice (the Option Shares, and such shares once issued shall be referred to as the Issued Shares, each as adjusted pursuant to Section 5 hereof), at the Exercise Price specified in the Notice, subject to the terms and conditions set forth in this Stock Option Agreement, the Notice and the Plan. All capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Notice and the Plan (as applicable)."
"(d)Subject to the provisions of Section 6 hereof, once any portion of this Option becomes vested and exercisable, it shall continue to be exercisable by the Participant or his or her representatives and legatees as contemplated herein at any time or times prior to the earliest of: (i) the date which is: (A) twelve (12) months following the date on which the Participants Service terminates due to death or Disability, or (B) three (3) years following the date on which the Participants Service terminates if the termination is due to any other reason, or (ii) the Expiration Date."
"(e)If designated as an Incentive Stock Option in the Notice, the Participant understands that in order to obtain the benefits of an incentive stock option under Section 422 of the Code, subject to any amendments thereof, no sale or other disposition may be made of Issued Shares within the one (1)-year period after the day of issuance of such Issued Shares to him or her (i.e.,"
"to the Participant upon compliance to the satisfaction of the Committee with all requirements under applicable laws, regulations or rules in connection with such issuance. Until the Participant shall have complied with the requirements hereof and of the Plan, including the withholding requirements set forth in Section 7 hereof, the Company shall be under no obligation to issue the Option Shares. The determination of the Committee as to such compliance shall be final and binding on the Participant. The Participant shall not be deemed to be the holder of, or to have any of the rights of a holder with respect to, any Issued Shares unless and until this Option shall have been exercised pursuant to the terms hereof and the Company shall have issued and delivered such Issued Shares to the Participant (as evidenced by an appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company.) Thereupon, the Participant shall have full dividend and other ownership rights with respect to such Issued Shares, subject to the terms of this Option Agreement and the Plan."
"(b)Payment in Stock. Subject to approval by the Committee, the Participant may elect to have the minimum tax withholding obligation satisfied, in whole or in part, by: (i) authorizing the Company to withhold from shares of Stock to be issued a number of shares of Stock with an aggregate Fair Market Value (as of the date the withholding is effected) that would satisfy the withholding amount due, or (ii) transferring to the Company shares of Stock owned by the Participant with an aggregate Fair Market Value (as of the date the withholding is effected) that"
"The Participant and each Permitted Transferee agrees that, if the Company proposes to offer for sale any shares of Stock pursuant to a secondary offering and if requested by the Company and any underwriter engaged by the Company for a reasonable period of time specified by the Company or such underwriter following the effective date of the registration statement filed with respect to such offering, the Participant will not, directly or indirectly, offer, sell, pledge, contract to sell (including any short sale), grant any option to purchase, or otherwise dispose of any securities of the Company held by him or her (except for any securities sold pursuant to such registration statement) or enter into any Hedging Transaction (as defined below) relating to any securities of the Company held by him or her (including, without limitation, pursuant to Rule 144 under the Act or any successor or similar exemptive rule hereinafter in effect). Notwithstanding the foregoing, such period of time shall not exceed ninety (90) days. For purposes of this Section 9 Hedging Transaction means any short sale (whether or not against the box) or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the Stock."
"(i)Benefit and Binding Effect. This Option Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their respective successors, permitted assigns, and legal representatives. The Company has the right to assign this Option Agreement and such assignee shall become entitled to all the rights of the Company hereunder to the extent of such assignment."
"THIS PERFORMANCE STOCK UNIT AWARD AGREEMENT (this Agreement) dated [], by and between MOLINA HEALTHCARE, INC., a Delaware corporation (the Corporation), and Joseph M. Zubretsky (the Participant), evidences the award of Performance Units (the Award) granted by the Corporation to the Participant as to the number of Performance Units first set forth below."
"The Award is granted under the MOLINA HEALTHCARE, INC. 2011 EQUITY INCENTIVE PLAN AMENDED AND RESTATED EFFECTIVE AS OF JANUARY 1, 2017 (the Plan) and that certain Employment Agreement, dated as of October 9, 2017 (the Employment Agreement), by and between the Corporation and the Participant, and is subject to the Terms attached to this Agreement (incorporated herein by this reference) and to the Plan and the Employment Agreement. The Award has been granted to the Participant in addition to, and not in lieu of, any other form of compensation otherwise payable or to be paid to the Participant. Capitalized terms are defined in the Plan if not defined herein. The parties agree to the terms of the Award set forth herein. The Participant acknowledges receipt of a copy of the Terms, the Employment Agreement, the Plan, and the Prospectus for the Plan."
"Unless otherwise determined by the Committee, neither the Award, nor any interest therein may be sold, assigned, transferred, pledged or otherwise disposed of, alienated or encumbered, either voluntarily or involuntarily. The transfer restrictions in the preceding sentence shall not apply to (a) transfers to the Corporation, or (b) transfers by will or the laws of descent and distribution."
"7.1 Effect of Change in Control. In the event of a Change in Control, if, within twenty-four (24) months following a Change in Control, the Participants Service is terminated by the Corporation without Cause or the Participant terminates his employment for Good Reason, then the Performance Units shall become immediately 100% vested and the Corporation shall deliver to the Participant one share of Common Stock for each Performance Unit that vested as result of such termination."
"The Award and all rights of the Participant under this Agreement are subject to, and the Participant agrees to be bound by, all of the terms and conditions of the provisions of the Plan and the Employment Agreement, both of which are incorporated herein by reference. In the event of a conflict or inconsistency between the terms and conditions of this Agreement and those of the Plan and the Employment Agreement, the terms and conditions of the Plan and the Employment Agreement shall govern. The Participant acknowledges having read and understood the Plan, the Prospectus for the Plan, the Employment Agreement, and this Agreement. Unless otherwise expressly provided in other sections of this Agreement, provisions of the Plan and the Employment Agreement that confer discretionary authority on the Committee do not (and shall not be deemed to) create any rights in the Participant unless such rights are expressly set forth herein or are otherwise in the sole discretion of the Committee so conferred by appropriate action of the Committee under the Plan and the Employment Agreement after the date hereof."
"Participation in this Plan confers no rights or interests other than as herein provided. This Agreement creates only a contractual obligation on the part of the Corporation as to amounts payable and shall not be construed as creating a trust. Neither the Plan nor any underlying program, in and of itself, has any assets. The Participant shall have only the rights of a general unsecured creditor of the Corporation (or applicable Subsidiary Corporation) with respect to amounts credited and benefits payable in cash, if any, with respect to the Performance Units, and rights no greater than the right to receive the Common Stock (or equivalent value) as a general unsecured creditor with respect to Performance Units, as and when payable thereunder."
"Effective as of March 1, 2018 (the Effective Date), the Company grants to the Grantee a restricted stock award of [Grant amount of $4 million, with actual number of shares to be determined by reference to closing price on February 28, 2018] [] shares of Common Stock (the Shares), subject to the terms and conditions set forth in this Agreement and in accordance with the terms of the Plan (the Restricted Stock Award)."
"Company a blank stock power with respect to the Shares as a condition to the receipt of this Restricted Stock Award. After any Shares vest pursuant to Section 3 hereof, and following payment of the applicable withholding taxes pursuant to Section 6 of this Agreement, the Company shall promptly cause to be issued a certificate or certificates, registered in the Grantees name, evidencing such vested whole Shares (less any Shares withheld to pay withholding taxes) and shall cause such certificate or certificates to be delivered to the Grantee free of the legend and the stop-transfer order referenced above. The Company will not deliver any fractional Share but will pay, in lieu thereof, the Fair Market Value of such fractional Share at the time certificates evidencing the Shares are delivered to the Grantee."
"(a) Vesting. Subject to the terms and conditions of this Agreement, one-fourth (1/4th) of the Shares shall vest, and the restrictions with respect to the Shares shall lapse, on each of the first, second, third, and fourth anniversaries of the Effective Date if the Grantee remains continuously employed by the Company or an Affiliate of the Company until such respective vesting dates."
"The Shares shall be subject to the terms and conditions of this Agreement. Except as otherwise provided in Section 5, no adjustment shall be made for dividends or other rights for which the record date is prior to the issuance of the Shares. The Company shall not be required to deliver any Shares until the requirements of any federal or state securities or other laws, rules or regulations (including the rules of any securities exchange) as may be determined by the Committee to be applicable are satisfied."
"(b)Exclusions. Notwithstanding anything to the contrary in Section 3(a) above, nothing herein waives or releases: (i) the Executives rights to any payments the Employer is required to make pursuant to Section 2 hereof or Paragraph 7A of the Employment Agreement; (ii) the Executives rights to indemnification which the Executive may have as a director or officer of Employer or any of its subsidiaries under any agreement or such entitys governing documents, D&O insurance policies or applicable law; (iii) the Executives rights with respect to the vested equity interests in the Employer held by him, which he acknowledges and agrees is comprised of [__] vested shares of common stock, and vested options to purchase [__] shares of common stock, at an exercise price of $[___] per share, which in each case are subject to the terms and conditions of the applicable equity incentive plans and award agreements; and (iv) any rights that cannot be waived as a matter of law."
"9. No Pending or Future Lawsuits. The Executive represents that he has no lawsuits, claims or actions pending in his name, or on behalf of any other person or entity, against any Released Party. The Executive also represents that he does not intend to bring any claims on his own behalf or on behalf of any other person or entity against any Released Party."
"Fair Market Value of the Stock on any given date means the fair market value of the Stock determined in good faith by the Administrator; provided, however, that if the Stock is admitted to quotation on the National Association of Securities Dealers Automated Quotation System (NASDAQ), NASDAQ Global Market or another national securities exchange, the determination shall be made by reference to market quotations. If there are no market quotations for such date, the determination shall be made by reference to the last date preceding such date for which there are market quotations; provided further, however, that if the date for which Fair Market Value is determined is the first day when trading prices for the Stock are reported on a national securities exchange, the Fair Market Value shall be the Price to the Public (or equivalent) set forth on the cover page for the final prospectus relating to the Companys Initial Public Offering."
"Sale Event means (i)the sale of all or substantially all of the assets of the Company on a consolidated basis to an unrelated person or entity, (ii)a merger, reorganization or consolidation pursuant to which the holders of the Companys outstanding voting power and outstanding stock immediately prior to such transaction do not own a majority of the outstanding voting power and outstanding stock or other equity interests of the resulting or successor entity (or its ultimate parent, if applicable) immediately upon completion of such transaction, (iii)the sale of all of the Stock of the Company to an unrelated person, entity or group thereof acting in concert, or (iv)any other transaction in which the owners of the Companys outstanding voting power immediately prior to such transaction do not own at least a majority of the outstanding voting power of the Company or any successor entity immediately upon completion of the transaction other than as a result of the acquisition of securities directly from the Company."
"(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 for the purchase price; provided that in the event the optionee chooses to pay the 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 Company shall prescribe as a condition of such payment procedure; or"
"(c) Rights as a Stockholder. A grantee shall have the rights as a stockholder only as to shares of Stock acquired by the grantee upon settlement of Restricted Stock Units; provided, however, that the grantee may be credited with Dividend Equivalent Rights with respect to the stock units underlying his Restricted Stock Units, subject to the provisions of Section14 and such terms and conditions as the Administrator may determine."
"Grant or Sale of Unrestricted Stock. The Administrator may grant (or sell at par value or such higher purchase price determined by the Administrator) an Unrestricted Stock Award under the Plan. An Unrestricted Stock Award is an Award pursuant to which the grantee may receive shares of Stock free of any restrictions under the Plan. Unrestricted Stock Awards may be granted in respect of past services or other valid consideration, or in lieu of cash compensation due to such grantee."
"(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) 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."
"(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 includable in the gross income of the grantee for Federal income tax purposes, pay to the Company, or make arrangements satisfactory to the Administrator regarding payment of, any Federal, state, or local taxes of any kind required by law to be withheld by the Company with respect to such income. The Company and its Subsidiaries 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."
"number of shares with an aggregate Fair Market Value (as of the date the withholding is effected) that would satisfy the withholding amount due; provided, however, that the amount withheld does not exceed the maximum statutory tax rate or such lesser amount as is necessary to avoid adverse accounting treatment or as determined by the Administrator. The Administrator may also require Awards to be subject to mandatory share withholding up to the required withholding amount. For purposes of share withholding, the Fair Market Value of withheld shares shall be determined in the same manner as the value of Stock includible in income of the Participants."
"repricing through cancellation and re-grants or cancellation of Stock Options or Stock Appreciation Rights in exchange for cash or other Awards. To the extent required under the rules of 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 Section19 shall limit the Administrators authority to take any action permitted pursuant to Section3(b) or 3(c)."
"(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, rules and 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"
| | | | | | ---|---|---|---|---|---|--- NameofOptionee: |  |    |  | | | | No.ofOptionShares: |  |  |  | |  | | | | OptionExercisePriceperShare: |  | $  |  | |  | | | | Grant Date:
"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; or (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; or (iv)a combination of (i), (ii) and (iii)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."
"|  |  |  | |  | Pursuant to the Allena Pharmaceuticals, Inc. 2017 Stock Option and Incentive Plan as amended through the date hereof (the Plan), Allena Pharmaceuticals, Inc. (the Company) hereby grants to the Optionee named above an option (the Stock Option) to purchase on or prior to the Expiration Date specified above all or part of the number of shares of Common Stock, par value $0.001 per share (the Stock) of the Company specified above at the Option Exercise Price per Share specified above subject to the terms and conditions set forth herein and in the Plan. This Stock Option is not intended to be an incentive stock option under Section422 of the Internal Revenue Code of 1986, as amended."
7\. No Obligation to Continue Employment. Neither the Company nor any Subsidiary is obligated by or as a result of the Plan or this Agreement to continue the Optionee in employment and neither the Plan nor this Agreement shall interfere in any way with the right of the Company or any Subsidiary to terminate the employment of the Optionee at any time.
"1\. Exercisability Schedule. No portion of this Stock Option may be exercised until such portion shall have become exercisable. Except as set forth below, and subject to the discretion of the Administrator (as defined in Section2 of the Plan) to accelerate the exercisability schedule hereunder, this Stock Option shall be exercisable with respect to the following number of Option Shares on the dates indicated so long as the Optionee remains in service as a member of the Board on such dates:"
"(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"
"(a) Termination Due to Death. If the Optionees service as a Director terminates by reason of the Optionees death, any portion of this Stock Option outstanding on such date, to the extent exercisable on the date of death, may thereafter be exercised by the Optionees legal representative or legatee for a period of 12 months from the date of death or until the Expiration Date, if earlier. Any portion of this Stock Option that is not exercisable on the date of death 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."
"| | | | | | ---|---|---|---|---|---|--- Name of Grantee: |  |  |  |  |  | | | | No. of Shares: |  |  |  | |  | | | | Grant Date: |  |  |  | |  | Pursuant to the Allena Pharmaceuticals, Inc. 2017 Stock Option and Incentive Plan as amended through the date hereof (the Plan), Allena Pharmaceuticals, Inc. (the Company) hereby grants a Restricted Stock Award (an Award) to the Grantee named above. Upon acceptance of this Award, the Grantee shall receive the number of shares of Common Stock, par value $0.001 per share (the Stock) of the Company specified above, subject to the restrictions and conditions set forth herein and in the Plan. The Company acknowledges the receipt from the Grantee of consideration with respect to the par value of the Stock in the form of cash, past or future services rendered to the Company by the Grantee or such other form of consideration as is acceptable to the Administrator."
"3\. Vesting of Restricted Stock. The restrictions and conditions in Paragraph2 of this Agreement shall lapse on the Vesting Date or Dates specified in the following schedule so long as the Grantee continues to provide services to the Company or a Subsidiary on such Dates. If a series of Vesting Dates is specified, then the restrictions and conditions in Paragraph2 shall lapse only with respect to the number of shares of Restricted Stock specified as vested on such date."
"5\. Incorporation of Plan. Notwithstanding anything herein to the contrary, this Agreement 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."
"6\. 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. 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 to the Grantee a number of shares of Stock with an aggregate Fair Market Value that would satisfy the withholding amount due."
8\. No Obligation to Continue Employment. Neither the Company nor any Subsidiary is 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 Company or any Subsidiary to terminate the employment of the Grantee at any time.
"| | | | | | ---|---|---|---|---|---|--- Name of Grantee: |  |  |  |  |  | | | | No.ofRestrictedStockUnits: |  |  |  | |  | | | | Grant Date: |  |  |  | |  | Pursuant to the Allena Pharmaceuticals, Inc. 2017 Stock Option and Incentive Plan as amended through the date hereof (the Plan), Allena Pharmaceuticals, Inc. (the Company) hereby grants an award of the number of Restricted Stock Units listed above (an Award) to the Grantee named above. Each Restricted Stock Unit shall relate to one share of Common Stock, par value $0.001 per share (the Stock) of the Company."
"(c) Affiliate means any Person that directly or indirectly controls, is controlled by or is under common control with the Company. The term control (including, with correlative meaning, the terms controlled by and under common control with), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting or other securities, by contract or otherwise."
"(j) Code means the Internal Revenue Code of 1986, as amended, and any successor thereto. Reference in the Plan to any section of the Code shall be deemed to include any regulations or other interpretative guidance under such section, and any amendments or successor provisions to such section, regulations or guidance."
"(t) Exchange Act means the Securities Exchange Act of 1934, as amended, and any successor thereto. Reference in the Plan 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 successor provisions to such section, rules, regulations or guidance."
"(b) Committee Authority. Subject to the provisions of the Plan and applicable law, the Committee shall have the sole and plenary authority, in addition to other express powers and authorizations conferred on the Committee by the Plan, to (i) designate Participants; (ii) determine the type or types of Awards to be granted to a Participant; (iii) determine the number of shares of Common Stock to be covered by, or with respect to which payments, rights, or other matters are to be calculated in connection with, Awards; (iv) determine the terms and conditions of any Award; (v) determine whether, to what extent, and under what circumstances Awards may be settled in, or exercised for, cash, shares of Common Stock, other securities, other Awards or other property, or canceled, forfeited, or suspended and the method or methods by which Awards may be settled, exercised, canceled, forfeited, or suspended; (vi) determine whether, to what extent, and under what circumstances the delivery of cash, shares of Common Stock, other securities, other Awards or other property and other amounts payable with respect to an Award shall be deferred either automatically or at the election of the Participant or of the Committee; (vii) 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; (viii) establish, amend, suspend, or waive any rules and regulations and appoint such agents as the Committee shall deem appropriate for the proper administration of the Plan; (ix) adopt Sub-Plans; and (x) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan."
"(c) Delegation. Except to the extent prohibited by applicable law or the applicable rules and regulations of any securities exchange or inter-dealer quotation system on which the securities of the Company are listed or traded, the Committee may allocate all or any portion of its responsibilities and powers to any one or more of its members and may delegate all or any part of its responsibilities and powers to any person or persons selected by it. Any such allocation or delegation may be revoked by the Committee at any time. Without limiting the generality of the foregoing, the Committee may delegate to one or more officers of any member of the Company Group, the authority to act on behalf of the Committee with respect to any matter, right, obligation, or election which is the responsibility of, or which is allocated to, the Committee herein, and which may be so delegated as a matter of law, except with respect to grants of Awards to persons (i) who are Non-Employee Directors, or (ii) who are subject to Section 16 of the Exchange Act."
"(ii) 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 (other than in the case of an Incentive Stock Option) 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. Notwithstanding the foregoing, in no event shall the Option Period exceed five (5) years from the Date of Grant in the case of an Incentive Stock Option granted to a Participant who on the Date of Grant owns stock representing more than 10% of the voting power of all classes of stock of any member of the Company Group."
"(a) General. Each grant of Restricted Stock and Restricted Stock Units shall be evidenced by an Award Agreement. Each Restricted Stock and Restricted Stock Unit so granted shall be subject to the conditions set forth in this Section 9, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award Agreement."
"(e) Legends on Restricted Stock. Each certificate, if any, or book entry representing Restricted Stock awarded under the Plan, if any, shall bear a legend or book entry notation substantially in the form of the following, in addition to any other information the Company deems appropriate, until the lapse of all restrictions with respect to such shares of Common Stock:"
"(ii) cancellation of any one or more outstanding Awards and payment to the holders of such Awards that are vested as of such cancellation (including, without limitation, any Awards that would vest as a result of the occurrence of such event but for such cancellation or for which vesting is accelerated by the Committee in connection with such event pursuant to clause (i) above), the value of such Awards, if any, as determined by the Committee (which value, if applicable, may be based upon the price per share of Common Stock received or to be received by other stockholders of the Company in such event), including, without limitation, in the case of an outstanding Option or SAR, a cash payment in an amount equal to the excess, if any, of the Fair Market Value (as of a date specified by the Committee) of the shares of Common Stock subject to such Option or SAR over the aggregate Exercise Price or Strike Price of such Option or SAR (it being understood that, in such event, any Option or SAR having a per share Exercise Price or Strike Price equal to, or in excess of, the Fair Market Value of a share of Common Stock subject thereto may be canceled and terminated without any payment or consideration therefor)."
"(a) Award Agreements. Each Award (other than a Cash-Based Incentive Award) under the Plan shall be evidenced by an Award Agreement, which shall be delivered to the Participant to whom such Award was granted and shall specify the terms and conditions of the Award and any rules applicable thereto, including, without limitation, the effect on such Award of the death, Disability or Termination of a Participant, or of such other events as may be determined by the Committee. For purposes of the Plan, an Award Agreement may be in any such form (written or electronic) as determined by the Committee (including, without limitation, a Board or Committee resolution, an employment agreement, a notice, a certificate or a letter) evidencing the Award. The Committee need not require an Award Agreement to be signed by the Participant or a duly authorized representative of the Company."
"(ii) Notwithstanding the foregoing, the Committee may, in its sole discretion, permit Awards (other than Incentive Stock Options) to be transferred by a Participant, without consideration, subject to such rules as the Committee may adopt consistent with any applicable Award Agreement to preserve the purposes of the Plan, to (A) any person who is a family member of the Participant, as such term is used in the instructions to Form S-8 under the Securities Act or any successor form of registration statement promulgated by the Securities and Exchange Commission (collectively, the Immediate Family Members); (B) a trust solely for the benefit of the Participant and the Participants Immediate Family Members; (C) a partnership or limited liability company whose only partners or stockholders are the Participant and the Participants Immediate Family Members; or (D) a beneficiary to whom donations are eligible to be treated as charitable contributions for federal income tax purposes (each transferee described in clauses (A), (B), (C) and (D) above is hereinafter referred to as a Permitted Transferee); provided, that the Participant gives the Committee advance written notice describing the terms and conditions of the proposed transfer and the Committee notifies the Participant in writing that such a transfer would comply with the requirements of the Plan."
"(i) Termination. Except as otherwise provided in an Award Agreement, unless determined otherwise by the Committee at any point following such event: (i) neither a temporary absence from employment or service due to illness, vacation or leave of absence (including, without limitation, a call to active duty for military service through a Reserve or National Guard unit) nor a transfer from employment or service with one Service Recipient to employment or service with another Service Recipient (or vice-versa) shall be considered a Termination; and (ii) if a Participant undergoes a Termination of employment, but such Participant continues to provide services to the Company Group in a non-employee capacity, such change in status shall not be considered a Termination for purposes of the Plan. Further, unless otherwise determined by the Committee, in the event that any Service Recipient ceases to be a member of the Company Group (by reason of sale, divestiture, spin-off or other similar transaction), unless a Participants employment or service is transferred to another entity that would constitute a Service Recipient immediately following such transaction, such Participant shall be deemed to have suffered a Termination hereunder as of the date of the consummation of such transaction."
"(i) The obligation of the Company to settle Awards in shares of Common Stock or other consideration shall be subject to all applicable laws, rules, and regulations, and to such approvals by governmental agencies as may be required. Notwithstanding any terms or conditions of any Award to the contrary, the Company shall be under no obligation to offer to sell or to sell, and shall be prohibited from offering to sell or selling, any shares of Common Stock pursuant to an Award unless such shares have been properly registered for sale pursuant to the Securities Act with the Securities and Exchange Commission or unless the Company has received an opinion of counsel (if the Company has requested such an opinion), satisfactory to the Company, that such shares may be offered or sold without such registration pursuant to an available exemption therefrom and the terms and conditions of such exemption have been fully complied with. The Company shall be under no obligation to register for sale under the Securities Act any of the shares of Common Stock to be offered or sold under the Plan. The Committee shall have the authority to provide that all shares of Common Stock or other securities of any member of the Company Group issued under the Plan shall be subject to such stop-transfer orders and other restrictions as the Committee may deem advisable under the Plan, the applicable Award Agreement, the Federal securities laws, or the rules, regulations and other requirements of the Securities and Exchange Commission, any securities exchange or inter-dealer quotation system on which the securities of the Company are listed or quoted and any other applicable Federal, state, local or non-U.S. laws, rules, regulations and other requirements, and, without limiting the generality of Section 9 of the Plan, the Committee may cause a legend or legends to be put on certificates representing shares of Common Stock or other securities of any member of the Company Group issued under the Plan to make appropriate reference to such restrictions or may cause such Common Stock or other securities of any member of the Company Group issued under the Plan in book- entry form to be held subject to the Companys instructions or subject to appropriate stop-transfer orders. Notwithstanding any provision in the Plan to the contrary, the Committee reserves the right to, at any time, add any additional terms or provisions to any Award granted under the Plan that the Committee, in its sole discretion, deems necessary or advisable in order that such Award complies with the legal requirements of any governmental entity to whose jurisdiction the Award is subject."
"(ii) The Committee may cancel an Award or any portion thereof if it determines, in its sole discretion, that legal or contractual restrictions and/or blockage and/or other market considerations would make the Companys acquisition of shares of Common Stock from the public markets, the Companys issuance of Common Stock to the Participant, the Participants acquisition of Common Stock from the Company and/or the Participants sale of Common Stock to the public markets, illegal, impracticable or inadvisable. If the Committee determines to cancel all or any portion of an Award in accordance with the foregoing, the Company shall, subject to any limitations or reductions as may be necessary to comply with Section 409A of the Code, (A) pay to the Participant an amount equal to the excess of (I) the aggregate Fair Market Value of the shares of Common Stock subject to such Award or portion thereof canceled (determined as of the applicable exercise date, or the date that the shares would have been vested or issued, as applicable); over (II) the aggregate Exercise Price or Strike Price (in the case of an Option or SAR, respectively) or any amount payable as a condition of issuance of shares of Common Stock (in the case of any other Award). Such amount shall be delivered to the Participant as soon as practicable following the cancellation of such Award or portion thereof, or (B) in the case of Restricted Stock, Restricted Stock Units or Other Equity-Based Awards, provide the Participant with a cash payment or equity subject to deferred vesting and delivery consistent with the vesting restrictions applicable to such Restricted Stock, Restricted Stock Units or Other Equity-Based Awards, or the underlying shares in respect thereof."
"(n) Nonexclusivity of the Plan. Neither the adoption of the Plan by the Board nor the submission of the Plan to the stockholders of the Company for approval shall be construed as creating any limitations on the power of the Board to adopt such other incentive arrangements as it may deem desirable, including, without limitation, the granting of equity-based awards otherwise than under the Plan, and such arrangements may be either applicable generally or only in specific cases."
"(o) No Trust or Fund Created. Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between any member of the Company Group, on the one hand, and a Participant or other Person, on the other hand. No provision of the Plan or any Award shall require the Company, for the purpose of satisfying any obligations under the Plan, to purchase assets or place any assets in a trust or other entity to which contributions are made or otherwise to segregate any assets, nor shall the Company be obligated to maintain separate bank accounts, books, records or other evidence of the existence of a segregated or separately maintained or administered fund for such purposes. Participants shall have no rights under the Plan other than as unsecured general creditors of the Company, except that insofar as they may have become entitled to payment of additional compensation by performance of services, they shall have the same rights as other service providers under general law."
"(ii) Notwithstanding anything in the Plan to the contrary, if a Participant is a specified employee within the meaning of Section 409A(a)(2)(B)(i) of the Code, no payments in respect of any Awards that are deferred compensation subject to Section 409A of the Code and which would otherwise be payable upon the Participants separation from service (as defined in Section 409A of the Code) shall be made to such Participant prior to the date that is six (6) months after the date of such Participants separation from service or, if earlier, the date of the Participants death. Following any applicable six (6) month delay, all such delayed payments will be paid in a single lump sum on the earliest date permitted under Section 409A of the Code that is also a business day."
"(x) Expenses; Titles and Headings. The expenses of administering the Plan shall be borne by the Company Group. The titles and headings of the sections in the Plan are for convenience of reference only, and in the event of any conflict, the text of the Plan, rather than such titles or headings, shall control."
"This Agreement and the shares of restricted stock granted hereby are subject to the provisions of the Autobytel Inc. Amended and Restated 2014 Equity Incentive Plan (Plan). In the event of a conflict between the provisions of the Plan and this Agreement, the Plan shall control. Capitalized terms used but not defined in this Agreement shall have the meanings assigned to such terms in the Plan."
"(f) Agreement Not an Employment Contract. This Agreement is not an employment or service contract, and nothing in this Agreement or in the granting of the Restricted Shares shall be deemed to create in any way whatsoever any obligation on Participants part to continue as an employee of Company or any Subsidiary or on the part of Company or any Subsidiary to continue Participants employment or service as an Employee."
"If you are not currently subject to an effective Change Of Control Severance Agreement with the Company, then the following provisions apply: If any payment or benefit you would receive from the Company or otherwise in connection with a Change in Control or other similar transaction (a 280G Payment) would (i)constitute a parachute payment within the meaning of Section 280G of the Code, and (ii)but for this sentence, be subject to the excise tax imposed by Section4999 of the Code (the Excise Tax), then any such 280G Payment (a Payment) shall be equal to the Reduced Amount. The Reduced Amount shall be either (x)the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (y)the largest portion, up to and including the total, of the Payment, whichever amount (i.e., the amount determined by clause (x)or by clause (y)), after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in your receipt, on an after-tax basis, of the greater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in a Payment is required pursuant to the preceding sentence and the Reduced Amount is determined pursuant to clause (x)of the preceding sentence, the reduction shall occur in the manner (the Reduction Method) that results in the greatest economic benefit for you. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the Pro Rata Reduction Method)."
"Unless you and the Company agree on an alternative accounting firm, the accounting firm engaged by the Company for general tax compliance purposes as of the day prior to the effective date of the change of control transaction triggering the Payment shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the change of control transaction, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The Company shall use commercially reasonable efforts to cause the accounting firm engaged to make the determinations hereunder to provide its calculations, together with detailed supporting documentation, to you and the Company within fifteen (15)calendar days after the date on which your right to a 280G Payment becomes reasonably likely to occur (if requested at that time by you or the Company) or such other time as requested by you or the Company."
"10\. AWARD NOT A SERVICE CONTRACT. Nothing in this Agreement (including, but not limited to, the vesting of your Award or the issuance of the shares subject to your Award), the Plan or any covenant of good faith and fair dealing that may be found implicit in this Agreement or the Plan shall: (i)confer upon you any right to continue in the employ of, or in affiliation with, the Company or an Affiliate; (ii)constitute any promise or commitment by the Company or an Affiliate regarding the fact or nature of future positions, future work assignments, future compensation or any other term or condition of employment or affiliation; (iii)confer any right or benefit under this Agreement or the Plan unless such right or benefit has specifically accrued under the terms of this Agreement or Plan; or (iv)deprive the Company of the right to terminate you at will and without regard to any future vesting opportunity that you may have."
"(a) At the time your Award is made, or at any time thereafter as requested by the Company, you hereby authorize withholding from payroll and any other amounts payable to you, and otherwise agree to make adequate provision for any sums required to satisfy the federal, state, local and foreign tax withholding obligations of the Company or any Affiliate thereof, if any, which arise in connection with your Award (the Withholding Taxes). Such withholding obligations may be satisfied by your relinquishment of your right to receive a portion of the Vested Shares otherwise issuable to you pursuant to the Award; provided, however, that you shall not be authorized to relinquish your right to shares with a fair market value in excess of the amount required to satisfy the minimum amount of tax required to be withheld by law."
"1.Purpose. The J.Jill, Inc. 2017 Omnibus Equity Incentive Plan (the Plan) is intended to help J.Jill, Inc., a Delaware corporation (including any successor thereto, the Company) and its Affiliates (i)attract and retain key personnel by providing them the opportunity to acquire an equity interest in the Company or other incentive compensation measured by reference to the value of Common Stock and (ii)align the interests of key personnel with those of the Companys shareholders. "
"(i)Committee means the Compensation Committee of the Board or subcommittee thereof if required with respect to actions taken to obtain the exception for performance-based compensation under Section 162(m) of the Code or to comply with Rule 16b-3 promulgated under the Exchange Act in respect of Awards or, if no such Compensation Committee or subcommittee thereof exists, or if the Board otherwise takes action hereunder on behalf of the Committee, the Board."
"(b)The Committee may allocate all or any portion of its responsibilities and powers to any person(s) selected by it, except for grants of Awards to persons (i)who are non-employee members of the Board or are otherwise subject to Section16 of the Exchange Act or (ii)who are or may reasonably be expected to be covered employees for purposes of Section 162(m) of the Code. Any such allocation or delegation may be revoked by the Committee at any time."
"(b)Subject to Section12 of the Plan and subsection (e)below, the following limitations apply to the grant of Awards: (i)no more than [] shares of Common Stock may be reserved for issuance and delivered in the aggregate pursuant to Awards granted under the Plan; (ii)no more than [] shares of Common Stock may be subject to grants of Options or SARs under the Plan to any single Participant during any single fiscal year; (iii)no more than [] shares of Common Stock may be delivered pursuant to the exercise of Incentive Stock Options granted under the Plan; (iv)no more than [] shares of Common Stock may be delivered in respect of Performance Compensation Awards denominated in shares of Common Stock granted pursuant to Section11 of the Plan to any Participant for a single Performance Period (or with respect to each single fiscal year if a Performance Period extends beyond a single fiscal year), or if such Performance Compensation Award is paid in cash, other securities, other Awards or other property, no more than the Fair Market Value of [] shares of Common Stock on the last day of the Performance Period to which such Award relates; (v)the maximum amount that can be paid to any individual Participant for a single fiscal year during a Performance Period (or with respect to each single year in the event a Performance Period extends beyond a single fiscal year) pursuant to a Performance Compensation Award denominated in cash described in Section 11(a) of the Plan shall be $[]; and (vi)the maximum amount (based on the Fair Market Value of shares of Common Stock on the date of grant as determined in accordance with applicable financial accounting rules) of Awards that may be granted in any single fiscal year to any non-employee member of the Board shall be $[]; provided, that the foregoing limitation shall not apply in respect of any Restricted Stock Units or Deferred Stock Units issued to a non-employee director in lieu of payment of cash director compensation or board or committee fees or in respect of any one-time initial equity grant upon a nonemployee directors appointment to the Board."
"(c)Vesting, Exercise and Expiration. The Committee shall determine the manner and timing of vesting, exercise and expiration of Options. The period between the date of grant and the scheduled expiration date of the Option (Option Period) shall not exceed ten years, unless the Option Period (other than in the case of an Incentive Stock Option) would expire at a time when trading in the shares of Common Stock is prohibited by the Companys insider trading policy or a Company-imposed blackout period, in which case the Option Period shall be automatically extended until the 30th day following the expiration of such prohibition (so long as such extension shall not violate Section 409A of the Code). The Committee may accelerate the vesting and/or exercisability of any Option, which acceleration shall not affect any other terms and conditions of such Option."
"Company or its designee (including a third-party administrator) in accordance with the terms of the Option and the Award Agreement accompanied by payment of the Exercise Price and such applicable taxes. The Exercise Price and delivery of all applicable required withholding taxes shall be payable (i)in cash or by check, cash equivalent and/or shares of Common Stock valued at the Fair Market Value at the time the Option is exercised (including, pursuant to procedures approved by the Committee, by means of attestation of ownership of a sufficient number of shares of Common Stock in lieu of actual delivery of such shares to the Company) (or any combination of the foregoing); provided, that such shares of Common Stock are not subject to any pledge or other security interest (or any combination of the foregoing); or (ii)by such other method as elected by the Participant and that the Committee may permit, in its sole discretion, including without limitation: (A)in the form of other property having a Fair Market Value on the date of exercise equal to the Exercise Price and all applicable required withholding taxes; (B)if there is a public market for the shares of Common Stock at such time, by means of a broker-assisted cashless exercise pursuant to which the Company or its designee (including third-party administrators) is delivered a copy of irrevocable instructions to a stockbroker to sell the shares of Common Stock otherwise deliverable upon the exercise of the Option and to deliver promptly to the Company an amount equal to the Exercise Price and all applicable required withholding taxes against delivery of the shares of Common Stock to settle the applicable trade; or (C)by means of a net exercise procedure effected by withholding the minimum number of shares of Common Stock otherwise deliverable in respect of an Option that are needed to pay for the Exercise Price and all applicable required withholding taxes. Notwithstanding the foregoing, unless otherwise determined by the Committee or as set forth in an Award Agreement, if on the last day of the Option Period, the Fair Market Value of the Common Stock exceeds the Exercise Price, the Participant has not exercised the Option, and the Option has not previously expired, such Option shall be deemed exercised by the Participant on such last day by means of a net exercise procedure described above. In all events of cashless or net exercise, any fractional shares of Common Stock shall be settled in cash."
"(f)Compliance with Laws. Notwithstanding the foregoing, in no event shall the Participant be permitted to exercise an Option in a manner that the Committee determines would violate the Sarbanes-Oxley Act of 2002, or any other applicable law or the applicable rules and regulations of the Securities and Exchange Commission or the applicable rules and regulations of any securities exchange or inter-dealer quotation service on which the Common Stock of the Company is listed or quoted."
"(d)Method of Exercise. SARs may be exercised by delivery of written or electronic notice of exercise to the Company or its designee (including a third-party administrator) in accordance with the terms of the Award, specifying the number of SARs to be exercised and the date on which such SARs were awarded. Notwithstanding the foregoing, if on the last day of the Option Period (or in the case of a SAR independent of an Option, the SAR Period), the Fair Market Value exceeds the Strike Price, the Participant has not exercised the SAR or the corresponding Option (if applicable), and neither the SAR nor the corresponding Option (if applicable) has previously expired, such SAR shall be deemed to have been exercised by the Participant on such last day and the Company shall make the appropriate payment therefor."
"(b)Stock Certificates; Escrow or Similar Arrangement. Upon the grant of Restricted Stock, the Committee shall cause share(s) of Common Stock to be registered in the name of the Participant and held in book-entry form subject to the Companys directions. The Committee may also cause a stock certificate registered in the name of the Participant to be issued. In such event, the Committee may provide that such certificates shall be held by the Company or in escrow rather than delivered to the Participant pending vesting and release of restrictions, in which case the Committee may require the Participant to execute and deliver to the Company or its designee (including third-party administrators) (i)an escrow agreement satisfactory to the Committee, if applicable, and (ii)the appropriate stock power (endorsed in blank) with respect to the Restricted Stock. If the Participant shall fail to execute and deliver the escrow agreement and blank stock power within the amount of time specified by the Committee, the Award shall be null and void. Subject to the restrictions set forth in this Section9 and the Award Agreement, the Participant shall have the rights and privileges of a shareholder as to such Restricted Stock, including without limitation the right to vote such Restricted Stock."
"(ii)Unless otherwise provided by the Committee in an Award Agreement, upon the expiration of the Restricted Period and the attainment of any other vesting criteria established by the Committee, with respect to any outstanding Restricted Stock Units, the Company shall deliver to the Participant, or such Participants beneficiary (via book entry notation or, if applicable, in stock certificate form), one share of Common Stock (or other securities or other property, as applicable) for each such outstanding Restricted Stock Unit that has not then been forfeited and with respect to which the Restricted Period has expired and any other such vesting criteria are attained (Released Unit); provided, however, that the Committee may elect to (A)pay cash or part cash and part Common Stock in lieu of delivering only shares of Common Stock in respect of such Released Units or (B)defer the delivery of Common Stock (or cash or part Common Stock and part cash, as the case may be) beyond the expiration of the Restricted Period if such extension would not cause adverse tax consequences under Section 409A of the Code. If a cash payment is made in lieu of delivering shares of Common Stock, the amount of such payment shall be equal to the Fair Market Value of the Common Stock as of the date on which the shares of Common Stock would have otherwise been delivered to the Participant in respect of such Restricted Stock Units."
"(iv)To the extent provided in an Award Agreement, the holder of outstanding Restricted Stock Units or Deferred Stock Units shall be entitled to be credited with dividend equivalent payments (upon the payment by the Company of dividends on shares of Common Stock) either in cash or, if determined by the Committee, in shares of Common Stock having a Fair Market Value equal to the amount of such dividends as of the date of payment (or a combination of cash and shares of Common Stock) (and interest may, if determined by the Committee, be credited on the amount of cash dividend equivalents at a rate and subject to such terms as determined by the Committee), which accumulated dividend equivalents (and interest thereon, if applicable) shall be payable at the same time as the underlying Restricted Stock Units or Deferred Stock Units, as applicable, are settled (in the case of Restricted Stock Units, following the release of restrictions on such Restricted Stock Units), and if such Restricted Stock Units are forfeited, the holder thereof shall have no right to such dividend equivalent payments."
"(i)Each Award shall be exercisable only by the Participant 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 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 or an Affiliate; provided, that the designation of a beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance."
"(iii)The terms of any Award transferred in accordance with the immediately preceding paragraph shall apply to the Permitted Transferee, and any reference in the Plan, or in any applicable Award Agreement, to the Participant shall be deemed to refer to the Permitted Transferee, except that (A)Permitted Transferees shall not be entitled to transfer any Award, other than by will or the laws of descent and distribution; (B)Permitted Transferees shall not be entitled to exercise any transferred Option unless there shall be in effect a registration statement on an appropriate form covering the shares of Common Stock to be acquired pursuant to the exercise of such Option if the Committee determines, consistent with any applicable Award"
"Agreement, that such a registration statement is necessary or appropriate; (C)the Committee or the Company shall not be required to provide any notice to a Permitted Transferee, whether or not such notice is or would otherwise have been required to be given to the Participant under the Plan or otherwise; and (D)the consequences of the termination of the Participants employment by, or services to, the Company or an Affiliate under the terms of the Plan and the applicable Award Agreement shall continue to be applied with respect to the transferred Award, including, without limitation, that an Option shall be exercisable by the Permitted Transferee only to the extent, and for the periods, specified in the Plan and the applicable Award Agreement."
"(f)International Participants. With respect to Participants who reside or work outside of the United States and who are not (and who are not expected to be) covered employees within the meaning of Section 162(m) of the Code, the Committee may amend the terms of the Plan or appendices thereto, or outstanding Awards, with respect to such Participants, in order to conform such terms with or accommodate the requirements of local laws, procedures or practices or to obtain more favorable tax or other treatment for the Participant, the Company or its Affiliates. Without limiting the generality of this subsection, the Committee is specifically authorized to adopt rules, procedures and sub-plans with provisions that limit or modify rights on death, disability, retirement or other terminations of employment, available methods of exercise or settlement of an Award, payment of income, social insurance contributions or payroll taxes, withholding procedures and handling of any stock certificates or other indicia of ownership that vary with local requirements. The Committee may also adopt rules, procedures or sub-plans applicable to particular Affiliates or locations."
"(n)No Trust or Fund Created. Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any Affiliate, on the one hand, and the Participant or other person or entity, on the other hand. No provision of the Plan or any Award shall require the Company, for the purpose of satisfying any obligations under the Plan, to purchase assets or place any assets in a trust or other entity to which contributions are made or to otherwise segregate any assets, nor shall the Company maintain separate bank accounts, books, records or other evidence of the existence of a segregated or separately maintained or administered fund for such purposes. Participants shall have no rights under the Plan other than as unsecured general creditors of the Company."
"(o)Reliance on Reports. Each member of the Committee and each member of the Board (and each such members respective designees) shall be fully justified in acting or failing to act, as the case may be, and shall not be liable for having so acted or failed to act in good faith, in reliance upon any report made by the independent registered public accounting firm of the Company and its Affiliates and/or any other information furnished in connection with the Plan by any agent of the Company or the Committee or the Board, other than such member or designee."
"(q)Purchase for Investment. Whether or not the Options and shares covered by the Plan have been registered under the Securities Act, each person exercising an Option under the Plan or acquiring shares under the Plan may be required by the Company to give a representation in writing that such person is acquiring such shares for investment and not with a view to, or for sale in connection with, the distribution of any part thereof. The Company will endorse any necessary legend referring to the foregoing restriction upon the certificate or certificates representing any shares issued or transferred to the Participant upon the exercise of any Option granted under the Plan."
"such Participants separation from service within the meaning of Section 409A of the Code or, if earlier, the Participants date of death. All such delayed payments or deliveries will be paid or delivered (without interest) in a single lump sum on the earliest date permitted under Section 409A of the Code that is also a business day."
"Consultant means any natural person that provides bona fide services to the Company and its Subsidiaries or Affiliates, and such services are not in connection with the offer or sale of securities in a capital-raising transaction and do not directly or indirectly promote or maintain a market for the Companys securities."
"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, Subsidiary or Affiliate of the Company) that will be used to establish Performance Goals are, without limitation, the following: bookings, 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, acquisitions or strategic transactions, 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, number of customers, retention rate, and renewal rate, 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 occurs 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. Performance Cycle means one or more periods of time, which may be of varying and overlapping durations, as the Administrator may select, over which the attainment of one or more Performance Criteria will be measured for the purpose of determining a grantees right to and the payment of a Restricted Stock Award, Restricted Stock Units, Performance Share Award or Cash-Based Award, the vesting and/or payment of which is subject to the attainment of one or more Performance Goals."
"(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, without limitation, reasonable attorneys fees) arising or resulting therefrom to the fullest extent permitted by law and/or under the Companys articles or bylaws or any directors and officers liability insurance coverage which may be in effect from time to time and/or any indemnification agreement between such individual and the Company."
"(a)Stock Issuable. The maximum number of shares of Stock reserved and available for issuance under the Plan shall be 11,000,000 shares (the Initial Limit), subject to adjustment as provided in this Section3, plus, on February1, 2018 and on each February 1st thereafter for the term of the Plan pursuant to Section21 of the Plan, the number of shares of Stock reserved and available for issuance under the Plan shall be cumulatively increased by 5percent of the number of shares of ClassA and ClassB common stock issued and outstanding as of the immediately preceding January31 or such lesser number of shares as approved by the Administrator (the Annual Increase). Subject to such overall limitation, 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 February1, 2018 and on each February1 thereafter by the lesser of (i)the Annual Increase for such year or (ii) 10,000,000 shares of Stock, subject in all cases to adjustment as provided in Section 3(c). In addition, the shares of Stock underlying any Awards under the Plan or the shares of ClassB common stock of the Company underlying the Companys 2009 Stock Plan, as amended and restated, 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 (other than by exercise) shall be added back to the shares of Stock available for issuance under the Plan (provided, that any such shares of ClassB common stock of the Company shall first be converted to shares of ClassA common stock of the Company). 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, 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 10,000,000 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."
"securities of the Company or any successor entity (or a parent or subsidiary thereof), the Administrator shall make an appropriate or proportionate adjustment in (i)the maximum number of shares reserved for issuance under the Plan, including the maximum number of shares that may be issued in the form of Incentive Stock Options, (ii)the number of Stock Options or Stock Appreciation Rights that can be granted to any one individual grantee and the maximum number of shares that may be granted under a Performance-Based Award, (iii)the number and kind of shares or other securities subject to any then outstanding Awards under the Plan, (iv)the repurchase price, if any, per share subject to each outstanding Restricted Stock Award, and (v)the exercise price for each share subject to any then outstanding Stock Options and Stock Appreciation Rights under the Plan, without changing the aggregate exercise price (i.e., the exercise price multiplied by the number of Stock Options and Stock Appreciation Rights) as to which such Stock Options and Stock Appreciation Rights remain exercisable. The Administrator shall also make equitable or proportionate adjustments in the number of shares subject to outstanding Awards and the exercise price and the terms of outstanding Awards to take into consideration cash dividends paid other than in the ordinary course or any other extraordinary corporate event. The adjustment by the Administrator shall be final, binding and conclusive. No fractional shares of Stock shall be issued under the Plan resulting from any such adjustment, but the Administrator in its discretion may make a cash payment in lieu of fractional shares."
"Stock Options granted under the Plan may be either Incentive Stock Options or Non-Qualified Stock Options. Incentive Stock Options may be granted only to employees of the Company or any Subsidiary that is a subsidiary corporation within the meaning of Section424(f) of the Code. To the extent that any Option does not qualify as an Incentive Stock Option, it shall be deemed a Non-Qualified Stock Option."
"(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."
(a)Award of Stock Appreciation Rights. The Administrator may grant Stock Appreciation Rights under the Plan. A Stock Appreciation Right is an Award entitling the recipient to receive shares of Stock having a value equal to the excess of the Fair Market Value of a share of Stock on the date of exercise over the exercise price of the Stock Appreciation Right multiplied by the number of shares of Stock with respect to which the Stock Appreciation Right shall have been exercised.
(a)Dividend Equivalent Rights. The Administrator may grant Dividend Equivalent Rights under the Plan. A Dividend Equivalent Right is an Award entitling the grantee to receive credits based on cash dividends that would have been paid on the shares of Stock specified in the Dividend Equivalent Right (or other Award to which it relates) if such shares had been issued to
"The Board may, at any time, amend or discontinue the Plan and the Administrator may, at any time, amend or cancel any outstanding Award for the purpose of satisfying changes in law or for any other lawful purpose, but no such action shall adversely affect rights under any outstanding Award without the holders consent. The Administrator is specifically authorized to exercise its discretion to reduce the exercise price of outstanding Stock Options or Stock Appreciation Rights or effect the repricing of such Awards through cancellation and re-grants without stockholder approval. To the extent required under the rules of 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(c) or 3(d)."
"This Plan shall become effective upon the date immediately preceding the date of the Companys Initial Public Offering, following stockholder approval in accordance with applicable state law, the Companys bylaws and certificate of incorporation, and applicable stock exchange rules or pursuant to written consent. No grants of Stock Options and other Awards may be made hereunder after the tenth anniversary of the Effective Date and no grants of Incentive Stock Options may be made hereunder after the tenth anniversary of the date the Plan is approved by the Board."
"(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."
"(b)Other Termination. If the Optionee ceases to be a Director or an employee for any reason other than the Optionees death, 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 or an employee, for a period of 6 months from the date the Optionee ceased to be a Director or an employee 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, unless as otherwise determined by the Administrator."
"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. "
"Pursuant to the Okta, Inc. 2017 Equity Incentive Plan as amended through the date hereof (the Plan), Okta, Inc. (the Company) hereby grants to the Optionee named above an option (the Stock Option) to purchase on or prior to the Expiration Date specified above all or part of the number of shares of ClassA Common Stock, par value $0.0001 per share (the Stock) of the Company specified above at the Option Exercise Price per Share specified above subject to the terms and conditions set forth herein and in the Plan. This Stock Option is not intended to be an incentive stock option under Section422 of the Internal Revenue Code of 1986, as amended."
"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."
"(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."
"6.Responsibility for Taxes. The Optionee acknowledges that, regardless of any action taken by the Company or the subsidiary employing the Optionee (the Employer), the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to the Optionees participation in the Plan and legally applicable to the Optionee (Tax-Related Items), is and remains the Optionees responsibility and may exceed the amount actually withheld by the Company or the Employer. The Optionee further acknowledges that the Company and/or the Employer (1)make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Stock Options, including, but not limited to, the grant, vesting or settlement of the Stock Options, the subsequent sale of shares of Stock acquired pursuant to such settlement and the receipt of any dividends; and (2)do not commit to and are under no obligation to structure the terms of the grant or any aspect of the Stock Option to reduce or eliminate the Optionees liability for Tax-Related Items or achieve any particular tax result. Further, if the Optionee is "
"Finally, the Optionee agrees to pay to the Company or the Employer, any amount of Tax-Related Items that the Company or the Employer may be required to withhold or account for as a result of the Optionees participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the shares or the proceeds of the sale of shares of Stock, if the Optionee fails to comply with the Optionees obligations in connection with the Tax-Related Items."
"9.No Advice Regarding Grant. The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding the Optionees participation in the Plan, or the Optionees acquisition or sale of the underlying shares of Stock. The Optionee understands and agrees that the Optionee should consult with his or her own personal tax, legal and financial advisors regarding his or her participation in the Plan before taking any action related to the Plan. "
"13.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. "
will not be registered with the Argentine Securities Commission (Comisin Nacional de Valores). The offer is private and not subject to the supervision of any Argentine governmental authority. Neither this nor any other offering material related to the Stock Options nor the underlying shares may be utilized in connection with any general offering to the public in Argentina. Argentine residents who acquire Stock Options under the Plan do so according to the terms of a private offering made from outside Argentina.
"Australia Offer Document. The offer of Stock Options is intended to comply with the provisions of the Corporations Act 2001, Australian Securities& Investments Commission (ASIC) Regulatory Guide 49 and ASIC ClassOrder CO 14/1000. Additional details are set forth in the Offer Document for the Offer of Stock Options to Australian Resident Employees, which will be provided to the Optionee with the Agreement."
Taxation of Option.The option must be accepted in writing either (i)within 60 days of the offer (for tax at offer) or (ii)after 60 days of the offer (for tax at exercise). The Optionee will receive a separate offer letter and undertaking form in addition to the Agreement. The Optionee should refer to the offer letter for a more detailed description of the tax implications of choosing to accept the option. The Optionee should consult with his or her personal tax advisor regarding completion of the additional forms.
" |  |  | The Optionee authorizes the Company and/or the Employer to recover an amount sufficient to cover this liability by any method set forth in the Agreement and/or the Joint Election, including (but not limited to) deductions from the Optionees salary or other payments due to the Optionee or the sale of sufficient shares acquired pursuant to the options; and ---|---|---|--- "
"Pursuant to the Okta, Inc. 2017 Equity Incentive Plan (the Plan) as amended through the date hereof, Okta, Inc. (the Company) hereby grants a Restricted Stock Award (an Award) to the Grantee named above. Upon acceptance of this Award, the Grantee shall receive the number of shares of ClassA Common Stock, par value $0.0001 per share (the Stock) of the Company specified above, subject to the restrictions and conditions set forth herein and in the Plan. The Company acknowledges the receipt from the Grantee of consideration with respect to the par value of the Stock in the form of cash, past or future services rendered to the Company by the Grantee or such other form of consideration as is acceptable to the Administrator."
"8.Election Under Section 83(b). The Grantee and the Company hereby agree that the Grantee may, within 30 days following the Grant Date of this Award, file with the Internal Revenue Service and the Company an election under Section 83(b) of the Internal Revenue Code. In the event the Grantee makes such an election, he or she agrees to provide a copy of the election to the Company. The Grantee acknowledges that he or she is responsible for obtaining the advice of his or her tax advisors with regard to the Section 83(b) election and that he or she is relying solely on such advisors and not on any statements or representations of the Company or any of its agents with regard to such election. "
"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. "
"Pursuant to the Okta, Inc. 2017 Equity Incentive Plan as amended through the date hereof (the Plan), Okta, Inc. (the Company) hereby grants an award of the number of Restricted Stock Units listed above (an Award) to the Grantee named above. Each Restricted Stock Unit shall relate to one share of ClassA Common Stock, par value $0.0001 per share (the Stock) of the Company."
"5.Incorporation of Plan. Notwithstanding anything herein to the contrary, this Agreement shall be subject to and governed by all the terms and conditions of the Plan, including the powers of the Administrator set forth in Section 2(b) of the Plan. Capitalized terms in this Agreement shall have the meaning specified in the Plan, unless a different meaning is specified herein. "
"10.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. "
"6.Tax Withholding. The Grantee acknowledges that, regardless of any action taken by the Company or the subsidiary employing the Grantee (the Employer), the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to the Grantees participation in the Plan and legally applicable to the Grantee (Tax-Related Items), is and remains the Grantees responsibility and may exceed the amount actually withheld by the Company or the Employer. The Grantee further acknowledges that the Company and/or the Employer (1)make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Restricted Stock Units, including, but not limited to, the grant, vesting or settlement of the Restricted Stock Units, the subsequent sale of shares of Stock acquired pursuant to such settlement and the receipt of any dividends and/or any Dividend Equivalent Rights; and (2)do not commit to and are under no obligation to structure the terms of the grant or any aspect of the Restricted Stock Unit to reduce or eliminate the Grantees liability for Tax-Related Items or achieve any particular tax result. Further, if the Grantee is subject to Tax-Related Items in more than one jurisdiction, the Grantee acknowledges that the Company and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction. "
"If the Grantee is a citizen or resident (or is considered as such for local tax purposes) of a country other than the country in which the Grantee is currently residing and/or working, or if the Grantee transfers to another country after the grant of the option, the notifications contained herein may not be applicable to the Grantee."
"Foreign Asset/Account Reporting Information. Foreign property, including shares of Stock and other rights to receive Stock (e.g., Restricted Stock Units) of a non-Canadian company held by a Canadian resident employee generally must be reported annually on a Form T1135 (Foreign Income Verification Statement) if the total cost of the employees foreign property exceeds C$100,000 at any time during the year. Thus, Restricted Stock Units must be reported  generally at nil cost  if the C$100,000 cost threshold is exceeded because of other foreign property held by the employee. When shares are acquired, their cost generally is the adjusted cost base (ACB) of the shares. The ACB ordinarily would equal the fair market value of the shares at the time of acquisition, but if the employee owns other shares of the same company, this ACB may have to be averaged with the ACB of the other shares."
"As a condition of participation in the Okta, Inc. 2017 Equity Incentive Plan (the Plan) and the Restricted Stock Units that have been granted to the Grantee by Okta, Inc. (the Company), the Grantee is required to enter into a joint election to transfer to Grantee any liability for employer national insurance contributions (the Employer NICs) that may arise in connection with the grant of the Restricted Stock Units or in connection with future Restricted Stock Units granted to Grantee by the Company under the Plan (the Joint Election)."
" |  |  | the Grantee authorizes the Company and/or the Employer to recover an amount sufficient to cover this liability by any method set forth in the Agreement and/or the Joint Election, including (but not limited to) deductions from the Grantees salary or other payments due to the Grantee or the sale of sufficient shares of Stock acquired pursuant to the Restricted Stock Units; 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."
3.3 | The Company agrees to procure the remittance by the Employer of the Employers Liability to HM Revenue& Customs on behalf of the Employee within 14 days after the end of the UK tax month during which the Chargeable Event occurs (or within 17 days after the end of the UK tax month during which the Chargeable Event occurs if payments are made electronically). ---|--- * * *
"If the Grantee experiences a Termination of Service for Cause, any Restricted Stock granted to the Grantee shall be forfeited at the time of such termination (or, if earlier, at the time that the Company, Company Affiliate, or Grantee, as applicable, provides written notice of its (or his or her) intention to effect a Termination of Service), and the Committee may require that such Grantee disgorge any profit, gain or other benefit received in respect of the lapse of restrictions on any prior grant of Restricted Stock for a period of up to twelve months prior to the Grantees Termination of Service for Cause. | ---|--- (c)"
"16. Clawback Policy. Notwithstanding any other provision of this Agreement, this Award will be subject to any compensation recovery or clawback policy the Company adopts, including any policy required to comply with applicable law or listing standards, as such policy may be amended from time to time in the Companys sole discretion. "
"1\. Award of Restricted Stock. Subject to all terms and conditions of the Plan and this Agreement, the Company has awarded to the Employee on the date indicated on the Award Summary the number of shares of Restricted Stock (individually, the RS) as shown on the Award Summary. Notwithstanding anything herein to the contrary, only active employees and those employees on Short Term Disability Leave, Social Service Leave, Family Medical Leave or Paid Uniform Services Leave (pursuant to the Companys Human Resources Policies or similar policies of the Companys subsidiaries or affiliates) on the effective date of the award as shown on the Award Summary shall be eligible to receive the award."
"2\. Delivery of Shares. As soon as practicable on or after the date of this Agreement, in connection with the RSs, the Company shall deliver to the Employee a number of shares of Common Stock equal to the number of RSs subject to this Agreement in such manner as the Company shall determine. Any certificate or book entry credit issued or entered in respect of such RSs shall be registered in the Employees name and shall bear an appropriate legend referring to the terms, conditions and restrictions applicable to the RSs, substantially in the following form:"
"Upon the occurrence of an event constituting a Change in Control, notwithstanding anything to the contrary in Section22(b) of the Plan, the RSs outstanding on the date of such Change in Control, and any dividend equivalents with respect thereto, shall remain outstanding and thereafter the vesting of such RSs, and any dividend equivalents with respect thereto, shall be subject to Employees continued employment with the Company or a subsidiary or an affiliate through the applicable Vesting Date as provided in this Section3; provided that, in the event of the Employees termination of employment following such Change in Control and prior to the applicable Vesting Date, the RSs, and any dividend equivalents with respect thereto, shall vest and be paid to the extent provided in Section9\. Upon payment pursuant to the terms of the Plan, such awards shall be cancelled."
"(iv) involuntarily ceases to be an employee of the Employer by reason of death or Disability (including cessation of active employment due to commencement of long-term disability under the Employers long-term disability plan or under a disability policy of any subsidiary or Affiliate, as applicable), (1)the RSs covered by this Agreement, and any dividend"
"(v) voluntarily ceases to be an employee of the Employer by reason of retirement (for purposes of this Agreement only, retirement for U.S. employees shall mean termination of employment at or above age 55 with 10 years of service or age 60 with 5 years of service with the Employer), the number of RSs scheduled to vest on the Vesting Date immediately following such termination, and any dividend equivalents with respect thereto, shall be prorated based on a fraction, the numerator of which is the number of full months elapsed since the most recent Vesting Date immediately preceding such date of termination (or since January 1, 2017, in the case of a termination of employment prior to a Vesting Date) and the denominator of which is 12, and any remaining RSs shall be forfeited. If such termination of employment occurs prior to a Change in Control, then such prorated number of RSs, and any dividend equivalents with respect thereto, shall immediately vest. If such termination of employment occurs following a Change in Control, such prorated number of RSs, and any dividend equivalents with respect thereto, shall immediately vest 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. In each case, whether such termination of employment occurs prior to or following a Change of Control, 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;"
"(j) in consideration of the award of the RSs, no claim or entitlement to compensation or damages shall arise from forfeiture of the RSs, including, but not limited to, forfeiture resulting from termination of the Employees employment with the Employer (for any reason whatsoever and whether or not in breach of local labor laws) and the Employee irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, the Employee shall be deemed irrevocably to have waived the Employees entitlement to pursue such claim; and"
"13\. No Advice Regarding Award. Neither the Company nor the Employer is providing any tax, legal or financial advice, nor is the Company or Employer making any recommendations regarding the Employees participation in the Plan, or his or her acquisition or sale of the underlying shares of Common Stock. The Employee is hereby advised to consult with his or her own personal tax, legal and financial advisors regarding his or her participation in the Plan before taking any action related to the Plan."
"(d) Failure to comply with the provision of subparagraphs (a), (b)or (c)of this Section18 prior to, or during the six months after, any payment or delivery shall cause such payment or delivery to be rescinded. The Company shall notify the Employee in writing of any such rescission within two years after such payment or delivery. Within ten days after receiving such a notice from the Company, the Employee shall pay to the Company the amount of any payment received as a result of the rescinded payment or delivery pursuant to an award. Such payment to the Company by the Employee shall be made either in cash or by returning to the Company the number of shares of Common Stock that the Employee received in connection with the rescinded payment or delivery."
"22\. Interpretation of This Agreement. The Committee or its authorized delegate, as applicable, shall have the authority to interpret the Plan and this Agreement and to take whatever administrative actions, including correction of administrative errors in the awards subject to this Agreement and in this Agreement, as the Committee or its authorized delegate, as applicable, in its sole good faith judgment shall determine to be advisable. All decisions, interpretations and administrative actions made by the Committee or its authorized delegate, as applicable, hereunder or under the Plan shall be binding and conclusive on the Company and the Employee. In the event there is inconsistency between the provisions of this Agreement and of the Plan, the provisions of the Plan shall govern."
"Notwithstanding any provision of this Agreement to the contrary, in light of the uncertainty with respect to the proper application of Section409A, the Company reserves the right to make amendments to this Agreement as the Company deems necessary or desirable to avoid the imposition of taxes or penalties under Section409A. In any case, the Employee shall be solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on the Employee or for the Employees account in connection with this Agreement (including any taxes and penalties under Section409A), and neither the Company nor any of its Affiliates shall have any obligation to indemnify or otherwise hold the Employee harmless from any or all of such taxes or penalties."
"26\. Election Under Section83(b) of the Code. The Employee may make and file with the Internal Revenue Service an election under Section83(b) of the Code within 30 days following the date of this Agreement, electing to include in the Employees gross income as of the date of this Agreement the Fair Market Value of the RSs as of such date. The Employee shall promptly provide a copy of such election to the Company."
"Performance Cycle means one or more periods of time, which may be of varying and overlapping durations, as the Administrator may select, over which the attainment of one or more Performance Criteria will be measured for the purpose of determining a grantees right to and the payment of a Restricted Stock Award, Restricted Stock Units, Performance Share Award or Cash-Based Award, the vesting and/or payment of which is subject to the attainment of one or more Performance Goals. Each such period shall not be less than 12 months."
Stock Appreciation Right means an Award entitling the recipient to receive shares of Stock having a value equal to the excess of the Fair Market Value of the Stock on the date of exercise over the exercise price of the Stock Appreciation Right multiplied by the number of shares of Stock with respect to which the Stock Appreciation Right shall have been exercised.
"Stock Options granted under the Plan may be either Incentive Stock Options or Non-Qualified Stock Options. Incentive Stock Options may be granted only to employees of the Company or any Subsidiary that is a subsidiary corporation within the meaning of Section424(f)of the Code. To the extent that any Option does not qualify as an Incentive Stock Option, it shall be deemed a Non-Qualified Stock Option."
"(c) Option Term. The term of each Stock Option shall be fixed by the Administrator, but no Stock Option shall be exercisable more than ten years after the date the Stock Option is granted. In the case of an Incentive Stock Option that is granted to a Ten Percent Owner, the term of such Stock Option shall be no more than five years from the date of grant."
"(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 Certificate. Except as may otherwise be provided by the Administrator either in the Award Certificate 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 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 grantee or rights of the grantee as a stockholder. Following such deemed reacquisition of Restricted Shares that are represented by physical certificates, a grantee shall surrender such certificates to the Company upon request without consideration."
"(d) Vesting of Restricted Shares. The Administrator at the time of grant shall specify the date or dates and/or the attainment of pre-established performance goals, objectives and other conditions on which the non-transferability of the Restricted Shares and the Companys right of repurchase or forfeiture shall lapse. Subsequent to such date or dates and/or the attainment of such pre- established performance goals, objectives and other conditions, the shares on which all restrictions have lapsed shall no longer be Restricted Shares and shall be deemed vested."
"(b) Grant of Performance-Based Awards. With respect to each Performance-Based Award granted to a Covered Employee, the Administrator shall select, within the first 90 days of a Performance Cycle (or, if shorter, within the maximum period allowed under Section162(m)of the Code) the Performance Criteria for such grant, and the Performance Goals with respect to each Performance Criterion (including a threshold level of performance below which no amount will become payable with respect to such Award). Each Performance-Based Award will specify the amount payable, or the formula for determining the amount payable, upon achievement of the various applicable performance targets. The Performance Criteria established by the Administrator may be (but need not be) different for each Performance Cycle and different"
"(a) Dividend Equivalent Rights. The Administrator may grant Dividend Equivalent Rights under the Plan. A Dividend Equivalent Right is an Award entitling the grantee to receive credits based on cash dividends that would have been paid on the shares of Stock specified in the Dividend Equivalent Right (or other Award to which it relates) if such shares had been issued to the grantee. A Dividend Equivalent Right may be granted hereunder to any grantee as a component of an award of Restricted Stock Units or Performance Share Award or as a freestanding award. The terms and conditions of Dividend Equivalent Rights shall be specified in the Award Certificate. Dividend equivalents credited to the holder of a Dividend Equivalent Right may be paid currently or may be deemed to be reinvested in additional shares of Stock, which may thereafter accrue additional equivalents. Any such reinvestment shall be at Fair Market Value on the date of reinvestment or such other price as may then apply under a dividend reinvestment plan sponsored by the Company, if any. Dividend Equivalent Rights may be settled in cash or shares of Stock or a combination thereof, in a single installment or installments. A Dividend Equivalent Right granted as a component of an Award of Restricted Stock Units or Performance Share Award shall provide that such Dividend Equivalent Right shall be settled only upon settlement or payment of, or lapse of restrictions on, such other Award, and that such Dividend Equivalent Right shall expire or be forfeited or annulled under the same conditions as such other Award."
"(c) Family Member. For purposes of Section14(b), family member shall mean a grantees child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, any person sharing the grantees household (other than a tenant of the grantee), a trust in which these persons (or the grantee) have more than 50 percent of the beneficial interest, a foundation in which these persons (or the grantee) control the management of assets, and any other entity in which these persons (or the grantee) own more than 50 percent of the voting interests."
"(d) Designation of Beneficiary. To the extent permitted by the Company, each grantee to whom an Award has been made under the Plan may designate a beneficiary or beneficiaries to exercise any Award or receive any payment under any Award payable on or after the grantees death. Any such designation shall be on a form provided for that purpose by the Administrator and shall not be effective until received by the Administrator. If no beneficiary has been designated by a deceased grantee, or if the designated beneficiaries have predeceased the grantee, the beneficiary shall be the grantees estate."
"This Plan shall become effective upon the date immediately preceding the date of the Companys Initial Public Offering following stockholder approval in accordance with applicable state law, the Companys bylaws and articles of incorporation, and applicable stock exchange rulesor pursuant to written consent. No grants of Stock Options and other Awards may be made hereunder after the tenth anniversary of the Effective Date and no grants of Incentive Stock Options may be made hereunder after the tenth anniversary of the date the Plan is approved by the Board."
"Pursuant to the Braeburn Pharmaceuticals,Inc. 2017 Stock Option and Incentive Plan as amended through the date hereof (the Plan), Braeburn Pharmaceuticals,Inc. (the Company) hereby grants to the Optionee named above an option (the Stock Option) to purchase on or prior to the Expiration Date specified above all or part of the number of shares of Common Stock, par value $0.0001 per share (the Stock), of the Company specified above at the Option Exercise Price per Share specified above subject to the terms and conditions set forth herein and in the Plan."
"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; or (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; or (iv)a combination of (i), (ii)and (iii)above. Payment instruments will be received subject to collection."
"(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."
"(a) Termination Due to Death. If the Optionees employment terminates by reason of the Optionees death, any portion of this Stock Option outstanding on such date, to the extent exercisable on the date of death, may thereafter be exercised by the Optionees legal representative or legatee for a period of 12 months from the date of death or until the Expiration Date, if earlier. Any portion of this Stock Option that is not exercisable on the date of death shall terminate immediately and be of no further force or effect."
"(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."
"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 tax withholding obligation to be satisfied, in whole or in part, by withholding from shares of Stock to be issued to the Optionee 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."
"Pursuant to the Braeburn Pharmaceuticals,Inc. 2017 Stock Option and Incentive Plan as amended through the date hereof (the Plan), Braeburn Pharmaceuticals,Inc. (the Company) hereby grants to the Optionee named above an option (the Stock Option) to purchase on or prior to the Expiration Date specified above all or part of the number of shares of Common Stock, par value $0.0001 per share (the Stock) of the Company specified above at the Option Exercise Price per Share specified above subject to the terms and conditions set forth herein and in the Plan. This Stock Option is not intended to be an incentive stock option under Section422 of the Internal Revenue Code of 1986, as amended."
"1. Exercisability Schedule. No portion of this Stock Option may be exercised until such portion shall have become exercisable. Except as set forth below, and subject to the discretion of the Administrator (as defined in Section2 of the Plan) to accelerate the exercisability schedule hereunder, this Stock Option shall be exercisable with respect to the following number of Option Shares on the dates indicated so long as Optionee remains an employee of the Company or a Subsidiary on such dates:"
"(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; (ii)the conviction of, indictment for or plea of nolo contendere by the Optionee to a felony or a crime involving moral turpitude; or (iii)any material misconduct or willful and deliberate non-performance (other than by reason of disability) by the Optionee of the Optionees duties to the Company."
"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."
"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."
"10. 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."
"1. Exercisability Schedule. No portion of this Stock Option may be exercised until such portion shall have become exercisable. Except as set forth below, and subject to the discretion of the Administrator (as defined in Section2 of the Plan) to accelerate the exercisability schedule hereunder, this Stock Option shall be exercisable with respect to the following number of Option Shares on the dates indicated so long as the Optionee remains in service as a member of the Board on such dates:"
"(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."
"(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."
"(b) Other Termination. If the Optionee ceases to be a Director for any reason other than the Optionees death, 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 12 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."
"Pursuant to the Braeburn Pharmaceuticals,Inc. 2017 Stock Option and Incentive Plan as amended through the date hereof (the Plan), Braeburn Pharmaceuticals,Inc. (the Company) hereby grants to the Optionee named above, who is a Consultant of the Company, an option (the Stock Option) to purchase on or prior to the Expiration Date specified above all or part of the number of shares of Common Stock, par value $0.0001 per share (the Stock), of the Company specified above at the Option Exercise Price per Share specified above subject to the terms and conditions set forth herein and in the Plan. This Stock Option is not intended to be an incentive stock option under Section422 of the Internal Revenue Code of 1986, as amended."
"1. Award. The shares of Restricted Stock awarded hereunder shall be issued and held by the Companys transfer agent in book entry form, and the Grantees name shall be entered as the stockholder of record on the books of the Company. Thereupon, the Grantee shall have all the rights of a stockholder with respect to such shares, including voting and dividend rights, subject, however, to the restrictions and conditions specified in Paragraph2 below. The Grantee shall (i)sign and deliver to the Company a copy of this Award Agreement and (ii)deliver to the Company a stock power endorsed in blank."
"5. Incorporation of Plan. Notwithstanding anything herein to the contrary, this Award 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."
"Pursuant to the Braeburn Pharmaceuticals,Inc. Amended and Restated 2015 Stock Option and Incentive Plan as amended through the date hereof (the Plan), Braeburn Pharmaceuticals,Inc. (the Company) hereby grants an award of the number of Restricted Stock Units listed above (an Award) to the Grantee named above. Each Restricted Stock Unit shall relate to one share of Common Stock, par value $0.0001 per share (the Stock) of the Company."
"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."
"5. Incorporation of Plan. Notwithstanding anything herein to the contrary, this Agreement 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 of the Plan. Capitalized terms in this Agreement shall have the meaning specified in the Plan, unless a different meaning is specified herein."
"The Participant is hereby granted, as an eligible Employee of the Company or a Subsidiary, as of the Grant Date, pursuant to the Tellurian Inc. 2016 Omnibus Incentive Compensation Plan, as it may be amended from time to time (the Plan), the number of shares of the Companys Common Stock set forth in Section1 below. Except as otherwise indicated, any capitalized term used but not defined herein shall have the meaning ascribed to such term in the Plan. A copy of the Plan and the prospectus with regard to the shares under an effective registration on Form S-8 have been delivered or made available to the Participant. By signing and returning this Agreement, the Participant acknowledges having received and read a copy of the Plan and the prospectus and agrees to comply with the Plan, this Agreement and all applicable laws and regulations."
"7\. Recoupment Policy. The Participant acknowledges and agrees that the Shares shall be subject to the terms and provisions of any clawback or recoupment policy that may be adopted by the Company from time to time or as may be required by any applicable law (including, without limitation, the Dodd-Frank Wall Street Reform and Consumer Protection Act and rules and regulations thereunder)."
"(b) If the Participant incurs a Termination without Cause, (i)the Restricted Stock that would have vested on the next Vesting Date following the Participants Termination shall vest upon such Termination, and (ii)the Participants remaining unvested Restricted Stock shall remain outstanding for a period of 90 days following the date of Termination and if a Change in Control occurs within such 90 day period, then all of the Participants unvested Restricted Stock shall vest upon such Change in Control. If a Change in Control does not occur within such 90 day period, the Participant shall forfeit the unvested Restricted Stock on the 91st day following the Participants Termination."
"13\. Successors and Assigns. The terms of this Award Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors and permitted assigns. The Participant may not assign any of the rights or obligations under the Award Agreement without the prior written consent of the Company. The Company may assign its rights and obligations to another entity which will succeed to all or substantially all of the assets and business of the Company."
"This Restricted Stock Award Agreement (the Restricted Stock Award Agreement) dated as of[.], 2017 (the Date of Grant), is made by and between Eagle Bulk Shipping Inc., a Republic of the Marshall Islands company (the Company), and [] (the Participant). Capitalized terms not defined herein shall have the meaning ascribed to them in the Eagle Bulk Shipping Inc. 2016 Equity Incentive Plan (the Plan). Where the context permits, references to the Company shall include any successor to the Company."
"3.Restrictions. The Restricted Stock granted hereunder may not be sold, assigned, transferred, pledged, hypothecated or otherwise disposed of or encumbered, and shall be subject to a risk of forfeiture as described in Section 2 and until any additional requirements or restrictions contained in this Restricted Stock Award Agreement have been otherwise satisfied, terminated or expressly waived by the Company in writing."
SharesofRestrictedStock  anniversary of the Grant Date |  | of the shares of Restricted Stock |  anniversary of the Grant Date |  | of the shares of Restricted Stock |  anniversary of the Grant Date |  | of the shares of Restricted Stock * * *
" 5 Rights as Shareholder; Dividends. The Grantee shall be the record owner of the Restricted Stock until the shares of Common Stock are sold or otherwise disposed of, and shall be entitled to all of the rights of a shareholder of the Company including, without limitation, the right to vote such shares and receive any and all dividends or other distributions paid with respect to those shares of Restricted Stock which the Grantee is the record owner on the record date for such dividend or other distribution; provided, however, that any property or cash (including, without limitation, any regular cash dividends) distributed with respect to a share of Restricted Stock (the associated share) acquired hereunder, including without limitation a distribution of shares of common stock by reason of a stock dividend, stock split or otherwise, or a distribution of other securities with respect to an associated share, shall be subject to the restrictions of this Award Agreement in the same manner and for so long as the associated share remains subject to such restrictions, and shall be promptly forfeited if and when the associated share is so forfeited; and further provided, that the Administrator may require that any cash distribution with respect to the shares of Restricted Stock be placed in escrow or otherwise made subject to such restrictions as the Administrator deems appropriate to carry out the intent of the Plan. Any cash amounts that would otherwise have been paid with respect to an associated share shall be accumulated and paid to the Grantee, without interest, only upon, or within thirty (30)days following, the date on which such associated share vests in accordance with this Award Agreement (such date, the Vesting Date) and any other property distributable with respect to an"
" 13 Withholding. The Grantee shall be required to pay to the Company, and the Company shall have the right to deduct from any compensation paid to the Grantee pursuant to the Plan, the amount of any required withholding taxes in respect of the shares of Restricted Stock and to take all such other action as the Committee deems necessary to satisfy all obligations for the payment of such withholding taxes. The Committee may permit the Grantee to satisfy any federal, state or local tax withholding obligation by any of the following means, or by a combination of such means:"
" 14 No Challenge.Notwithstanding any provision of this Award Agreement to the contrary, Grantee covenants and agrees that he or she will not (i)file any claim, lawsuit, demand for arbitration, or other proceeding challenging the validity or enforceability of any provision of this Award Agreement, or (ii)raise, as a defense, the validity or enforceability of any provision of this Award Agreement, in any claim, lawsuit, arbitration or other proceeding.Should Grantee"
"violate any aspect of this  14, Grantee agrees (A)that, in the case of a breach of clause (i)of the preceding sentence, such claim, lawsuit, demand for arbitration, or other proceeding shall be summarily withdrawn and/or dismissed; (B)that Grantee will pay all costs and damages incurred by the Company in responding to or as a result of such claim, lawsuit, demand for arbitration, or other proceeding (including reasonable attorneys fees and expenses), or such defense, as the case may be; (C)that Grantee will immediately forfeit all unvested shares of Restricted Stock; and (d)that Grantee will immediately sell to the Company all vested shares of Restricted Stock at a price equal to the fair market value of such shares on the Grant Date, or the current fair market value of such shares (as determined in the sole discretion of the Company), whichever is less."
"(ff) Restricted Stock Unit means an unfunded and unsecured promise to deliver shares of Common Stock, cash, other securities or other property, subject to certain restrictions (which may include, without limitation, a requirement that the Participant provide continuous services as a non-employee director of the Board for a specified period of time), granted under Section 9 of the Plan."
"(d) Method of Exercise and Form of Payment.No shares of Common Stock shall be issued pursuant to any exercise of an Option until payment in full of the Exercise Price therefor is received by the Company and the Participant has paid to the Company an amount equal to any Federal, state, local and non-U.S. income, employment and any other applicable taxes required to be withheld.Options which have become exercisable may be exercised by delivery of written or electronic notice of exercise to the Company (or telephonic instructions to the extent provided by the Committee) in accordance with the terms of the Option accompanied by payment of the Exercise Price.The Exercise Price shall be payable: (i) in cash, check, cash equivalent and/or shares of Common Stock valued at the Fair Market Value at the time the Option is exercised (including, pursuant to procedures approved by the Committee, by means of attestation of ownership of a sufficient number of shares of Common Stock in lieu of actual issuance of such shares to the Company); provided, that such shares of Common Stock are not subject to any pledge or other security interest and have been held by the Participant for any period of time as established from time to time by the Committee in order to avoid adverse accounting treatment applying generally accepted accounting principles (GAAP); or (ii) by such other method as the Committee may permit, in its sole discretion, including, without limitation (A) in other property having a fair market value on the date of exercise equal to the Exercise Price; (B) if there is a public market for the shares of Common Stock at such time, by means of a broker-assisted cashless exercise pursuant to which the Company is delivered (including telephonically to the extent permitted by the Committee) a copy of irrevocable instructions to a stockbroker to sell the shares of Common Stock otherwise issuable upon the exercise of the Option and to deliver promptly to the Company an amount equal to the Exercise Price; or (C) a net exercise procedure effected by withholding the minimum number of shares of Common Stock otherwise issuable in respect of an Option that are needed to pay the Exercise Price.Any fractional shares of Common Stock shall be settled in cash."
"(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 a manner and on such date or dates or upon such event or events as determined by the Committee.SARs shall expire upon a date determined by the Committee, not to exceed ten (10) years from the Date of Grant (the SAR Period); provided, that if the SAR 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 SAR Period shall be automatically extended until the 30th day following the expiration of such prohibition."
"(iii) Unless otherwise provided by the Committee, whether in an Award Agreement or otherwise, (A) in the event of a Participants Termination by any member of the Company Group for Cause, all outstanding SARs granted to such Participant shall immediately terminate and expire, and (B) in the event of a Participants Termination due to death or Disability, each outstanding vested SAR granted to such Participant shall remain exercisable for one (1) year thereafter (but in no event beyond the expiration of the SAR Period)."
"(a) General.Each grant of Restricted Stock and Restricted Stock Units shall be evidenced by an Award Agreement.Each Restricted Stock and Restricted Stock Unit so granted shall be subject to the conditions set forth in this Section 9, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award Agreement."
"(ii) Unless otherwise provided by the Committee in an Award Agreement or otherwise, upon the expiration of the Restricted Period with respect to any outstanding Restricted Stock Units, the Company shall issue to the Participant or the Participants beneficiary, without charge, one (1) share of Common Stock (or other securities or other property, as applicable) for each such outstanding Restricted Stock Unit; provided, however, that the Committee may, in its sole discretion, elect to (A) pay cash or part cash and part shares of Common Stock in lieu of issuing only shares of Common Stock in respect of such Restricted Stock Units; or (B) defer the issuance of shares of Common Stock (or cash or part cash and part shares of Common Stock, as the case may be) beyond the expiration of the Restricted Period if such extension would not cause adverse tax consequences under Section 409A of the Code.If a cash payment is made in lieu of issuing shares of Common Stock in respect of such Restricted Stock Units, the amount of such payment shall be equal to the Fair Market Value per share of the Common Stock as of the date on which the Restricted Period lapsed with respect to such Restricted Stock Units.To the extent provided in an Award Agreement or otherwise, upon the payment by the Company of dividends on shares of Common Stock, the holder of outstanding Restricted Stock Units shall be entitled to be credited with dividend equivalent payments in cash (unless, the Committee, in its sole discretion, elects to credit such payments in shares of Common Stock or additional Restricted Stock Units having a Fair Market Value equal to the amount of such dividend), and interest may, in the sole discretion of the Committee, be credited on the amount of cash dividend equivalents at a rate and subject to such terms as determined by the Committee, which accumulated dividend equivalents (and earnings or interest thereon, if applicable) shall be payable at the same time as the underlying Restricted Stock Units are settled following the date on which the Restricted Period lapses with respect to such Restricted Stock Units, and, if such Restricted Stock Units are forfeited, the Participant shall have no right to such dividend equivalent payments (orearnings or interest thereon, if applicable)."
TRANSFER OF THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY IS RESTRICTED PURSUANT TO THE TERMS OF THE HILTON GRAND VACATIONS INC. 2017 STOCK PLAN FOR NON-EMPLOYEE DIRECTORS AND A RESTRICTED STOCK AWARD AGREEMENT BETWEEN HILTON GRAND VACATIONS INC. AND PARTICIPANT.A COPY OF SUCH PLAN AND AWARD AGREEMENT IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF HILTON GRAND VACATIONS INC.
"(c) No Repricing.Notwithstanding anything in the Plan to the contrary, without stockholder approval, except as otherwise permitted under Section 11 of the Plan, (i) no amendment or modification may reduce the Exercise Price of any Option or the Strike Price of any SAR; (ii) the Committee may not cancel any outstanding Option or SAR and replace it with a new Option or SAR (with a lower Exercise Price or Strike Price, as the case may be) or other Award or cash payment that is greater than the intrinsic value (if any) of the cancelled Option or SAR; and (iii) the Committee may not take any other action which is considered a repricing for purposes of the stockholder approval rules of any securities exchange or inter-dealer quotation system on which the securities of the Company are listed or quoted."
"(b) Nontransferability. 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."
"(i) A Participant shall be required to pay to the Company or one or more of its Subsidiaries, as applicable, an amount in cash (by check or wire transfer) equal to the aggregate amount of any income, employment and/or other applicable taxes that are statutorily required to be withheld in respect of an Award.Alternatively, the Company or any of its Subsidiaries may elect, in its sole discretion, to satisfy this requirement by withholding such amount from any cash compensation or other cash amounts owing to a Participant."
"(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 any period of time as established from time to time by the Committee in order to avoid adverse accounting treatment under GAAP) 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)."
"(h) Termination.Except as otherwise provided in an Award Agreement, if a Participant undergoes a Termination of service as a member of the Board, but such Participant continues to provide services to the Company Group in a non- employee capacity, such change in status shall not be considered a Termination for purposes of the Plan."
"(n) No Trust or Fund Created.Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between any member of the Company Group, on the one hand, and a Participant or other Person, on the other hand.No provision of the Plan or any Award shall require the Company, for the purpose of satisfying any obligations under the Plan, to purchase assets or place any assets in a trust or other entity to which contributions are made or otherwise to segregate any assets, nor shall the Company be obligated to maintain separate bank accounts, books, records or other evidence of the existence of a segregated or separately maintained or administered fund for such purposes.Participants shall have no rights under the Plan other than as unsecured general creditors of the Company, except that insofar as they may have become entitled to payment of additional compensation by performance of services, they shall have the same rights as other service providers under general law."
"(o) Reliance on Reports.Each member of the Committee and each member of the Board shall be fully justified in acting or failing to act, as the case may be, and shall not be liable for having so acted or failed to act in good faith, in reliance upon any report made by the independent public accountant of any member of the Company Group and/or any other information furnished in connection with the Plan by any agent of the Company or the Committee or the Board, other than himself or herself."
"(q) Severability.If any provision of the Plan or any Award or Award Agreement is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any Person or Award, or would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to the applicable laws, or if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan or the Award, such provision shall be construed or deemed stricken as to such jurisdiction, Person or Award and the remainder of the Plan and any such Award shall remain in full force and effect."
"(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 no 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 or termination of service (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 separate payments."
"separation from service (as defined in Section 409A of the Code) shall be made to such Participant prior to the date that is six (6) months after the date of such Participants separation from service or, if earlier, the date of the Participants death.Following any applicable six (6) month delay, all such delayed payments will be paid in a single lump sum on the earliest date permitted under Section 409A of the Code that is also a business day."
Dividend Equivalent Right means an Award entitling the grantee to receive credits based on cash dividends that would have been paid on the shares of Stock specified in the Dividend Equivalent Right (or other award to which it relates) if such shares had been issued to and held by the grantee.
"Performance Cycle means one or more periods of time, which may be of varying and overlapping durations, as the Administrator may select, over which the attainment of one or more Performance Criteria will be measured for the purpose of determining a grantees right to and the payment of a Restricted Stock Award, Restricted Stock Units, Performance Share Award or Cash-Based Award, the vesting and/or payment of which is subject to the attainment of one or more Performance Goals. Each such period shall not be less than 12 months."
"(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, without limitation, reasonable attorneys fees) arising or resulting therefrom to the fullest extent permitted by law and/or under the Companys articles or bylaws or any directors and officers liability insurance coverage which may be in effect from time to time and/or any indemnification agreement between such individual and the Company."
"(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 for the purchase price; provided that in the event the optionee chooses to pay the 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 Company shall prescribe as a condition of such payment procedure; or"
"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 shares of Stock to be purchased pursuant to the exercise of a Stock Option will be contingent upon receipt from the optionee (or a purchaser acting in his stead in accordance with the provisions of the Stock Option) by the Company of the full purchase price for such shares and the fulfillment of any other requirements contained in the Option Award Certificate or applicable provisions of laws (including the satisfaction of any withholding taxes that the Company is obligated to withhold with respect to the optionee). In the event an 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 number of attested shares. In the event that the Company establishes, for itself or using the services of a third party, an automated system for the exercise of Stock Options, such as a system using an internet website or interactive voice response, then the paperless exercise of Stock Options may be permitted through the use of such an automated system."
(a) Award of Stock Appreciation Rights. The Administrator may grant Stock Appreciation Rights under the Plan. A Stock Appreciation Right is an Award entitling the recipient to receive shares of Stock having a value equal to the excess of the Fair Market Value of a share of Stock on the date of exercise over the exercise price of the Stock Appreciation Right multiplied by the number of shares of Stock with respect to which the Stock Appreciation Right shall have been exercised.
"(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."
(b) Rights as a Stockholder. A grantee receiving a Performance Share Award shall have the rights of a stockholder only as to shares of Stock actually received by the grantee under the Plan and not with respect to shares subject to the Award but not actually received by the grantee. A grantee shall be entitled to receive shares of Stock under a Performance Share Award only upon satisfaction of all conditions specified in the Performance Share Award Certificate (or in a performance plan adopted by the Administrator).
"(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."
"(b) Payment in Stock. Subject to approval by the Administrator, a grantee may elect to have the Companys minimum required tax withholding obligation satisfied, in whole or in part, by authorizing the Company to withhold from shares of Stock to be issued pursuant to any Award a number of shares with an aggregate Fair Market Value (as of the date the withholding is effected) that would satisfy the withholding amount due. The Administrator may also require Awards to be subject to mandatory share withholding up to the required withholding amount. For purposes of share withholding, the Fair Market Value of withheld shares shall be determined in the same manner as the value of Stock includible in income of the Participants."
"The Board may, at any time, amend or discontinue the Plan and the Administrator may, at any time, amend or cancel any outstanding Award for the purpose of satisfying changes in law or for any other lawful purpose, but no such action shall adversely affect rights under any outstanding Award without the holders consent. Except as provided in Section3(b)or 3(c), without prior stockholder approval, in no event may the Administrator exercise its discretion to reduce the exercise price of outstanding Stock Options or Stock Appreciation Rights or effect repricing through cancellation and re-grants or cancellation of Stock Options or Stock 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(c)or 3(d)."
"(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 such laws, regulations, or requirements. The Administrator shall have the right to require any individual to comply with any timing or other restrictions with respect to the settlement or exercise of any Award, including a window-period limitation, as may be imposed in the discretion of the Administrator."
"This Plan shall become effective upon the date immediately preceding the date of the Companys Initial Public Offering following stockholder approval in accordance with applicable state law, the Companys bylaws and articles of incorporation, and applicable stock exchange rules. No grants of Stock Options and other Awards may be made hereunder after the tenth anniversary of the Effective Date and no grants of Incentive Stock Options may be made hereunder after the tenth anniversary of the date the Plan is approved by the Board."
"[Notwithstanding anything contained in this Agreement to the contrary, in the event (and only in the event) that this Stock Option or the Option Shares are assumed or continued by the Company or its successor entity in a Sale Event (as defined in the Plan) in the sole discretion of the parties to a Sale Event and thereafter remains in effect following such Sale Event, then 100% of the then-unvested Option Shares shall be deemed vested in full upon the date on which the Optionees employment with the Company, a Subsidiary or successor entity terminates if (A)such termination occurs in connection with and effective as of the date of, or within 12 months following the date of, such Sale Event and (B)such termination is either by the Company without Cause (as defined in the Plan) or by the Optionee for Good Reason (as defined in the Plan).]"
"(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."
"(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."
8. No Obligation to Continue Employment. Neither the Company nor any Subsidiary is obligated by or as a result of the Plan or this Agreement to continue the Optionee in employment and neither the Plan nor this Agreement shall interfere in any way with the right of the Company or any Subsidiary to terminate the employment of the Optionee at any time.
"[Notwithstanding anything contained in this Agreement to the contrary, in the event (and only in the event) that this Stock Option or the Option Shares are assumed or continued by the Company or its successor entity in a Sale Event (as defined in the Plan) in the sole discretion of the parties to a Sale Event and thereafter remains in effect following such Sale Event, then 100% of the then-unvested Option Shares shall be deemed vested in full upon the date on which the Optionees employment with the Company, a Subsidiary or successor entity terminates if (A)such termination occurs in connection with and effective as of the date of, or within 12 months following the date of, such Sale Event and (B)such termination is either by the Company without Cause (as defined in the Plan) or by the Optionee for Good Reason (as defined in the Plan).]"
"(c) The minimum number of shares with respect to which this Stock Option may be exercised at any one time shall be 100 shares, unless the number of shares with respect to which this Stock Option is being exercised is the total number of shares subject to exercise under this Stock Option at the time."
7. No Obligation to Continue Employment. Neither the Company nor any Subsidiary is obligated by or as a result of the Plan or this Agreement to continue the Optionee in employment and neither the Plan nor this Agreement shall interfere in any way with the right of the Company or any Subsidiary to terminate the employment of the Optionee at any time.
"(c) The minimum number of shares with respect to which this Stock Option may be exercised at any one time shall be 100 shares, unless the number of shares with respect to which this Stock Option is being exercised is the total number of shares subject to exercise under this Stock Option at the time."
"[Notwithstanding anything contained in this Agreement to the contrary, in the event (and only in the event) that this Agreement or the Restricted Stock Units are assumed or continued by the Company or its successor entity in a Sale Event (as defined in the Plan) in the sole discretion of the parties to a Sale Event and thereafter remains in effect following such Sale Event, then 100% of the then-unvested Restricted Stock Units shall be deemed vested in full upon the date"
"4. Issuance of Shares of Stock. As soon as practicable following each Vesting Date (but in no event later than two and one-half months after the end of the year in which the Vesting Date occurs), the Company shall issue to the Grantee the number of shares of Stock equal to the aggregate number of Restricted Stock Units that have vested pursuant to Paragraph 2 of this Agreement on such date and the Grantee shall thereafter have all the rights of a stockholder of the Company with respect to such shares."
"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 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."
"5. Incorporation of Plan. Notwithstanding anything herein to the contrary, this Agreement 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."
"Quality Systems, Inc. (the Company), pursuant to its 2015 Equity Incentive Plan (the Plan), hereby grants to Participant the right to RECEIVE the number of shares of the Companys Common Stock set forth below (Award), subject to the Participants execution of this Agreement by []. This Award is subject to all of the terms and conditions as set forth herein and in the Performance/Restricted Stock Award Agreement and the Plan, each of which are attached hereto and incorporated herein in their entirety. Defined terms not explicitly defined in this Grant Notice but defined in the Plan shall have the same definitions as in the Plan."
"Vesting Acceleration: Notwithstanding the Vesting Schedule, the Award shall earlier become vested in accordance with the following terms: (1) 100% vested effective immediately prior to consummation of a Change in Control [and (2)vested in the Tax-Protection Shares effective as of termination of Participants Continuous Service if (a)the Participant timely makes a Code Section 83(b) election for the entire Award after the Date of Grant, (b)the Participants Continuous Service ends by reason of involuntarily termination by the Company without Cause (as defined in the Plan), resignation by the Participant for Good Reason (as defined in Section 9(b) of the Performance/Restricted Stock Award Agreement), termination by reason of the Participants Disability (as defined in the Plan) or termination by reason of the Participants death and (c)the Participant enters into a release of claims in a form acceptable to the Company that becomes irrevocable within sixty (60)days after the termination of Continuous Service (except in the case of death); provided, that in no event will vesting exceed 100% of the Number of Shares Subject to Award. Tax-Protection Shares means that number of shares of Company Common Stock that has a Fair Market Value (as defined in the Plan) on the date of the Participants termination of Continuous Service equal to (x)the Fair Market Value of 50% of the shares of Company Common Stock subject to the Award valued as of the Date of Grant minus (y)the Fair Market Value of any shares of Company Common Stock that vested after the Date of Grant and before the date of the termination of Participants Continuous Service, valued as of the respective vesting date(s).]"
"7 or other entity that generates more than 10% of its annual revenue from the sale of any concrete- related products and services that the Company or its Affiliates offers, then has plans to offer, or has offered in the preceding 12-month period, including, but not limited to, ready-mixed concrete, pre- cast concrete or related building materials or services such as proportioned mix design services, concrete mold engineering or design services, rebar, mesh, color additives, curing compounds, grouts, wooden forms, or similar products or services, whether at wholesale or retail (a Competing Business). Executive understands that the foregoing restrictions may limit Executives ability to engage in certain businesses in the geographic region and during the period provided for above, but acknowledges that these restrictions are necessary to protect the Confidential Information the Company has provided to Executive. 2.4 Non-Solicitation of Customers. During Executives employment with the Company and for the Period of Post-Employment Non-Competition Obligations, Executive will not call on, service, or solicit Competing Business from clients or customers of the Company or its affiliated entities whom that Executive, within the previous 24 months, (i) provided services to, worked with, solicited or had or made contact with, or (ii) had access to information and files concerning. 2.5 Non-Solicitation of Employees. During Executives employment with the Company, and for the Period of Post-Employment Non-Competition Obligations, Executive will not, either directly or indirectly, call on, solicit, or induce any other employee or officer of the Company or its affiliated entities whom Executive had contact with, knowledge of, or association with in the course of employment with the Company to terminate his employment, and will not assist any other person or entity in such a solicitation. 2.6 Early Resolution Conference/Arbitration. The parties are entering into this Agreement with the express understanding that this Agreement is clear and fully enforceable as written. If Executive ever decides to contend that any restriction on activities imposed by Article 2 of this Agreement is no longer enforceable as written or does not apply to an activity in which Executive intends to engage, Executive first will notify the Companys Chief Executive Officer and its General Counsel in writing and meet with a Company representative at least 14 days before engaging in any activity that foreseeably could fall within the questioned restriction to discuss resolution of such claims (an Early Resolution Conference). Should the parties not be able to resolve disputes at the Early Resolution Conference, the parties agree to use confidential, binding arbitration to resolve the disputes. The arbitration shall be conducted in Dallas, Texas, in accordance with the then-current employment arbitration rules of the American Arbitration Association, before an arbitrator licensed to practice law in Texas. Each party shall bear its own costs and expenses (including reasonable attorneys fees and expenses) incurred in connection with any dispute and/or arbitration arising out of or relating to this Agreement; provided, however, that the parties agree that the arbitrator, in the arbitrators discretion, may award a prevailing party, a reasonable attorneys fee, including arbitration expenses and costs. Either party may seek a temporary restraining order, injunction, specific performance, or other equitable relief regarding the provisions of this Section if the other party fails to comply with obligations stated herein. The parties agreement to arbitrate applies only to the matters subject to an Early Resolution Conference."
"9 provided, however, that notwithstanding anything to the contrary contained in clauses (i) - (v), a Change in Control shall not be deemed to have occurred in connection with any bankruptcy or insolvency of the Company, or any transaction in connection therewith. b. As used in this Agreement, the following terms are defined as follows: (i) Affiliate shall mean, with respect to any person or entity, any person or entity that, directly or indirectly, Controls, is Controlled by, or is under common Control with such person or entity in question. For the purposes of the definition of Affiliate, Control (including, with correlative meaning, the terms Controlled by and under common Control with) as used with respect to any person or entity, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person or entity whether through the ownership of voting securities or by contract or otherwise; (ii) Beneficial Owner has the meaning ascribed to it pursuant to Rule 13d-3 under the Securities Exchange Act of 1934; and (iii) Parent means a corporation, partnership, trust, limited liability company or other entity that is the ultimate Beneficial Owner of more than 50% of the Companys or its successors outstanding voting securities. 3.2 Vesting of Awards. a. All stock options, restricted stock awards, restricted stock units and similar equity awards granted to Executive by the Company prior to the date of a Change in Control shall, notwithstanding any contrary provision of any applicable plan or agreement covering any such stock options, restricted stock awards, restricted stock units or similar awards, fully vest and become exercisable in full upon the consummation of such Change in Control and shall remain outstanding and in effect in accordance with their terms, and any restrictions, forfeiture conditions or other conditions or criteria applicable to any such awards shall lapse immediately upon the consummation of such Change in Control. Notwithstanding the foregoing, any such award that is subject to Section 409A of the Internal Revenue Code of 1986, as amended (the Code) and the Treasury Regulations promulgated thereunder (and such other Treasury or Internal Revenue Service guidance) as in effect from time to time (Section 409A) shall only fully vest and become exercisable in full immediately upon a change in ownership or effective control as defined in Section 409A that also constitutes a Change in Control as defined in Section 3.1 above. Subject to Section 3.2(b) below, Executive may exercise any such stock options or other exercisable awards at any time before the expiration of their term. b. Notwithstanding anything in Section 3.2(a) to the contrary, in the event of a Change in Control, the Company may, in its sole discretion, provide for the cancellation upon the consummation of such Change in Control of all outstanding stock options, restricted stock awards, restricted stock units and similar equity awards granted to Executive by the Company prior to the date of such Change in Control, whether or not vested and exercisable, and a payment in cash, property, or a combination thereof, will be made to Executive within ten (10) days after the consummation of the Change in Control in an amount equal to (a) in the case of"
"15 EXHIBIT A TO EXECUTIVE SEVERANCE AGREEMENT BETWEEN U.S. CONCRETE AND JOHN E. KUNZ Position: Sr. Vice President & Chief Financial Officer Location: Euless, Texas Geographic Region of Responsibility: During Executives employment with the Company, within 75 miles of any plant or other operating facility in which the Company is then engaged in business. Upon termination of Executives employment with the Company, within 75 miles of any plant or other operating facility in which the Company was engaged in business on the date immediately prior to Executives termination. Change in Control Multiplier: 2 Period of Post-Employment Non-Competition Obligations: If Executives employment is terminated under Section 1.1 or 1.2, the Period of Post- Employment Non-Competition Obligations shall be one year from the date of termination. If Executives employment is terminated under Section 1.3, the Period of Post-Employment Non-Competition Obligations shall commence on the date of termination and continue for period of time equal to (a) 12 months multiplied by (b) the Change in Control Multiplier. Annual Base Salary: $425,000 or such higher rate as may be determined by the Company from time to time Annual Paid Vacation: Four weeks"
"2\. Payment Following the Separation Date. Pursuant to Section 8(b) of the Employment Agreement, the Company shall pay Executive (i)all unpaid base salary accrued up to the Separation Date; (ii)all accrued but unused vacation, sick pay, and floating holidays, as well as any other unpaid benefits described in Section5 of the Employment Agreement for any period prior to the Separation Date; and (iii)any unreimbursed business expenses in accordance with the Companys regular business expense verification practices. Executive acknowledges that Executive is not owed any additional compensation, benefits, or payment by virtue of Executives employment, or termination of Executives employment, except as provided herein or pursuant to any benefit plans in which Executive has participated and is currently vested. Executive further acknowledges that the payment of all accrued but unpaid salary and vacation and unreimbursed business expenses through the Separation Date shall be paid by the next payroll period following the Separation Date whether or not, and without regard to when, Executive agrees to sign this Agreement."
"8. Non-Disparagement. Executive agrees that Executive will not disparage or communicate unfavorably about the Released Parties or the Companys clients to third parties or in public or otherwise take any action or make any comment whatsoever that would harm, injure, or potentially harm or injure, the goodwill or reputation of the Released Parties or the Companys clients. This provision is not intended to, and shall not, prohibit Executive from cooperating with any government investigation or court order or from making a good-faith, truthful report to any government agency with oversight responsibility for the Company, including without limitation the Occupational Safety and Health Administration. "
"(a) The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively Code Section 409A) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. In no event whatsoever shall the Company be liable for any additional tax, interest, or penalty that may be imposed on Executive by Code Section 409A or damages for failing to comply with Code Section 409A."
"27\. Agreement Knowing and Voluntary. Executive is advised that Executive has the right to and should consult with an attorney of Executives choice, at Executives expense, during the Consideration and/or Revocation Periods. By signing this Agreement, Executive acknowledges that Executive has had an adequate opportunity to consult with an attorney and consider this Agreement. Executive further acknowledges that Executive has carefully read and fully understands all the provisions of this Agreement, specifically including the General Release of Claims included in Section4 of this Agreement. Executive acknowledges that Executive is fully satisfied with the terms and conditions of this Agreement, including, without limitation, the Base Severance Pay and Bonus Severance Pay to be paid to Executive by the Company. Finally, Executive also acknowledges that Executive is voluntarily entering into this agreement without any threat or coercion. If Executive chooses to revoke this Agreement within the Revocation Period, the Agreement shall become null and void, and Executive shall not be entitled to any of the benefits set forth in this Agreement to which Executive would otherwise not be entitled, including the Base Severance Pay and Bonus Severance Pay. Should Executive not exercise Executives right to revoke this Agreement within seven (7)days of the date of execution, this Agreement shall be held in full force and effect, and each Party shall be obligated to comply with its requirements."
"(c) ""Change in Control"" shall mean an event that constitutes a ""change in control"" as defined in Parent's LTIP. Any modification to the definition of ""change in control"" in Parent's LTIP (including by virtue of the adoption by the Parent of a successor plan thereto setting forth a modified definition of ""change in control"") adopted after the Effective Date shall apply for purposes of this Agreement, except that any modification to such definition adopted on or after, or within 180 days prior to, a Change of Control or Potential Change of Control shall not apply in determining the definition of such term under this Agreement unless such amendment is favorable to Employee; and provided further that any change to the definition of a change in control in Parent's LTIP adopted in 2008 to comply with the requirements of Section 409A of the Code shall be deemed to be favorable to Employee."
"(4) Any failure by the Company, other than an insubstantial or inadvertent failure remedied by the Company promptly after receipt of notice thereof given by Employee, to provide Employee with Base Salary at the level payable to Employee on the Effective Date or, if more favorable to Employee, at the highest rate made available to Employee at any time thereafter."
"(b) Non-Interference with Business Relationships. During the Employment Period and the Restriction Period, Employee shall not directly or indirectly take any actions which can reasonably be expected to, or are intended to, disrupt or interfere with in any significant way any existing relationship that the Company has with any third party."
"WHEREAS, the Board of Directors of the Company has determined that appropriate steps should be taken to reinforce and encourage the Executives continued attention and dedication to the Executives assigned duties without distraction in the face of potentially disturbing circumstances arising from the possibility of a change in control of the Company, although no such change is presently known to be contemplated."
"Cause shall mean (i)the Executives engaging in willful and repeated gross negligence or gross misconduct, (ii)the Executives breaching of a material fiduciary duty to the Employer, or (iii)the Executives being convicted of a felony, in either case, to the demonstrable and material injury to the Employer. For purposes hereof, no act, or failure to act, on the Executives part, shall be deemed willful unless done, or omitted to be done, by the Executive not in good faith and without reasonable belief that any act or omission was in the best interest of the Employer."
"(i)the members of the Board at the beginning of any consecutive 12-calendar-month period (the Incumbent Directors) cease for any reason other than due to death to constitute at least a majority of the members of the Board; provided that any director whose election, or nomination for election by the Companys stockholders, was approved by a vote of at least a majority of the members of the Board then still in office who were members of the Board at the beginning of such 12-calendar-month period, shall be deemed to be an Incumbent Director;"
"2.3(a) The payments and benefits provided for in Section2.1 and Section2.2 shall (except as otherwise expressly provided therein or as provided in Section 2.3(b) or Section 2.4(b), or as otherwise expressly provided hereunder) be made on the business day coinciding with or next following the 10th day following the Date of Termination with respect to a Covered Termination (the Payment Date)."
"(b)Notwithstanding any other provision of this Agreement to the contrary, no payment or benefit otherwise provided for under or by virtue of the foregoing provisions of this Agreement shall be paid or otherwise made available unless, on or before the Payment Date, the Executive has executed and not revoked a valid, binding and irrevocable general release of claims in favor of the Employer, in form and substance reasonably acceptable to the Employer. Failure by the Executive to timely deliver (and not revoke) a valid and binding release shall result in the forfeiture of all payments and benefits under this Agreement."
"(a)The Executives entitlement to receive or begin receiving payment of the Deferred Compensation is conditioned upon the Executives separation from service. For this purpose, the Executive shall have separated from service if and only if his level of services to the Company and its affiliates decreases and is expected to remain at a level equal to twenty percent (20%) or less of the average level of services performed by the Executive during the immediately preceding 36-month period."
"(b)If the Executive is a specified employee as defined in Section 409A of the Code with respect to the Company upon his separation from service, then any payment required hereunder, to the extent such payment would constitute deferred compensation for purposes of Section 409A of the Code that is payable on account of the Executives separation from service, shall be deferred and shall not be paid to the Executive until the date that is the later of (1)the date such payment is due under the terms of this Agreement, or (2) 6 months and 1 day following the date of the Executives separation from service."
"5.3This Agreement shall not affect any rights of the Company or the Executive prior to a Change in Control or any rights of the Executive granted in any other agreement, plan or arrangements. The rights, duties and benefits provided hereunder shall only become effective upon a Change in Control. If the employment of the Executive by the Company is terminated for any reason prior to a Change in Control, this Agreement shall thereafter be of no further force and effect."
"6.1(a) The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company expressly to assume and agree to perform under the terms of this Agreement in the same manner and to the same extent that the Company and its affiliates would be required to perform it if no such succession had taken place (provided that such a requirement to perform which arises by operation of law shall be deemed to satisfy the requirements for such an express assumption and agreement), and in such event the Company (as constituted prior to such succession) shall have no further obligation under or with respect to this Agreement. Failure of the Company to obtain such assumption and agreement with respect to the Executive prior to the effectiveness of any such succession shall be a breach of the terms of this Agreement with respect to the Executive and shall entitle the Executive to compensation from the Employer (as constituted prior to such succession) in the same amount and on the same terms as the Executive would be entitled to hereunder were the Executives employment terminated for Good Reason following a Change in Control, except that for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, Company shall mean the Company as hereinbefore defined and any successor to its business or assets as aforesaid which assumes and agrees (or is otherwise required) to perform this Agreement. Nothing in this Section 6.1(a) shall be deemed to cause any event or condition which would otherwise constitute a Change in Control not to constitute a Change in Control."
"6.3The Employer shall pay all reasonable legal fees and expenses incurred in a legal proceeding, including any arbitration pursuant to Section6.10 or otherwise, by the Executive in seeking to obtain or enforce any right or benefit provided by this Agreement. Such payments are to be made within twenty (20)days after the Executives request for payment accompanied with"
"(c) conviction of Executive of, or Executive pleading guilty or nolo contendere to, a felony (other than a violation of a motor vehicle or moving violation law) or a misdemeanor if such misdemeanor (i)materially damages the Company or any of its Affiliates or (ii)involves the commission of a criminal act against the Company or any of its Affiliates; or"
"(c) a material diminution in Executives normal duties and responsibilities, including, but not limited to, the assignment without Executives consent of any diminished duties and responsibilities which are inconsistent with Executives positions, duties and responsibilities with the Company and its Affiliates on the date of this Agreement, or a materially adverse change in Executives reporting responsibilities or titles as in effect on the date of this Agreement, or any removal of Executive from or any failure to re-elect Executive to any of such positions, except in connection with the termination of the Executives employment for Cause or upon death, Disability, voluntary resignation or other termination of employment by Executive without Good Reason;"
"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."
"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."
"11. Severable Provisions. The provisions of this Agreement are severable and the invalidity of any one or more provisions shall not affect the validity of any other provision. In the event that a court of competent jurisdiction shall determine that any provision of this Agreement or the application thereof is unenforceable in whole or in part because of the duration or scope thereof, the parties hereto agree that said court in making such determination shall have the power to reduce the duration and scope of such provision to the extent necessary to make it enforceable, and that this Agreement in its reduced form shall be valid and enforceable to the full extent permitted by law."
"(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 subject to Section409A on account or as a result of a termination of employment unless such termination is also a separation from service within the meaning of Section409A, and for purposes of any such provision of this Agreement, references to termination, terminate, termination of employment or like terms shall mean separation from service."
"(d) Notwithstanding any provision in this Agreement to the contrary, if Executive is a specified employee (within the meaning of Treasury Regulation Section1.409A-1(i)and using the identification methodology selected by the Company from time to time) on the date of termination, to the extent payments made hereunder (as well as any other payment or benefit that Executive is entitled to receive upon his separation from service) constitute deferred compensation (after taking account any applicable exceptions under Section409A), and to the extent required by Section409A, payments or benefits payable upon separation from service which otherwise would be payable during the six-month period immediately following the date of termination will instead be paid or made available on the earlier of (i)the first day following the six (6)month anniversary of Executives date of termination and (ii)Executives death."
"3\. Duties. During the Term, the Executive will serve as the Chief Information Officer for the Employer. The Executive will have the powers and authority normally associated with such position. The Employer reserves the right to change the Executives office or title from time to time during the Term. In addition, the Executive will assume such other responsibilities, consistent with Executives position, as the Employer may delegate to the Executive from time to time. The Executive will be employed on a full-time basis and shall devote his or her full employment time, efforts and energy to the performance of his or her duties for the Employer."
"5.1 Upon the termination of the Executives employment for any reason, the Employer will pay to the Executive all accrued but unpaid base salary, at the rate then in effect, through the date of the Executives termination of active employment. The Executive shall also be entitled to payment of other vested benefits accrued to the date of termination of employment in accordance with the terms and conditions of the applicable plans in which the Executive is a participant."
"5.3 Notwithstanding anything in this Agreement to the contrary, payments and benefits under Section5.2 shall not be made or be available if the Executives termination of employment is due to the Executives death (except as set forth in Section4.4), Permanent Disability (except as set forth in Section4.3), voluntary resignation without Good Reason, or involuntary termination by the Employer with Cause."
"5.6 This Agreement is intended to comply with Section409A of the Code and will be interpreted in a manner intended to comply with Section409A of the Code. Notwithstanding anything herein to the contrary, (i)if at the time of Executives termination of employment with the Employer, he or she is a specified employee as defined in Section409A of the Code (and any related regulations or other pronouncements thereunder) and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Section409A of the Code, then the Employer will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Executive) until the date that is six (6)months following the Executives termination of employment with the Employer (or the earliest date as is permitted under Section409A of the Code) and (ii)if any other payments of money or other benefits due to the Executive hereunder could cause the application of an accelerated or additional tax under Section409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Employer, that does not cause such an accelerated or additional tax. To the extent any reimbursements or in- kind benefits due to the Executive under this Agreement constitute deferred compensation under Section409A of the Code, any such reimbursements or in-kind benefits shall be paid to Executive in a manner consistent with Treas. Reg. Sectionl.409A-3(i)(1)(iv). Each payment made under this Agreement shall be designated as a separate payment within the meaning of Section409A of the Code. The Employer shall consult with the Executive in good faith regarding the implementation of the provisions of this Section5.6; provided that neither the Employer nor any of its employees or representatives shall have any liability to the Executive with respect thereto."
"has been a Payment, or such earlier time as is requested by the Employer. All fees and expenses of the Accounting Firm shall be borne solely by the Employer. Any Gross-Up Payment, as determined pursuant to this Section8, shall-be paid by the Employer to Executive within five (5)days of the receipt of the Accounting Firms determination. Any determination by the Accounting Firm shall be binding upon the Employer and Executive. As a result of the uncertainty in the application of Section4999 of the Code, at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Employer should have been made (Underpayment), consistent with the calculations required to be made hereunder. In the event that the Employer exhausts its remedies pursuant to Section8(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Employer to or for the benefit of Executive."
|  | |  | /s/ Keith Rohland |  | |  | |  | |  | Keith Rohland | | | | By: |  | /s/ Dave Esler |  | |  | |  | | | | | Its: |  | Chief Human Resources Officer |  | |  | |  | |  | |  | |  | |  | Address: | | | | 
"2\. I intend this Release to be binding on my successors, and I specifically agree not to file or continue any claim in respect of matters covered by this Release. I further agree never to institute any suit, complaint, proceeding, grievance or action of any kind at law, in equity, or otherwise in any court of the United States or in any state, or in any administrative agency of the United States or any state, county or municipality, or before any other tribunal, public or private, against the Company arising from or relating to my employment with or my termination of employment from the Company and/or any other occurrences to the date of this Release, other than a claim challenging the validity of this Release under the ADEA."
"10. No Effect on Other Rights. Except as set forth in Section4.3, nothing in this Agreement shall prevent or limit Executives continuing or future participation in any plan, program, policy or practice of or provided by the Company or any of its Affiliates and for which Executive may qualify, nor shall anything herein limit or otherwise affect such rights as Executive may have under any restricted stock unit or other agreements with the Company or any of its Affiliates. Amounts which are vested benefits or which Executive is otherwise entitled to receive under any plan, program, policy or practice of or provided by, or any other contract or agreement with, the Company or any of its Affiliates at or subsequent to the date of termination shall be payable or otherwise provided in accordance with such plan, program, policy or practice or contract or agreement except as explicitly modified by this Agreement."
"13.2. 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. 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 legal representatives, estate, executors, administrators, heirs and beneficiaries. All amounts payable to Executive hereunder shall be paid, in the event of Executives death, to Executives legal representatives, estates, heirs or beneficiaries, in each case, in accordance with applicable law."
"(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 subject to Section409A on account or as a result of a termination of employment unless such termination is also a separation from service within the meaning of Section409A, and for purposes of any such provision of this Agreement, references to termination, terminate, termination of employment or like terms shall mean separation from service."
"(b)If the Executives employment is terminated by the Company for Cause, by the Executive without Good Reason or by reason of the Executives death, the Companys sole obligation hereunder shall be to pay the Executive the following amounts: (i) any earned and unpaid base salary, (ii) reimbursement for any and all monies advanced or expenses incurred through the Termination Date, and (iii) any earned compensation which the Executive had previously deferred (including any interest earned or credited thereon) pursuant to the Companys Supplemental"
"(d)This Section 2(d) shall apply if there is a termination of the Executives employment (i) by the Company other than for Cause, death or Disability or (ii) by the Executive for Good Reason, in each case, either (A) during the one-year period following a Change in Control or (B) during the six (6) month period preceding a Change in Control; provided that to the extent a termination occurs pursuant to the foregoing clause (B), the Executive shall receive the benefits described in Section 2(a) in accordance with the terms thereof and any additional benefits provided in this Section 2(d) shall be paid in accordance with the terms hereof; provided further that if a Change in Control subsequently occurs, the unpaid balance of the benefits provided in Section 2(a) shall be provided in accordance with this Section 2(d). If any termination described in this Section 2(d) occurs, the Executive (or the Executives estate, if the Executive dies after such termination and execution of the release but before receiving such amount) shall receive the following:"
"(2)The Company shall pay the Executive an amount equal to two (2) times the Executives base salary in effect on the Termination Date, payable in a lump sum within thirty (30) days following the Termination Date; provided that to the extent a Change in Control is not a change in ownership, a change in effective control or a change in the ownership of a substantial portion of the assets of the Company within the meaning of Code Section 409A then, notwithstanding the foregoing, any amount payable under this Section 2(d)(ii)(2) which constitutes nonqualified deferred compensation for purposes of Code Section 409A shall be payable in pro-rata equal installments over the eighteen (18) month period following the Termination Date in accordance with Section 2(e) hereof;"
"(3)Subject to the Executives timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (COBRA), for up to eighteen (18) months following the Termination Date, the Company shall reimburse the Executive for 100% of the monthly premium costs of COBRA coverage for the Executives and the Executives beneficiaries medical and dental benefits similar in the aggregate to the those provided to the Executive immediately prior to the Termination Date, less applicable"
"(h)Except as otherwise expressly provided in this Section 2, all of the Executives rights to salary, bonuses, fringe benefits and other compensation hereunder (if any) which accrue or become payable after the Termination Date will cease upon the Termination Date. The Executives termination of employment with the Company for any reason shall be deemed to automatically remove the Executive, without further action, from any and all offices held by Executive with the Company or its affiliates. The Executive shall execute such additional documents as requested by the Company from time to time to evidence the foregoing."
"(d)Non-Solicitation. During the No-Raid Period described below, the Executive shall not directly or indirectly solicit, induce or attempt to influence any employee to leave the employment of the Company, nor assist anyone else in doing so. Further, during the No-Raid Period, the Executive shall not, either directly or indirectly, alone or in conjunction with another party, interfere with or harm, or attempt to interfere with or harm, the relationship of the Company, with any person who at any time was an employee, customer or supplier of the Company, or otherwise had a business relationship with the Company."
"remedies for any breach or threatened breach hereof, including but not limited to the recovery of damages from the Executive. The Executive and the Company further agree that the confidentiality provisions and the covenants not to compete and solicit contained in this Section 3 are reasonable and that the Company would not have entered into this Agreement but for the inclusion of such covenants herein. The parties agree that the prevailing party shall be entitled to all costs and expenses, including reasonable attorneys fees and costs, in addition to any other remedies to which either may be entitled at law or in equity. Should a court determine, however, that any provision of the covenants is unreasonable, either in period of time, geographical area, or otherwise, the parties hereto agree that the covenant should be interpreted and enforced to the maximum extent which such court deems reasonable. In the event of any violation of the provisions of this Section 3, the Executive acknowledges and agrees that the post-termination restrictions contained in this Section 3 shall be extended by a period of time equal to the period of such violation, it being the intention of the parties hereto that the running of the applicable post-termination restriction period shall be tolled during any period of such violation. In the event of a material violation by the Executive of this Section 3, any severance being paid to the Executive pursuant to this Agreement or otherwise shall immediately cease, and any severance previously paid to the Executive shall be immediately repaid to the Company."
" | (e) | Board Seat. Employee agrees to, and by executing this Agreement does hereby, resign as a member of the Board. In his capacity as a director, Employee also hereby waives notice of and consents to the holding of any special meetings of the Board held prior to the date hereof to discuss the subject matter of this Agreement and agrees and consents that any and all lawful business transacted at such meeting(s) (or any adjournment(s) thereof) were valid and legal and of the same force and effect as if such meeting(s) (or adjourned meeting) were held after notice duly given. ---|---|--- "
"1.4 Cause means (i) the continued failure by the Eligible Employee to substantially perform the Eligible Employees duties with the Employer (other than any such failure resulting from the Eligible Employees incapacity due to physical or mental illness) which is not remedied within thirty (30) days after receipt of written notice from the Company specifying such failure, (ii) the engagement by the Eligible Employee in acts of fraud, embezzlement, dishonesty, gross negligence, willful misconduct, bad faith or moral turpitude, (iii) the Eligible Employees indictment for, conviction of or plea of nolo contendere to any felony or of any other crime involving fraud, breach of trust or misappropriation, (iv) a breach by the Eligible Employee of his or her fiduciary duties that has a material adverse effect on the Companys business, operations, prospects or reputation or (iv) any breach or violation of any agreement or written code of conduct relating to the Eligible Employees employment with the Employer that materially and adversely affects the Company or any of its Affiliates."
"1.16 Person shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) the Company or any of its Affiliates, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities or (iv) a corporation owned, directly or"
"1.23 Severance Date means, subject to the terms of Section 1.21, the effective date on which an Eligible Employees employment by the Employer terminates due to a Severance as specified in a prior written notice by the Company or the Eligible Employee, as the case may be, delivered to the other pursuant to Section 5.10."
"(ii) A cash payment in satisfaction of any unearned performance cash awards granted to such Eligible Employee prior to the Change in Control, equal to the product of (A) the Companys actual achievement of the applicable performance measures for the completed fiscal year(s) prior to the beginning of the fiscal year in which the Severance Date occurs, as determined by the Compensation Committee in its sole discretion; multiplied by (B) a fraction the numerator of which shall be the number of days the Eligible Employee was employed by the Employer during the performance cycle prior to the Eligible Employees Severance Date and the denominator of which shall be the total number of days in the incomplete performance cycle. Any such performance cash award shall be paid in accordance with its terms."
"2.2 280G Payments. This Section 2.2 shall apply with respect to any Eligible Employee who, taking into account the benefit provided under the Plan and all other payments that would be deemed to be parachute payments within the meaning of Code Section 280G (collectively, the 280G Payments), would be subject to the excise tax under Code Section 4999 (a Section 2.2 Participant). Notwithstanding any provision of the Plan to the contrary, a Section 2.2 Participants benefit under the Plan shall be reduced to an amount equal to (i) 2.99 times the Section 2.2 Participants base amount (within the meaning of Code Section 280G) (ii) minus the value of all other payments that would be deemed to be parachute payments within the meaning of Code Section 280G (but not below zero); provided, however, that the reduction provided by this sentence shall not be made if it would result in a smaller aggregate after-tax payment to the Section 2.2 Participant after taking into account all applicable federal, state and local taxes, including the excise tax under Code Section 4999. Unless the Company and the Section 2.2 Participant otherwise agree in writing, all determinations required to be made under this Section, including the manner and amount of any reduction in the Section 2.2 Participants benefits under this Section 2, and the assumptions to be used in arriving at such determinations, shall be made in writing in good faith by the accounting firm serving as the Companys independent public accountants immediately prior"
"3.3 The Plan Administrator is empowered, on behalf of the Plan, to engage accountants, legal counsel and such other personnel as it deems necessary or advisable to assist it in the performance of its duties under the Plan. The functions of any such persons engaged by the Plan Administrator shall be limited to the specified services and duties for which they are engaged, and such persons shall have no other duties, obligations or responsibilities under the Plan. Such persons shall exercise no discretionary authority or discretionary control respecting the management of the Plan. All reasonable expenses thereof shall be borne by the Employer."
"4.1 The Plan may be amended or terminated by the Board at any time; provided, however, that, except as provided in Section 3.1 above and Section 4.2 below, any termination of the Plan or modification of the Plan in any material manner shall be void and of no force and effect if such action is taken during any of the following periods and is not required by law: (i) during the period commencing on a Change in Control and ending on the first anniversary of the Change in Control or (ii) during the period commencing on a date twelve (12) months prior to a Change in Control, or (iii) during the period commencing on a date twelve (12) months prior to a Potential Change in Control and ending on the date that is the end of the Potential Change in Control Period."
"5.1 409A. Any deadline established by the Plan Administrator shall ensure that the payment of any benefit under Section 2.1 is made no more than two and one- half months after the end of the calendar year in which the Severance occurs pursuant to the short-term deferral exemption of Code Section 409A. Notwithstanding anything contained herein to the contrary, to the extent required by Code Section 409A, if the period during which the Eligible Employee is permitted to review and revoke the Severance Agreement and Release overlaps two taxable years (regardless of whether such agreement becomes effective during such first taxable year), then any amount payable that is non-qualified deferred compensation within the meaning of Code Section 409A and that would have otherwise been paid during such first taxable year shall instead be withheld and paid in the second taxable year."
"5.4 Notice Period. If an Employer is obligated by law, contract, policy or otherwise to pay severance, a termination indemnity, notice pay, or the like, or if an Employer is obligated by law to provide advance notice of separation (Notice Period), then any Severance Payment hereunder shall be reduced by the amount of any such severance pay, termination indemnity, notice pay or the like, as applicable, and by the amount of any compensation received during any Notice Period."
"5.7 Successors. This Plan shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and assigns of the parties, including, without limitation, each Eligible Employee, present and future, and any successor to the Employer. If a Severed Employee shall die while any amount would still be payable to such Severed Employee under the Plan if the Severed Employee had continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Plan to the executor, personal representative or administrators of the Severed Employees estate."
"5.11 No Right to Other Benefits. Nothing in the Plan shall require the Employer to provide any payment that duplicates any payment, benefit, or grant that an Eligible Employee is entitled to receive under any Employer compensation or benefit plan, award agreement, or other arrangement. Any severance benefit provided under any Employer compensation or benefit plan, award agreement, or other arrangement, including without limitation the Electronic Arts Inc. Severance Benefit Plan, shall offset, on a dollar for dollar basis, any benefits owed under the Plan. The amounts paid or provided under the Plan shall not be treated as compensation for purposes of determining any benefits payable under any Employer retirement, life insurance, or other employee benefit plan unless otherwise required by the terms of the plan or local law."
"5.12 Plan Conflicts/Integration. Except to the extent explicitly provided in this Plan, any awards made under any Employer compensation or benefit plan or program shall be governed by the terms of that plan or program and any applicable award agreement thereunder as in effect from time to time. The Plan, as amended from time to time, constitutes the entire agreement between the Company and any Eligible Employee concerning the subject matter hereof and supersedes in its entirety any and all plans, agreements and understandings related to the subject matter hereof except as otherwise stated in this Section 5.12 or the Plan."
"5.14 ERISA. Because the Plan is not intended to provide retirement income or result in the systematic deferral of income to termination of employment, the Plan is intended to be an employee welfare benefit plan within the meaning of Section 3(1) of the ERISA, and not an employee pension benefit plan within the meaning of Section 3(2) of ERISA. However, to the extent that the Plan (without regard to this Section 5.14) is determined to be an employee pension benefit plan because (i) with respect to certain participants the Plan provides for payments in excess of the amount specified in 29 C.F.R. Section 2510.3-2(b) (the Severance Pay Regulation) and (ii) the facts and circumstances indicate the Plan (without regard to this Section 5.14) is not otherwise an employee welfare benefit plan, then the following provisions shall apply: The Plan shall be treated as two plans, one of which provides the benefits required by Section 2 not in excess of the safe harbor described in the Severance Pay Regulation and the other of which provides for all other payments and benefits required by Section 2 pursuant to a plan maintained primarily for the purpose"
"WHEREAS, as an inducement to serve and in consideration for such services, the Company has agreed to indemnify the Executive for claims for damages arising out of or relating to the performance of such services to the Company in accordance with the terms and conditions set forth in a separate agreement, which indemnification agreement is attached as an exhibit hereto and is incorporated herein by reference; and"
"1.1The term Accrued Obligations, when used in the case of the Executives death or disability shall mean the sum of (1) that portion of the Executives Base Salary that was not previously paid to the Executive from the last payment date through the Date of Termination and (2) any Severance Benefit due."
"1.13The term Separation from Service shall mean the Executives termination of employment with the Company Group for any reason which constitutes a separation from service under Code Section 409A. Notwithstanding the foregoing, the Executives employment relationship with the Company Group is considered to remain intact while the individual is on military leave, sick leave or other bona fide leave of absence if there is a reasonable expectation that the Executive will return to perform services for the Company Group and the period of such leave does not exceed six months, or if longer, so long as the Executive retains a right to reemployment with the Company under applicable law or contract. Solely for purposes of determining whether a Separation from Service has occurred, the Company will determine whether the Executive has terminated employment with the Company Group based on whether it is reasonably anticipated by the Company and the Executive that the Executive will permanently cease providing services to the Company Group, whether as an employee or independent contractor, or that the services to be performed by the Executive, whether as an employee or independent contractor, will permanently decrease to no more than 20% of the average level of bona fide services performed, whether as an employee or independent contractor, over the immediately preceding 36-month period or such shorter period during which the Executive was performing services for the Company Group. If a leave of absence occurs during such 36-month or shorter period which is not considered a Separation from Service, unpaid leaves of absence shall be disregarded and the level of services provided during any paid leave of absence shall be presumed to be the level of services required to receive the compensation paid with respect to such leave of absence."
"2.2Term. The Executives employment shall be for an initial term of one (1) year (the Initial Term), commencing on the Effective Date. The Executives employment shall be automatically extended on the day after the second year anniversary of the Effective Date (Automatic Extension), and on each anniversary date thereof, for additional one (1) year periods unless the Company provides notice that it does not intend to extend the term of the Executives employment at least sixty (60) days in advance of the end of the Initial Term or any Automatic Extension."
"2.3Duties and Responsibilities. The Executive shall report to the Board. In such position, the Executive shall have such duties, authority, and responsibility as are consistent with the Executives position as the Chief Executive Officer of the Company or as are otherwise delegated to him from time to time by the Board."
"For purposes of this provision, no act, or failure to act, on the part of the Executive shall be considered willful unless 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, upon the instructions of the Chairman or another Board Member of Company, or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interests of the Company and its affiliated companies. 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 not less than two-thirds (2/3) of the entire membership of the Board then in office, excluding the Executive, at a meeting of the Board called and held for such purpose (after reasonable notice is provided to the Executive and the Executive is given an opportunity, together with counsel, to be heard before the Board) finding that, in the good faith opinion of the Board, the Executive is guilty of the conduct described in subparagraph (i)or (ii)above, and specifying the particulars thereof in detail."
"(iv)the appropriation (or attempted appropriation) of a material business opportunity of the Company without first presenting it to the Company in writing and giving it a reasonable opportunity to accept or reject such opportunity, including attempting to secure or securing any personal profit in connection with any transaction entered into on behalf of the Company;"
"The Executives employment hereunder may be terminated for Good Reason. For all purposes under this Agreement, Good Reason shall mean the occurrence of one or more of the following events arising without the express written consent of the Executive, but only if the Executive notifies the Company in writing of the event within sixty (60)days following the occurrence of the event, the event remains uncured after the expiration of thirty (30)days from receipt of such notice, and the Executive resigns effective no later than thirty (30)days following the Companys failure to cure the event:"
"4.5Date of Termination. For purposes of this Agreement, the Date of Termination shall mean the effective date of termination of the Executives employment hereunder, which date shall be (a)if the Executives employment is terminated by the Executives death, the date of the Executives death, (b)if the Executives employment is terminated because of the Executives Disability, the Disability Effective Date, (c)if the Executives employment is terminated by the Company (or applicable affiliated company) for Cause or by the Executive for Good Reason, the date on which the Notice of Termination is given, and (d)if the Executives employment is terminated for any other reason, the date specified in the Notice of Termination, which date shall in no event be earlier than the date such notice is given; provided, however, that if within thirty (30)days after any Notice of Termination is given, the party receiving such Notice of Termination notifies the other party that a dispute exists concerning the termination, the Date of Termination shall be the date on which the dispute is finally determined, either by mutual written agreement of the parties or by a final judgment, order or decree of a court of competent jurisdiction (the time for appeal therefrom having expired and no appeal having been perfected)."
"(d)Cause; Other than for Good Reason. If the Executives employment is terminated for Cause during the Employment Term, this Agreement shall terminate without further compensation obligations to the Executive other than the obligation to pay to the Executive Base Salary through the Date of Termination plus the amount of any compensation previously deferred by the Executive, in each case to the extent theretofore unpaid. If the Executive voluntarily terminates the Executives employment during the Employment Term, and such termination is Without Good Reason, this Agreement shall terminate without further compensation obligations to the Executive, other than for the that portion Executives Base Salary that was not previously paid to the Executive from the last payment date through the effective date of the Executives voluntary termination and the timely payment or provision of the Other Benefits, as provided in any applicable plan, and the Executive shall have no further obligations nor liability to the Company. In such case, any amounts owed to the Executive shall be paid to the Executive in a lump sum in cash within ninety (90)days of the Date of Termination subject to applicable laws and regulations."
"6.2Non-Competition. During Executives employment with the Company and for so long as Executive receives any Severance Benefit or is receiving any Severance Amount provided under this agreement in respect of the termination of his employment, Executive shall not, in the Restrictive Area (as defined below), be engaged as an officer or executive of, or in any way be associated in a management or ownership capacity with any corporation, company, partnership or other enterprise or venture which conducts a business which is in direct competition with the business of the Company; provided, however, that Executive may own not more than two percent (2%) of the outstanding securities, or equivalent equity interests, of any class of any corporation, company, partnership, or either enterprise that is in direct competition with the business of the Company, which securities are listed on a national securities exchange or traded in the over-the-counter market. For purposes of this Agreement, a lump sum payment equivalent made to Executive shall be judged in relation to his most recent annual Base Salary to determine whether Executive is continuing to receive a Severance Benefit or Severance Amount and shall be measured from the date such payment is received. It is expressly agreed that the remedy at law for breach of this covenant is inadequate and that injunctive relief shall be available to prevent the breach thereof. For purposes of this Agreement, Restrictive Area shall mean anywhere in the United States; provided, however, if a court determines such a geographic scope is unenforceable, the Restricted Area shall be anywhere within the Northeastern United States; provided, however, if a court determines such a geographic scope is unenforceable, the Restricted Area shall be anywhere within the State of New York."
"6.4 Return of Company Property. On the date of the Executives termination of his employment with the Company for any reason (or at any time prior thereto at the Companys request), Executive shall return all property belonging to the Company or its affiliates (including, but not limited to, any Company provided laptops, computers, cell phones, wireless electronic mail devices or other equipment, or documents and property belonging to the Company). Executive may retain the Executives rolodex and similar address books provided that such items only include contact information.]"
"6.5 Notwithstanding anything herein to the contrary, in the event Executive breaches, in any material respect, any of the covenants set forth in this Article Six hereof, whether before or after the termination of Term under this Agreement, Company shall have the right to discontinue any or all remaining Severance Amount and other payments. Such discontinuance of Severance Amount and other payments shall be in addition to and shall not limit any and all other rights and remedies that Company may have against the Executive."
"7.16Modifications and Waivers. Notwithstanding any other provision of this Agreement, the indemnification provisions contained in the Indemnification Agreement in Exhibit B hereto may be amended from time to time to reflect changes in Nevada law or for other reasons; provided, that no other modifications shall be made that are not identical or substantially similar to those modifications that are made to all then-current directors and officers."
"7.17Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand or (ii) if mailed by certified or registered mail with postage prepaid, on the third day after the date on which it is so mailed:"
"3.Release of Claims. In exchange for the consideration provided in Section1 above, Executive hereby expressly waives, releases, acquits and forever discharges the Company and its parents, successors, assigns, divisions, subsidiaries, affiliates, partners, officers, directors, executives, investors, shareholders, managers, supervisors, employees, agents, attorneys and representatives (hereinafter the Released Parties or Releasees), from any and all claims, demands, and causes of action which Executive has or claims to have, whether known or unknown, of whatever nature, which exist or may exist as of the date of Executives execution of this Agreement. As used in this paragraph, claims, demands, and causes of action include, but are not limited to, contract claims, equitable claims, fraud claims, tort claims, discrimination claims, harassment claims, retaliation claims, personal injury claims, constructive discharge claims, emotional distress claims, public policy claims, wage claims, claims for debts, accounts, attorneys fees, compensatory damages, punitive damages, and/or liquidated damages, claims for the Companys stock or options to purchase the Companys stock, claims for vesting or accelerated vesting of options to purchase the Companys Common Stock, claims for defamation, and any and all claims arising under the Americans with Disabilities Act, the Family and Medical Leave Act, or any other federal or state statute governing employment, including but not limited to Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, 29 U.S.C.  621 et seq., and any other federal, state or local statute governing any aspect of the employer/employee relationship."
8.Non-Admission of Liability. Executive understands that the Company denies that it has engaged in any wrongdoing whatsoever in connection with its dealings with Executive and that nothing in this Agreement shall constitute or be treated as an admission of any wrongdoing or liability on the part of the Company and/or the Released Parties.
"10.Acceptance of Agreement. Executive has up to twenty-one (21)days after the Termination Date to consider this Agreement and Executive may revoke this Agreement at any time during the first seven (7)days following Executives execution of this Agreement by delivering written notice of revocation to the Secretary of the Companys Board of Directors, no later than five (5:00) p.m. on the seventh (7th) day after execution. Executive received this Agreement on , 2016. The settlement offer contained in this Agreement will automatically expire if this Agreement, fully executed by Executive, is not received by the Secretary of the Companys Board of Directors, on or before , 201_."
"12.No Filing of Claims. Executive represents and warrants that Executive does not presently have on file, and further represents and warrants that Executive will not hereafter file, any claims, charges, grievances or complaints against the Company and/or the Released Parties in or with any administrative, state, federal or governmental entity, agency, board or court, or before any other tribunal or panel or arbitrators, public or private, based upon any actions or omissions by the Company and/or the Released Parties occurring prior to the date of Executives execution of this Agreement."
"15.Tax Liability. Executive acknowledges and agrees that he has obtained no advice from Releasees (defined above) and that neither Releasees, nor their attorneys, have made any representation regarding the tax consequences, if any, of Executives receipt of the settlement amounts and other consideration provided for in this Agreement. Executive further acknowledges and agrees that he is personally responsible for the payment of all federal, state and local taxes that are due, or may be due, for any payments and other consideration received by Executive under this Agreement. Executive agrees to indemnify the Company and hold the Company harmless for any and all taxes, penalties and/or other assessments that the Company is, or may become, obligated to pay on account of any payments and other consideration made to Executive under this Agreement."
"17.Confidentiality. Executive understands and agrees that the terms and existence of this Agreement and any other terms or information relating to the resignation of Executives employment with the Company are strictly confidential and may not be disclosed to any other person or entity, with the exception of Executives immediate family members and legal and financial advisors."
"18.Continuing Obligations. Executive and Company understand and agree that certain obligations set forth in the Executive Employment Agreement between the Parties of [___________], 2016, as it may have been amended from time to time, a copy of which is attached hereto (at the time of execution) as ExhibitA and incorporated herein by this reference, continue beyond termination of his employment with the Company. Those obligations include those set forth in Sections[______] of that agreement. Executive further understands and agrees that a breach of any continuing obligation contained in the Companys Executive Employment Agreement shall also constitute a breach of this Agreement."
"EXECUTIVE UNDERSTANDS AND AGREES THAT EXECUTIVE MAY BE WAIVING SIGNIFICANT LEGAL RIGHTS BY SIGNING THIS AGREEMENT, AND REPRESENTS THAT EXECUTIVE HAS ENTERED INTO THIS AGREEMENT VOLUNTARILY, AFTER HAVING THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY OF EXECUTIVES OWN CHOOSING, WITH A FULL UNDERSTANDING OF AND IN AGREEMENT WITH ALL OF ITS TERMS."
"(ii) Severance Payments. Executive will be paid severance pay at a rate equal to Executives base salary in effect immediately before the date of termination, for twelve (12) months from the date of such termination of employment (the Continuance Period), to be paid periodically in accordance with the Companys normal payroll policies. Severance payments are conditioned on Executive signing a Release as described in Section 4(a). Any installment payments of severance pay that are delayed pending the signed Release and expiration of any"
"(iii) Bonus Payment. Executive will be paid a portion of Executives incentive compensation for the fiscal year in which Executive's employment terminates, pro-rated based on time employed during the fiscal year. If the bonus program is exempt from Code Section 409A, payment of the bonus will be made in a lump sum no later than the first Company payroll following the Release Deadline. If the bonus program is considered non-exempt deferred compensation under Code Section 409A, the bonus will be paid at the time originally scheduled under the bonus program unless action is taken to terminate the bonus program and accelerate payment in a manner permitted under Code Section 409A."
"(v) Required Delay of Certain Payments. If Executive is a specified employee at the time Executive becomes eligible to receive a payment under this Section 3(b), and the payment is not exempt from Section 409A of the Code, the portion of the payment that constitutes deferred compensation (within the meaning of Code Section 409A) shall be made no earlier than 6 months following Executive's termination date. Determination of whether Executive is a specified employee will be made under Treas. Reg.  1.409A-1(i) (or any successor thereto). Any payments delayed under this provision shall be paid immediately following the end of the six month period. Upon Executive's death during the 6 month period, any delayed payments will be paid in a lump sum as soon as practicable following Executive's death."
"(e) Exclusive Remedy. In the event of a termination of Executives employment as set forth in Section 3(a) or (b) of this Agreement, the provisions of Section 3 are intended to be and are exclusive and in lieu of any other rights or remedies to which Executive 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). Executive will be entitled to no benefits, compensation or other payments or rights upon a termination of employment other than those benefits expressly set forth in Section 3 of this Agreement. Notwithstanding the foregoing, this Section 3(e) shall not apply to any benefits, compensation or other payments or rights due under Company benefit plans (other than plans providing salary continuation severance benefits), such as but not limited to the Retiree Medical Benefit Plan."
"(a) Release of Claims Agreement. The receipt of any severance payments or benefits (other than the accrued benefits set forth in either Sections 3(a)(i) or 3(b)(i)) pursuant to this Agreement is subject to Executive signing and not revoking a release of all claims against the Company and its officers, directors and affiliates in a form determined by the Company (the Release). Executive must sign and deliver the signed Release to the Company by the due date set by the Company, which will be no later than 60 days following Executive's termination date. The Company will provide the Release to Executive at least 21 days before the due date for return of the"
"(b) Restrictive Covenants. Notwithstanding the terms of any other agreement between the Company and Executive, even if it provides for negation of covenants from Executive to the Company in the event of a Change in Control, in exchange for this Agreement, Executive agrees to adhere to the following covenants during Executive's employment and after termination of employment:"
(vii) Executives continued failure to perform Executives employment duties after Executive has received a written demand of performance from the Company which specifically sets forth the factual basis for the Companys belief that Executive has not substantially performed his duties and has failed to cure such non-performance to the Companys satisfaction within 10 business days after receiving such notice.
"the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets, other than a sale or disposition by the Company of all or substantially all of the Company's assets to an entity, at least 60% 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 Company immediately prior to such sale. "
"7. Successors and Assigns. This Agreement is binding on and is for the benefit of the Company and its successors and assigns; including but not limited to any successor of the Company, direct or indirect, resulting from purchase, merger, consolidation, or otherwise. The Company must ensure that any asset sale or other transaction in which the Company's obligations under this Agreement are not assumed by the successor as a matter of law is entered into only under terms providing for the successor to assume the Company's obligations under this Agreement. This Agreement is also binding on Executive and shall inure to the benefit of Executive, his personal or legal representatives, successors, heirs and assigns. No interest of Executive, or any right to receive any payment or distribution hereunder, will be subject in any manner to sale, transfer, assignment, pledge, attachment, garnishment, or other alienation or encumbrance of any kind, nor may such interest or right to receive a payment or distribution be taken, voluntarily or involuntarily, for the satisfaction of the obligation or debts, or other claims against, Executive, including claims for alimony, support, separate maintenance, and claims in bankruptcy proceedings. All of Executives rights under this Agreement will at all times be entirely unfunded, and no provision will at any time be made with respect to segregating ay assets of the Company or any affiliate for payment of any amounts due hereunder. Executive will have only the rights of a general unsecured creditor of the Company."
"(d) Entire Agreement. This Agreement, together with the Non-Solicitation Agreement, constitutes the entire agreement of the parties hereto and supersedes in their entirety all prior representations, understandings, undertakings or agreements (whether oral or written and whether expressed or implied) of the parties with respect to the subject matter hereof, including, but not limited to, any rights to any severance and/or change in control benefits set forth in Executives original offer letter and any prior severance agreement. No waiver, alteration, or modification of any of the provisions of this Agreement will be binding unless it is in a writing that specifically mentions this Agreement and that is signed by Executive and by an authorized officer of the Company (other than Executive)."
"If your employment with the Company terminates pursuant to this Section I, upon and following the Voluntary Termination Date, your other compensation and benefits continue to be governed by the terms of the plans in which you participate; provided however, that payments and benefits under this Section I are in lieu of any other involuntary separation benefits or severance payments which you may be eligible to receive from the Company; and if you receive severance pay and benefits under the Companys Change in Control Severance Plan, no payments will be made, or benefits provided, under this Agreement."
"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"
"B. Involuntary Termination Without Cause. If the Company terminates your employment for reasons other than Cause, and you fulfill your obligations as set forth in this Agreement, you shall be paid the following amounts (which you acknowledge would not be due you in the absence of this Agreement) on the Six-Month Delay Date (or if sooner, upon your death) or, with respect to the amount payable under Section II.B(ii), if later, in the fiscal year following the fiscal year in which the Involuntary Termination Date occurs, provided that, on or after the Involuntary Termination Date, and at least 10 days prior to the Six-Month Delay Date, (i)you execute and return to the Company 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:"
"(ii) a pro-rated annual bonus for the fiscal year in which the Involuntary Termination Date occurs, which lump sum amount shall be determined based on, for such fiscal year, the level of achievement of the applicable performance goals under the Companys Incentive Plan(s), the bonus-eligible percentage of your annual base pay in effect and the amount of base pay actually paid to you prior to the Involuntary Termination Date;"
"Benefits in any given calendar year shall not affect the expenses that are eligible for reimbursement or benefits to be provided pursuant to the Health Benefits in any other calendar year, except as specifically permitted by Treasury Regulation Section 1.409A-3(i)(iv)(B). Your right to the Health Benefits may not be liquidated or exchanged for any other benefit."
"In light of the unique character of your position with the Company, the business relationships you have developed and will continue to develop while employed by the Company, and your knowledge of the Companys business affairs including the Confidential Information (as defined below), and with the acknowledgment of the continuing consideration which you will receive from the Company as a member of its senior executive management team, and the personal financial security which is provided under this Agreement, or in the event of a change in control as defined in the Companys Change in Control Severance Plan, you agree to the following Restrictive Covenants:"
"You also recognize and agree that any breach or threatened or anticipated breach of any part of these Restrictive Covenants will result in irreparable harm to the Company, and that the remedy at law for any such breach or threatened breach will be inadequate. Accordingly, in addition to any other legal or equitable remedies that may be available to the Company, you agree that the Company shall be entitled to obtain an injunction, without posting a bond, to prevent any breach or threatened breach of any part of these Restrictive Covenants. You agree to reimburse the Company for all costs and expenses, including reasonable attorneys fees and costs, incurred by the Company in connection with the enforcement of its rights under this Agreement."
"In the event that any court of competent jurisdiction finds that the limitations set forth in these Restrictive Covenants are overly broad with respect to duration, geographic scope or scope of prohibited activities, such court shall have the authority to reduce the duration, area or activities of such provisions so as to be enforceable to the maximum extent compatible with applicable law, and such provisions shall then be enforced as modified. In the event that a court reduces the duration of the restriction, any unpaid amounts, as set forth above, shall be reduced on a pro rata basis."
"If you provide a written, unqualified opinion from your tax advisor to the Company stating that you are a non-resident alien not subject to 409A at the time of your termination of employment, or that 409A otherwise does not apply to you at that time, unless the Company has reason to believe that such opinion is more likely than not incorrect, the Company shall cooperate with you to amend this Agreement in a mutually satisfactory manner to cause any severance payments payable hereunder to be paid as soon as practicable following your termination of employment, and to otherwise remove references to Section 409A from this Agreement; provided that in no event shall such payments be made unless and until you have returned an executed Release Agreement (signed by you on or following your termination date) and any period within which you may revoke the Release Agreement pursuant to the terms thereof has expired without you having revoked the Release Agreement. The Company shall have no responsibility for any taxes or penalties you may incur on account of any such amendments, whether pursuant to 409A or otherwise."
"1\. The Company may from time to time consider the possibility of an acquisition by another company or other change of control, or may terminate Employees employment without cause or may cause Employee to resign his or her employment as a result of actions taken by the Company that materially and negatively change Employees employment relationship with the Company. The Compensation Committee of the Board of Directors of the Company (the Committee) recognizes that the risk of such events occurring can be a distraction to Employee and can cause Employee to consider alternative employment opportunities. The Committee has determined that it is in the best interests of the Company and its stockholders to assure that the Company will have the continued dedication and objectivity of Employee, notwithstanding the possibility that such events may occur."
3\. The Committee believes that it is imperative to provide Employee with certain severance benefits in certain instances upon Employees termination of employment. These benefits will provide Employee with enhanced financial security and incentive and encouragement to remain with the Company notwithstanding the possibility that certain events may occur that lead to the termination of Employees employment.
"(ii) Unless otherwise required by Section3(g), the Company will pay any severance payments set forth in Section3(a)(i) and Section3(b)(i) in a lump- sum payment payable within thirty (30)days following Employees termination date; provided, however, that no severance or other benefits, other than the accrued compensation set forth in Section3(a)(i) and Section3(b)(i), will be paid or provided until the release of claims discussed in Section3(a) and Section3(b) becomes effective and irrevocable, and such severance amounts or benefits otherwise payable between Employees termination date and the date such release becomes effective and irrevocable will be paid on the date the release becomes effective and irrevocable. If Employee should die before all of the severance amounts have been paid, such unpaid amounts will be paid in a lump-sum payment promptly following such event to Employees designated beneficiary, if living, or otherwise to the personal representative of Employees estate."
"(iii) Notwithstanding anything to the contrary in this Agreement, if Employee is a specified employee within the meaning of Section409A at the time of Employees termination (other than due to death), then the Deferred Compensation Separation Benefits that are payable within the first six (6)months following Employees separation from service, will become payable on the first payroll date that occurs on or after the date six (6)months and one (1)day following the date of Employees separation from service. All subsequent Deferred Compensation Separation Benefits, if any, will be payable in accordance with the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if Employee dies following Employees separation from service, but prior to the six (6)month anniversary of the separation from service, then any payments delayed in accordance with this paragraph will be payable in a lump sum as soon as administratively practicable after the date of Employees death and all other Deferred Compensation Separation Benefits will be payable in accordance with the payment schedule applicable to each payment or benefit. Each payment, installment and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Section1.409A-2(b)(2) of the Treasury Regulations."
"whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section4999, results in the receipt by Employee on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section4999 of the Code. If a reduction in severance and other benefits constituting parachute payments is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: reduction of cash payments; cancellation of awards granted contingent on a change in ownership or control (within the meaning of Code Section280G), cancellation of accelerated vesting of equity awards; and reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Employees equity awards. In no event shall Employee have any discretion with respect to the ordering of payment reductions."
"(b) Procedure. The Company and Employee agree that any arbitration will be administered by Judicial Arbitration& Mediation Services, Inc. (JAMS), pursuant to its Employment Arbitration Rules& Procedures (the JAMS Rules). The Arbitrator will have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or adjudication, motions to dismiss and demurrers, and motions for class certification, prior to any arbitration hearing. The Arbitrator will have the power to award any remedies available under applicable law, and the Arbitrator will award attorneys fees and costs to the prevailing party, except as prohibited by law. The Company will pay for any administrative or hearing fees charged by the Arbitrator or JAMS except that Employee will pay any filing fees associated with any arbitration that Employee initiates, but only so much of the filing fees as Employee would have instead paid had he or she filed a complaint in a court of law. The Arbitrator will administer and conduct any arbitration in accordance with California law, including the California Code of Civil Procedure, and the Arbitrator will apply substantive and procedural California law to any dispute or claim, without reference to rules of conflict of law. To the extent that the JAMS Rules conflict with California law, California law will take precedence. The decision of the Arbitrator will be in writing. Any arbitration under this Agreement will be conducted in San Mateo County, California."
"(a) General. Notices and all other communications contemplated by this Agreement will be in writing and will be deemed to have been duly given when personally delivered when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid or when delivered by a private courier service such as UPS, DHL or Federal Express that has tracking capability. In the case of Employee, mailed notices will be addressed to him or her at the home address which he or she most recently communicated to the Company in writing. In the case of the Company, mailed notices will be addressed to its corporate headquarters, and all notices will be directed to the attention of its President."
"(c) Equity Arrangements. In the event of a termination of employment described in this Section1, and notwithstanding any contrary provisions of the 2012 Equity Incentive Plan (or any predecessor plans or plans that may become the successors to such plan) and any equity incentive agreements (other than performance stock units or any other performance-based awards, as provided for below) entered into between the Company and the Executive pursuant to such plan or plans or otherwise, cause any such outstanding equity awards that are unvested or unexercisable and held by the Executive on the date of such termination of employment to remain outstanding (but not beyond the original expiration dates of such awards that are stock options or stock appreciation rights and such awards shall not otherwise vest or become exercisable except as provided herein) and, subject to a Change of Control occurring within nine (9)months following such date of such termination, to vest or become exercisable, as applicable, upon such Change of Control. To the extent a Change of Control does not occur within such nine (9)-month period, all such equity awards shall terminate at the end of such period. The performance stock units or other performance-based awards that the Executive holds, if any, shall be governed by the applicable award agreement and the 2012 Equity Incentive Plan (or any predecessor plans or plans that may become the successors to such plan); and"
"provided, however, that any amounts and benefits set forth in this Section1 shall be reduced by any and all other severance or other amounts or benefits paid or payable to the Executive as a result of the termination of his or her employment under any plan, program or agreement entered into with, or sponsored or maintained by, the Company."
"(c) Equity Arrangements. In the event of a termination of employment described in this Section2 and notwithstanding any contrary provisions of the 2012 Equity Incentive Plan (or any predecessor plans or plans that may become the successors to such plan) and any equity incentive agreements (other than performance stock units or any other performance-based awards, as provided for below) entered into between the Company and the Executive pursuant to such plan or plans or otherwise, cause any such outstanding equity awards that are unvested or unexercisable and held by the Executive on the date of such termination of employment to vest or become exercisable, as applicable, upon such termination. For the avoidance of doubt, the provisions of Sections 9(a), (b)and (c)of the 2012 Equity Incentive Plan (or any similar provisions of any predecessor plan or successor plan) shall not apply to Executives equity awards [granted on or after December9, 2016]. The performance stock units or other performance-based awards that the Executive holds, if any, shall be governed by the applicable award agreement and the 2012 Equity Incentive Plan (or any plans that may become the successors to such plan); and"
"provided, that the occurrence of any of the events listed in clauses (i)through (iv)shall not constitute Good Reason unless (x)the Executive shall have given notice of the event to the Company within ninety (90)days after it first existed, (y)the Company shall have failed to remedy the condition within thirty (30)days after the notice, and (z)the Executive actually terminates his or her employment within thirty (30)days after the expiration of the cure period."
"(b) Termination for Cause. In the event the Executives employment with the Company is terminated by the Company for Cause, the Executives employment terminates due to death or Disability, or the Executive terminates his or her employment with the Company other than during the specific time periods set forth in Section2 or for any reason other than Good Reason, the Executive shall not be entitled to the severance benefits or other considerations described herein by virtue of this Agreement."
"(c) Definition of Change of Control. For purposes of this Agreement, Change of Control shall mean the occurrence of any of the following, provided such occurrence is also a change in the ownership or effective control of the Company or a change in the ownership of a substantial portion of the assets of the Company, in each case as those terms are defined in Treasury Regulation Section1.409A-3(i)(5)(v), (i)the closing of a merger, consolidation, liquidation or reorganization of the Company into or with another company or other legal person, after which merger, consolidation, liquidation or reorganization the capital stock of the Company outstanding prior to consummation of the transaction is not converted into or exchanged for or does not represent more than 50% of the aggregate voting power of the surviving or resulting entity; (ii)the direct or indirect acquisition by any person (as the term person is used in Section13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended) of more than 50% of the voting capital stock of the Company, in a single or series of related transactions; or (iii)the sale, exchange, or transfer of all or substantially all of the Companys assets (other than a sale, exchange, or transfer to one or more entities where the stockholders of the Company immediately before such sale, exchange or transfer retain, directly or indirectly, at least a majority of the beneficial interest in the voting stock of the entities to which the assets were transferred)."
"(d) Definition of Cause. For purposes of this Agreement, Cause shall mean: (i)the conviction of the Executive by a court of competent jurisdiction of, or the pleading of guilty or nolo contendere to, any felony or any crime involving moral turpitude; (ii)gross negligence, breach of fiduciary duty or material breach of any confidentiality, non-competition or developments agreement or covenant in favor of the Company; (iii)the Executive shall have willfully and continually failed to substantially perform the Executives duties with the Company after a written demand for substantial performance is delivered by the Company, which demand specifically identifies the manner in which the Company believes that the Executive has not substantially performed the Executives duties pursuant to the disciplinary procedures of the Company, and such failure of substantial performance shall have continued for a period of thirty (30)days after such written demand; (iv)the Executive has been chronically absent from work (excluding vacations, illnesses or leaves of absences); (v)the commission by the Executive of an act of fraud, embezzlement or misappropriation against the Company; or (vi)the Executive shall have refused, after explicit notice, to obey any lawful resolution or direction by the Board which is consistent with his or her duties as an officer of the Company."
"(i) Notwithstanding anything to the contrary in this Agreement, if at the time the Executives employment terminates, the Executive is a specified employee, as defined below, any and all amounts payable under this Agreement on account of such separation from service that would (but for this provision) be payable within six (6)months following the date of termination, shall instead be paid on the next business day following the expiration of such six (6)-month period or, if earlier, upon the Executives death; except (A)to the extent of amounts that do not constitute a deferral of compensation within the meaning of Treasury regulation Section1.409A-1(b) (including without limitation by reason of the safe harbor set forth in Section1.409A-1(b)(9)(iii), as determined by the Company in its reasonable good faith discretion); (B)benefits which qualify as excepted welfare benefits pursuant to Treasury regulation Section1.409A-1(a)(5); or (C)other amounts or benefits that are not subject to the requirements of Section409A of the Internal Revenue Code of 1986, as amended (the Code), and the regulations and guidance promulgated thereunder (collectively, Section 409A)."
"(ii) For purposes of this Agreement, all references to termination of employment and correlative phrases shall be construed to require a separation from service (as defined in Section1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein), and the term specified employee means an individual determined by the Company to be a specified employee under Treasury regulation Section1.409A-1(i)."
"(i) No Employment Agreement; Effect on Other Agreements. 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, and nothing herein shall affect the Executives obligations under any non-competition, confidentiality, option or similar agreement between the Company and the Executive currently in effect or which may be entered into in the future."
"(ii) The Company shall engage an independent registered public accounting firm to make all determinations required to be made under this Section3(m), and shall bear all reasonable expenses with respect thereto. The independent registered public accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and the Executive. If the independent registered public accounting firm determines that no Excise Tax is payable with respect to the Transaction Payment (whether or not by reason of payment to the Executive of a Reduced Payment), it shall furnish the Company and Executive with detailed supporting calculations of its determination that no Excise Tax will be imposed with respect to the Transaction Payment. All good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and the Executive."
"(c) conviction of Executive of, or Executive pleading guilty or nolo contendere to, a felony (other than a violation of a motor vehicle or moving violation law) or a misdemeanor if such misdemeanor (i)materially damages the Company or any of its Affiliates or (ii)involves the commission of a criminal act against the Company or any of its Affiliates; or"
"4.1. Termination Without Cause or by Executive for Good Reason. If during the Term Executives employment is terminated by the Company without Cause or by Executive for Good Reason, Executive will be entitled to one times (1.0x) Executives annual base salary as of the date of termination, payable in a lump-sum on the first payroll date immediately following the date of termination or the effective date of the general release referenced in Section4.2, whichever is later, subject to the conditions set forth in Section4.2. The payment under this Section4.1 is intended to constitute a separation payment within the meaning of Section409A (as defined below) and will be paid, if at all, in all events within the Section409A short-term deferral period. Executive shall also be entitled to any other benefits which may be owing in accordance with the Companys policies or applicable law. In the event that Executive is rehired by the Company or any of its Affiliates during the period before Executive has received payment under this Section4.1, Executive will no longer be entitled to such payment beginning on the rehire date."
"4.2. Condition to Payment. All payments due to Executive under this Section4 will be (a)contingent upon execution by Executive (or Executives legal representatives) of a general release of all claims to the maximum extent permitted by applicable law against the Company, its Affiliates and its current and former stockholders, directors, members, officers, managers, employees and agents, in such form as determined by the Company in its sole discretion, and such release becoming effective and (b)forfeited and subject to repayment if Executive fails to comply with his obligations under this Agreement, including, without limitation, the restrictions on activities of Executive set forth in Section5 and under any other agreement to which the Company (or any of its Affiliates) and Executive are a party. The Company will provide the form of general release within ten (10)days following termination of Executives employment, and Executive will be required to return the executed general release within thirty (30) days of receipt from the Company, unless local, state, or federal law requires that Executive be allowed a longer period of time to return the executed general release."
"(c) All reimbursements for costs and expenses under this Agreement shall be paid in no event later than the end of the calendar year following the calendar year in which Executive incurs such expense. With regard to any provision herein that provides for reimbursement of costs and expenses or in- kind benefits, except as permitted by Section409A, (i)the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (ii)the amount of expenses eligible for reimbursements or in-kind benefits provided during any taxable year shall not affect the expenses eligible for reimbursement or in-kind benefits to be provided in any other taxable year, provided, however, that the foregoing clause (ii)shall not be violated with regard to expenses reimbursed under any arrangement covered by Section105(b)of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect."
"iii.there shall occur (A) any sale, lease, exchange or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the assets of the Company, other than a sale or disposition by the Company of all or substantially all of the Companys assets to an entity, at least 50% of the combined voting power of the voting securities of which are owned by persons (as defined above) in substantially the same proportion as their ownership of the Company, as applicable, immediately prior to such sale or (B) the approval by stockholders of the Company of any plan or proposal for the liquidation or dissolution of the Company, as applicable;"
"4.3 Notices. Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered personally, telegraphed, telexed, sent by facsimile transmission or sent by certified, registered or express mail, postage prepaid. Any such notice shall be deemed given when so delivered personally, telegraphed, telexed or sent by facsimile transmission or, if mailed, five days after the date of deposit in the United States mails as follows:"
"4.5 Waivers and Amendments. This Agreement may be amended, superseded, canceled, renewed or extended, and the terms hereof may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party of any such right, power or privilege nor 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 such right, power or privilege."
"5.2. Non-Disclosure of Confidential Information. Executive will be given access to and provided with the Companys and its Affiliates sensitive, confidential, proprietary and trade secret information during the Term. Executive shall not, during the Term or at any time thereafter, directly or indirectly, disclose, reveal, divulge or communicate to any Person (other than authorized officers, directors and employees of the Company) or use or otherwise exploit for Executives own benefit or for the benefit of anyone (other than the Company), any Confidential Information. Executive shall not have any obligation to keep confidential any Confidential Information if and to the extent disclosure thereof is specifically required by applicable law; provided, however, that in the event disclosure is required by applicable law, Executive shall, to the extent reasonably possible, provide the Company with prompt notice of such requirement prior to making any disclosure so that the Company may seek an appropriate protective order. Promptly upon termination, for any reason, of Executives employment with the Company, Executive agrees to deliver to the Company all property and materials within Executives possession or control which belong to the Company or any of its Affiliates which contain Confidential Information."
"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."
"5.4. Notification Obligations. Executive agrees that during the term of the restrictions in Section5.1, Executive shall promptly inform the Company in writing of the identity of any new employer, the job title of Executives new position and a description of any services to be rendered to that employer. Executive will communicate Executives obligations under this Agreement to each such new employer."
"6.1. Affiliate means a Person, including a joint venture entity, that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified. An entity will be deemed an Affiliate of the Company for purposes of this definition only for such periods as the requisite ownership or control relationship is maintained."
"6.3. Confidential Information means any sensitive, confidential, proprietary or trade secret information with respect to the Company or any of its Affiliates or the Business, including, but not limited to, methods of operation, customer lists, products, prices, fees, costs, technology, formulas, inventions, trade secrets, know-how, software, marketing methods, plans, personnel, suppliers, competitors, markets or other specialized information or proprietary matters; provided that, there shall be no obligation hereunder with respect to information that (a)is generally available to the public on the Effective Date or (b)becomes generally available to the public other than as a result of a disclosure not otherwise permissible hereunder."
"(a) It is the intention of the parties to this Agreement that no payment or entitlement pursuant to this Agreement will give rise to any adverse tax consequences to Executive under Section409A of the Internal Revenue Code of 1986, as amended (the Code), and the Treasury Regulations and other interpretive guidance issued thereunder, including that issued after the Effective Date (collectively, Section409A). The Agreement shall be interpreted to that end and, consistent with that objective and notwithstanding any provision herein to the contrary, the Company may unilaterally take any action deemed necessary or desirable to amend any provision herein to avoid the application of or excise tax under Section409A. The Company shall consult with Executive in good faith regarding implementation of this Section13.4; provided that, neither the Company nor its employees or representatives shall have liability to Executive with respect hereto."
"B. Involuntary Termination Without Cause. If the Company terminates your employment for reasons other than Cause, and you fulfill your obligations as set forth in this Agreement, you shall be paid the amounts set forth in this Section I.B. (which you acknowledge would not be due you in the absence of this Agreement) as soon as practicable after the Involuntary Termination Date but in no event later than 60 days after the Involuntary Termination Date; provided, that if you are, as of the Involuntary Termination Date, a specified employee within the meaning of 409A as determined in accordance with the methodology duly adopted by the Company as in effect on the Involuntary Termination Date, then such amounts shall instead be paid on the first business day following the date which is six months after the Involuntary Termination Date (the Six-Month Delay Date) (or if sooner, upon your death); and further provided that the amount payable under Section I.B(ii) will be paid in the fiscal year following the fiscal year in which the Involuntary Termination Date occurs, if later than as otherwise specified herein. Payment of the amounts set forth in Section I.B are conditioned upon and subject to the requirement that, on or after the Involuntary Termination Date, and at least 10 days prior to the Six-Month Delay Date or, if applicable, at least 10 days prior to the last day of the aforementioned 60 day period, (i)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:"
"If your employment with the Company terminates pursuant to this Section I, upon and following the Involuntary Termination Date, your other compensation and benefits continue to be governed by the terms of the plans in which you participate; provided however, that payments and benefits under this Section I are in lieu of any other involuntary separation benefits or severance payments which you may be eligible to receive from the Company; and if you receive severance pay and benefits under the Companys Change in Control Severance Plan, no payments will be made, or benefits provided, under this Agreement."
"In the event that, as of the Involuntary Termination Date, you are not a specified employee (as described above), and the 60 day period following your Involuntary Termination Date specified herein for payment of any of the amounts due to you under this Section I.B. spans two calendar years, any such payment will be made in the second calendar year."
"If you provide a written, unqualified opinion from your tax advisor to the Company stating that you are a non-resident alien not subject to 409A at the time of your termination of employment, or that 409A otherwise does not apply to you at that time, unless the Company has reason to believe that such opinion is more likely than not incorrect, the Company shall cooperate with you to amend this Agreement in a mutually satisfactory manner to cause any severance payments payable hereunder to be paid as soon as practicable following your termination of employment, and to otherwise remove references to Section 409A from this Agreement; provided that in no event shall such payments be made unless and until you have returned an executed Release Agreement (signed by you on or following your termination date) and any period within which you may revoke the Release Agreement pursuant to the terms thereof has expired without you having revoked the Release Agreement. The Company shall have no responsibility for any taxes or penalties you may incur on account of any such amendments, whether pursuant to 409A or otherwise."
"9\. Governing Law; Jurisdiction. Without reference to any principles concerning choice of law, this Release Agreement shall be governed and interpreted in accordance with the laws of the State of Delaware. Any action arising out of or related to this Release Agreement shall be brought in the state or Federal courts located in Pittsburgh, Pennsylvania, and Releasor and the Company consent to the jurisdiction and venue of such courts."
"This Change of Control Severance Agreement (the Agreement) is made and entered into by and between [] (Executive) and Quality Systems, Inc., a Delaware corporation (the Company), effective as of the date of Executives signature below (the Effective Date). If the Company does not receive a signed copy of this Agreement from Executive by [], 2016, this Agreement shall be without force or effect."
"1.The Compensation Committee (the Committee) of the Board of Directors of the Company (the Board) believes that it is in the best interests of the Company and its stockholders (i)to assure that the Company will have the continued dedication and objectivity of Executive, notwithstanding the possibility, threat, or occurrence of a Change of Control and (ii)to provide Executive with an incentive to continue Executives employment prior to a Change of Control and to motivate Executive to maximize the value of the Company upon a Change of Control for the benefit of its stockholders. "
"(a)Termination without Cause or Resignation for Good Reason in Connection with a Change of Control. If the Company terminates Executives employment with the Company without Cause (and not for death or Disability) or if Executive resigns from such employment for Good Reason, and, in each case, such termination occurs during the Change of Control Period, then subject to Section3, Executive will receive the following:"
"(iii)Pro-rated Bonus Payment. Executive will receive a lump-sum payment within thirty (30)days after the latter of the Release Deadline and the date on which Executives bonus would otherwise be payable had Executive remained an active employee in an amount equal to the product of (a)the annual bonus, if any, that Executive would have earned for the entire fiscal year in which Executive separates from service with the Company, based on the level of achievement of the applicable performance goals"
"(vii)Legal Fees. Within thirty (30)days after submission of an itemized bill to the Company, the Company will reimburse Executive for up to $5,000 in reasonable legal fees and expenses incurred within 12 months following the Executives termination date (or the consummation of the Change of Control if later) that are related to securities and tax law compliance issues arising from Executives separation from service. For avoidance of doubt, no reimbursement will be available under this Agreement for any legal fees and expenses relating to a claim or other action arising from, or relating to, Executives employment relationship with the Company, the termination of that relationship or this Agreement, including any claim or other action against the Company or any of its current or former officers, directors, employees, agents, investors, attorneys, stockholders, administrators, affiliates, benefit plans, plan administrators, insurers, trustees, divisions and subsidiaries and predecessor and successor corporations and assigns."
"(b)Confidential Information and Invention Assignment Agreements. Executives receipt of any payments or benefits under Section2 (other than the accrued benefits set forth in Section 2(a)(i)) will be subject to Executive continuing to comply with the terms of the [Proprietary Information and Inventions Agreement/Agreement for Protection of Company Information], between the Company and Executive, as such agreement may be amended from time to time."
(iv)Any amount paid under this Agreement that satisfies the requirements of the short-term deferral rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations will not constitute Deferred Payments for purposes of clause (i)above. Any amount paid under this Agreement that qualifies as a payment made as a result of an involuntary separation from service pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations that does not exceed the Section 409A Limit (as defined below) will not constitute Deferred Payments for purposes of clause (i)above.
"4.Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i)constitute parachute payments within the meaning of Section 280G of the Code, and (ii)but for this Section4, would be subject to the excise tax imposed by Section4999 of the Code, then Executives benefit under Section3 and under any such other agreement (including any employment agreement or equity award agreement under the Companys Amended and Restated 1998 Stock Option Plan, Companys Second Amended and Restated 2005 Stock Option and Incentive Plan or the Companys 2015 Equity Incentive Plan) will be either: "
"(i)Any Exchange Act Person becomes the Owner, directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Companys then-outstanding securities other than by virtue of a merger, consolidation or similar transaction. Notwithstanding the foregoing, a Change of Control will not be deemed to occur (A)on account of the acquisition of securities of the Company directly from the Company, (B)on account of the acquisition of securities of the Company by an investor, any affiliate thereof or any other Exchange Act Person that acquires the Companys securities in a transaction or series of related transactions the primary purpose of which is to obtain financing for the Company through the issuance of equity securities, or (C)solely because the level of Ownership held by any Exchange Act Person (the Subject Person) exceeds the designated percentage threshold of the outstanding voting securities as a result of a repurchase or other acquisition of voting securities by the Company reducing the number of shares outstanding, provided that if a Change of Control would occur (but for the operation of this sentence) as a result of the acquisition of voting securities by the Company, and after such share acquisition, the Subject Person becomes the Owner of any additional voting securities that, assuming the repurchase or other acquisition had not occurred, increases the percentage of the then outstanding voting securities Owned by the Subject Person over the designated percentage threshold, then a Change of Control will be deemed to occur;"
"(f)Disability. Disability means, with respect to Executive, the inability of such Executive 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 twelve (12)months, as provided in Sections 22(e)(3) and 409A(a)(2)(c)(i) of the Code, and will be determined by the Committee on the basis of such medical evidence as the Committee deems warranted under the circumstances."
"(i)a material reduction in Executives annual base salary (which Executive agrees is a reduction of at least 10% of base salary); provided, however that a reduction pursuant to a salary reduction program applicable generally to the Companys similarly situated employees that does not adversely affect Executive to a greater extent than other similarly situated employees shall not constitute Good Reason;"
"6.Term; Amendment. This Agreement will have an initial term of one (1)year commencing on the Effective Date. This Agreement will renew automatically for additional one (1)year terms each anniversary of the Effective Date, unless either party provides the other party with written notice of non-renewal at least two (2)months prior to the date of automatic renewal. Notwithstanding the foregoing, upon the first Change of Control to occur, the term of this Agreement will extend automatically through the date that is eighteen (18)months following the effective date of the Change of Control, and if Executive becomes entitled to benefits under Section2, the Agreement will not terminate until all of the obligations of the parties hereto with respect to this Agreement have been satisfied. No waiver, alteration, or modification of any of the provisions of this Agreement will be binding unless made in writing approved by the Committee and executed by a duly authorized officer of the Company other than the Executive. "
"(a)The Companys Successors. Any successor to the Company (whether direct or indirect and whether by purchase, merger, consolidation, liquidation or otherwise) to all or substantially all of the Companys business and/or assets will assume the obligations under this Agreement and agree expressly to perform the obligations under this Agreement in the same manner and to the same extent as the Company would be required to perform such obligations in the absence of a succession. For all purposes under this Agreement, the term Company will include any successor to the Companys business and/or assets which executes and delivers the assumption agreement described in this Section 7(a) or which becomes bound by the terms of this Agreement by operation of law."
"(e) Voluntary Nature of Agreement.Executive acknowledges and agrees that Executive is executing this Agreement voluntarily and without any duress or undue influence by the Company or anyone else.Executive further acknowledges and agrees that Executive has carefully read this Agreement and that Executive has asked any questions needed for Executive to understand the terms, consequences and binding effect of Section10 of this Agreement and fully understands it, including that EXECUTIVE EXPLICITLY WAIVES THE RIGHT TO TRIAL BY JURY. Finally, Executive agrees that Executive has been provided an opportunity to seek the advice of an attorney of Executives choice before signing this Agreement."
"(e)Choice of Law. The validity, interpretation, construction and performance of this Agreement will be governed by the laws of the State of California (with the exception of its conflict of laws provisions). Any claims or legal actions by one party against the other arising out of the relationship between the parties contemplated herein (whether or not arising under this Agreement) will be commenced or maintained in any state or federal court located in the jurisdiction where Executive resides, and Executive and the Company hereby submit to the jurisdiction and venue of any such court."
"WHEREAS, Executive signed a Change of Control Severance Agreement with the Company on [], 201 (the Change of Control Agreement), which, among other things, provides for certain severance benefits to be paid to Executive by the Company upon the termination of Executives employment following a Change of Control (as defined in the Change of Control Agreement) of the Company;"
"(c)any and all claims for wrongful discharge of employment; termination in violation of public policy; discrimination; harassment; retaliation; breach of contract, both express and implied; breach of covenant of good faith and fair dealing, both express and implied; promissory estoppel; negligent or intentional infliction of emotional distress; fraud; negligent or intentional misrepresentation; negligent or intentional interference with contract or prospective economic advantage; unfair business practices; defamation; libel; slander; negligence; personal injury; assault; battery; invasion of privacy; false imprisonment; conversion; and disability benefits;"
"Unknown Claims. Executive acknowledges that Executive has been advised to consult with legal counsel and that Executive is familiar with the principle that a general release does not extend to claims that the releaser 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 releasee. Executive, being aware of this principle, agrees to expressly waive any rights Executive may have to that effect, as well as under any other statute or common law principles of similar effect.]3"
2 | This provision will only be included in this Agreement if Executive is age 40 or older at the time Executives employment relationship is terminated. The consideration period shall be revised to 45 days to the extent necessary under the Older Workers Benefit Protection Act to obtain an effective ADEA release. ---|--- 3 |
"9.Return of Company Property; Passwords and Password-protected Documents. Executive confirms that Executive has returned to the Company in good working order all keys, files, records (and copies thereof), equipment (including, but not limited to, computer hardware, software and printers, wireless handheld devices, cellular phones and pagers), access or credit cards, Company identification, and any other Company-owned property in Executives possession or control. Executive further confirms that Executive has cancelled all accounts for Executives benefit, if any, in the Companys name, including, but not limited to, credit cards, telephone charge cards, cellular phone and/or pager accounts and computer accounts. Executive also confirms that Executive has delivered all passwords in use by Executive at the time of Executives termination, a list of any documents that Executive created or of which Executive is otherwise aware that are password-protected, along with the password(s) necessary to access such password-protected documents. "
"13. No Admission of Liability. Executive understands and acknowledges that this Agreement constitutes a compromise and settlement of any and all actual or potential disputed claims by Executive. No action taken by the Company hereto, either previously or in connection with this Agreement, will be deemed or construed to be (a)an admission of the truth or falsity of any actual or potential claims or (b)an acknowledgment or admission by the Company of any fault or liability whatsoever to Executive or to any third party. "
17. Authority. The Company represents and warrants that the undersigned has the authority to act on behalf of the Company and to bind the Company and all who may claim through it to the terms and conditions of this Agreement. Executive represents and warrants that Executive has the capacity to act on Executives own behalf and on behalf of all who might claim through Executive to bind them to the terms and conditions of this Agreement. Each Party warrants and represents that there are no liens or claims of lien or assignments in law or equity or otherwise of or against any of the claims or causes of action released herein. 
"19. Severability. In the event that any provision or any portion of any provision hereof or any surviving agreement made a part hereof becomes or is declared by a court of competent jurisdiction or arbitrator to be illegal, unenforceable, or void, this Agreement will continue in full force and effect without said provision or portion of provision. "
"and any such act shall have been demonstrably and materially harmful to the Company. For purposes of this Agreement, no act or failure to act on the part of the Executive shall be deemed intentional if it was due primarily to an error in judgment or negligence, but shall be deemed intentional only if done or omitted to be done by the Executive not in good faith and without reasonable belief that the Executives action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for Cause hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three quarters of the Board then in office at a meeting of the Board called and held for such purpose, after reasonable notice to the Executive and an opportunity for the Executive, together with the Executives counsel (if the Executive chooses to have counsel present at such meeting), to be heard before the Board, finding that, in the good faith opinion of the Board, the Executive had committed an act constituting Cause as herein defined and specifying the particulars thereof in detail. Nothing herein will limit the right of the Executive or his beneficiaries to contest the validity or propriety of any such determination."
"(i) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the Exchange Act)) (a Person) of beneficial ownership (within the meaning of Rule 13d3 promulgated under the Exchange Act) of voting securities of the Company where such acquisition causes such Person to own (X) 30% or more of the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the Outstanding Company Voting Securities) without the approval of the Incumbent Board as defined in (ii) below or (Y) 35% or more of the Outstanding Voting Securities of the Company with the approval of the Incumbent Board; provided, however, that for purposes of this subsection (i), the following acquisitions shall not be deemed to result in a Change of Control: (A) any acquisition directly from the Company that is approved by the Incumbent Board (as defined in subsection (ii), below), (B) any acquisition by the Company or a subsidiary of the Company, (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company, (D) any acquisition by any Person pursuant to a transaction described in clauses (A), (B) and (C) of subsection (iii) below, or (E) any acquisition by, or other Business Combination (as defined in (iii) below) with, a person or group of which employees of the Company or any subsidiary of the Company control a greater than 25% interest (a MBO) but only if the Executive is one of those employees of the Company or any subsidiary of the Company that are participating in the MBO; provided, further, that if any Persons beneficial ownership of the Outstanding Company Voting Securities reaches or exceeds 30% or 35%, as the case may be, as a result of a transaction described in clause (A) or (B) above, and such Person subsequently acquires beneficial ownership of additional voting securities of the Company, such subsequent acquisition shall be treated as an acquisition that causes such Person to own 30% or 35% or more, as the case may be, of the Outstanding Company Voting Securities; and provided, further, that if at least a majority of the members of the Incumbent Board determines in good faith that a Person has acquired beneficial ownership (within the meaning of Rule 13d3 promulgated under the Exchange Act) of 30% or more of the Outstanding Company Voting Securities inadvertently, and such Person divests as promptly as practicable a sufficient number of shares so that such Person beneficially owns (within the meanings of Rule 13d3 promulgated under the Exchange Act) less than 30% of the Outstanding Company Voting Securities, then no Change of Control shall have occurred as a result of such Persons acquisition; or"
"(iii) the consummation of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Company or the acquisition of assets of another corporation, or other transaction (a Business Combination) excluding, however, such a Business Combination pursuant to which (A) the individuals and entities who were the ultimate beneficial owners of voting securities of the Company immediately prior to such Business Combination beneficially own, directly or indirectly, more than 65% of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the entity resulting from such Business Combination (including, without limitation, an entity that as a result of such transaction owns the Company or all or substantially all of the Companys assets either directly or through one or more subsidiaries), (B) no Person (excluding any employee benefit plan (or related trust) of the Company, the Company or such entity resulting from such Business Combination) beneficially owns, directly or indirectly 30% or more, if such Business Combination is approved by the Incumbent Board or 35% or more, if such Business Combination is not approved by the Incumbent Board, of the combined voting power of the then outstanding securities entitled to vote generally in the election of directors of the entity resulting from such Business Combination and (C) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination; or"
"(k) Term means the period commencing as of the date hereof and expiring on the close of business on December 31, 2018; provided, however, that (i) commencing on January 1, 2019 and each January 1 thereafter, the Term will automatically be extended for an additional year unless, not later than September 30 of the immediately preceding year, the Company or the Executive shall have given notice that it or the Executive, as the case may be, does not wish to have the Term extended; (ii) if a Change in Control occurs during the Term, the Term shall expire and this Agreement will terminate at the expiration of the Change in Control Severance Period; and (iii) subject to the last sentence of Section 9, if, prior to a Change in Control, the Executive ceases for any reason to be an employee of the Company and any Affiliate of the Company, thereupon without further action the Term shall be deemed to have expired and this Agreement will immediately terminate and be of no further effect. For purposes of this Section 1(k), the Executive shall not be deemed to have ceased to be an employee of the Company and any Affiliate of the Company by reason of the transfer of Executives employment between the Company and any Affiliate of the Company, or among any Affiliates of the Company."
"(a) In the event of the occurrence of a Change in Control during the Term, the Executives employment may be terminated by the Company or an Affiliate of the Company during the Change in Control Severance Period and the Executive shall be entitled to the benefits provided by Section 4(a) unless such termination is the result of the occurrence of one or more of the following events:"
"(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 held immediately prior to a Change in Control, 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 shall have been a Director of the Company and/or an Affiliate of the Company immediately prior to the Change in Control;"
"(b) Notwithstanding the foregoing, the Executive may terminate employment with the Company and any Affiliate of the Company with the right to severance compensation as provided in Section 4(b) upon the occurrence of one or more of the following events (regardless of whether any other reason, other than Cause as hereinabove provided, for such termination exists or has occurred, including without limitation other employment):"
"(ii) (A) A significant adverse change in the nature or scope of the authorities, powers, functions, responsibilities or duties attached to the position with the Company and any Affiliate of the Company which the Executive holds as of the commencement of your employment, (B) a reduction in the aggregate of the Executives Base Pay and Incentive Pay opportunity received from the Company and any Affiliate of the Company, provided however, that such a reduction in the aggregate of the Executives Base Pay, Incentive Pay and long-term equity opportunity is not part of a general reduction in executive officer compensation opportunity, or (C) the termination or denial of the Executives rights to Employee Benefits or any long-term, stock option, performance share, performance unit, or similar equity or equity-based award opportunity or a reduction in the scope or value thereof;"
"5\. Limitation on Payments and Benefits. If any amount or benefit to be paid or provided under this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, performance share, performance unit, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing would be an Excess Parachute Payment within the meaning of Section 280G of the Code (or any successor provision thereto), but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement or otherwise shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payments and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by a comparable provision of state law, and any applicable federal, state and local income taxes (Excise Tax)). The determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall be made by an independent accounting firm selected by the Company (the Accounting Firm), which Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the Termination Date or such earlier time as is requested by the Company and, if requested by the Executive, an opinion that he has substantial authority not to report any Excise Tax on the Executives Federal income tax return with respect to the Excess Parachute Payments. Any such determination by the Accounting Firm will be binding upon the Company and the Executive. The fact that the Executives right to payments or benefits may be reduced by reason of the limitations contained in this Section 5 shall not of itself limit or otherwise affect any other rights of the Executive. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 5, the Company shall reduce the Executives payments and/or benefits, to the extent required, in the following order: (i) the lump sum payment described in paragraph (1) of Annex A; (ii) the lump sum payment described in Section 4(d) of this Agreement; (iii) the benefits described in Paragraph (4) of Annex A; (iv) the benefits described in Paragraph (2) of Annex A; and (v) the accelerated vesting of long-term and equity or equity-based awards (if any) described in Paragraph (3) of Annex A."
"(d) Indirect Competition. For the purposes of Sections 8(b) and 8(c), inclusive, but without limitation thereof, the Executive will be in violation thereof if the Executive engages in any or all of the activities set forth therein directly as an individual on the Executives own account, or indirectly as a partner, joint venturer, employee, agent, salesperson, consultant, officer and/or director of any firm, association, partnership, corporation or other entity, or as a stockholder of any corporation in which the Executive or the Executives spouse, child or parent owns, directly or indirectly, individually or in the aggregate, more than five percent (5%) of the outstanding stock."
"(e) The Company. For the purposes of this Section 8, the Company shall include any and all direct and indirect subsidiary, parent, affiliated, or related companies of the Company for which the Executive worked or had responsibility at the time of termination of the Executives employment and at any time during the two (2) year period prior to such termination."
"(ii) all of the specific customer accounts, whether within or outside of the geographic area described in (i) above, with which the Executive had any contact or for which the Executive was assigned or had any responsibility (either direct or supervisory), in which the Executive was involved in solicitation or development, or about which the Executive had access to any trade secrets or confidential business and technical information of the Company, at the time of Termination Date and at any time during the two (2) year period prior to the Termination Date."
"(3) Upon the occurrence of a Change in Control, the provisions of the applicable long-term and equity (or equity-based) award agreements and plans, or any other documents or arrangements applicable at such time that provide for the treatment of such long-term and equity (or equity-based) awards in connection with or after a change in control, will govern the treatment of all long-term and equity (or equity-based) awards held by the Executive."
"(c) Notwithstanding the foregoing, or any other provision of the Agreement, for purposes of determining the period of continuation coverage to which the Executive or any of his dependents is entitled pursuant to Section 4980B of the Code (or any successor provision thereto) under the Companys medical, dental and other group health plans, or successor plans, the Executives qualifying event shall be the termination of the Continuation Period. Further, for purposes of the immediately preceding sentence and for any other purpose including, without limitation, the calculation of service or age to determine Executives eligibility for benefits under any retiree medical benefits or life insurance plan or policy, the Executive shall be considered to have remained actively employed on a full-time basis through the termination of the Continuation Period."
"(5) Reasonable fees for outplacement services, by a firm selected by the Executive, at the expense of the Company in an amount not in excess of $20,000; provided that Executive incurs such outplacement services no later than December 31 of the second year following the year in which Executives Termination Date occurs, and provided further that the payment of fees for outplacement services will not be made any later than the last day of the third year following the year in which Executives Date of Termination occurs."
" Prior to the commencement of your employment, DiamondRock will enter into a Severance Agreement with you, providing for, among other things, compensation to be paid to you upon the termination of your employment for certain reasons. For example, the Severance Agreement will provide that if your employment terminates in connection with a change in control of the Company for any reason (other than a voluntary resignation without good reason), you will be entitled to a severance payment equal to (i)vesting in all stock, (ii)payment of year-to date bonus accrued at target and (iii)two (2)times the sum of (x)your then current base salary and (y)your target annual bonus."
"The REIT considers it essential to the best interests of its stockholders to promote and preserve the continuous employment of key management personnel. The Board of Directors of the REIT (the Board of Directors) recognizes that, as in the case with many corporations, the possibility of a termination of employment exists and that such possibility, and the uncertainty and questions that it may raise among management, may result in the distraction of key management personnel to the detriment of the REIT and its stockholders. Therefore, the Board of Directors has determined that appropriate steps should be taken to reinforce and encourage the continued attention and dedication of members of the REITs key management. Nothing in this Agreement shall be construed as creating an express or implied contract of employment and, except as otherwise agreed in writing between the Executive and the REIT, the Executive shall not have any right to be retained in the employ of the REIT."
"For purposes of this definition of Change in Control, the following definitions shall apply: (A)Beneficial Ownership, Beneficially Owned and Beneficially Owns shall have the meanings provided in Exchange Act Rule13d-3; (B)Exchange Act shall mean the Securities Exchange Act of 1934, as amended; (C)Person shall mean any individual, entity, or group (within the meaning of Section13(d)(3)or 14(d)(2)of the Exchange Act), including any natural person, corporation, trust, association, company, partnership, joint venture, limited liability company, legal entity of any kind, government, or political subdivision, agency or instrumentality of a government, as well as two or more Persons acting as a partnership, limited partnership, syndicate or other group for the purpose of acquiring, holding or disposing of the REITs securities; and (D)Qualified Affiliate shall mean (I)any directly or indirectly wholly owned subsidiary of the REIT or the Operating Partnership; (II)any employee benefit plan (or related trust) sponsored or maintained by the REIT or the Operating Partnership or by any entity controlled by the REIT or the Operating Partnership; or (III)any Person consisting in whole or in part of the Executive or one or more individuals who are then the REITs Chief Executive Officer or any other named executive officer (as defined in Item 402 of Regulation S-K under the Securities Act of 1933) of the REIT as indicated in its most recent securities filing made before the date of the transaction."
(e) Disability. Disability shall mean if the Executive is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months.
"(iv) vesting as of the Date of Termination of 100% of all unvested time-based restricted stock awards, to the extent permitted by law. The treatment of equity compensation awards that are not time based vesting (such as restricted stock which vests based on one or more performance metrics) granted after the effective date of this agreement"
"(iii) vesting as of the Date of Termination of 100% of all unvested time-based restricted stock awards, to the extent permitted by law. The treatment of equity compensation awards that are not time based vesting (such as restricted stock which vests based on one or more performance metrics) granted after the effective date of this agreement will be specified in the individual grant agreements and/or the applicable plans covering such awards."
"(ii) notwithstanding the Retirement by the Executive, all unvested time-based restricted stock awards shall continue to vest at the times and on the terms as set forth in the relevant restricted stock award agreements as if the Executive remained continuously employed by the REIT from the Date of Termination through each such vesting date. The treatment of non-time-based equity compensation awards (such as restricted stock which vests based on one or more performance metrics) granted after the effective date of this agreement will be specified in individual grant agreements and/or the applicable plans covering such awards."
"(i) If the reduction of the Severance Payments to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the Safe Harbor Cap) would provide the Executive with a greater after tax benefit than if such amounts were not reduced, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the Safe Harbor Cap. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments of cash orginating under Section3 (a)-3(d)hereof, and then by reducing other payments to the extent permitted by any applicable plan and/or agreement."
"(iii) The determination of whether the Excise Tax is payable and the amount thereof shall be made in writing in good faith by a nationally recognized independent certified public accounting firm selected by the REIT and approved by the Executive, such approval not to be unreasonably withheld (the Accounting Firm). For purposes of"
"Employee shall not, without the express written consent of the REIT, hire, solicit, recruit, induce or procure (or assist or encourage any other person or entity to hire, solicit, recruit, induce or procure), directly or indirectly or on behalf of himself or any other person or entity, any officer, executive, director, partner, principal, member, or non-clerical employee of the DiamondRock Group or any person who was an officer, executive, director, partner, principal, member, or non-clerical employee of the DiamondRock Group at any time during the final year of the Executives employment with the REIT, to work for the Executive or any person or entity with which the Executive is or intends to be affiliated or otherwise directly or indirectly encourage any such person to terminate his or her employment or other relationship with the DiamondRock Group without the prior express written consent of the REIT. Notwithstanding anything contained herein, the foregoing shall not restrain the Executive from hiring, soliciting, recruiting, inducing or procuring any person to work for the Executive or any person or entity with which the Executive is or intends to be affiliated if such person was either terminated by the REIT or such person resigned for Good Reason. In addition, the Board of Directors retains the right, in its sole discretion, to release any Executive from its obligations under this Section."
"(k) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and assigns, including any entity with which or into which the REIT may be merged or which may succeed to its assets or business or any entity to which the REIT may assign its rights and obligations under this Agreement; provided, however, that the obligations of the Executive are personal and shall not be assigned or delegated by him."
"(n) Severability. In case any provision of this Agreement shall be held by a court or arbitrator with jurisdiction over the parties to this Agreement to be invalid, illegal or otherwise unenforceable, such provision shall be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby. In the event that any portion or provision of this Agreement (including, without limitation, any portion or provision of Sections 4, 5, and/or 6) is determined by a court or arbitrator of competent jurisdiction to be invalid, illegal or otherwise unenforceable by reason of excessive scope as to geographic, temporal or functional coverage, such provision will be reformed and deemed to extend only over the maximum geographic, temporal and functional scope as to which it may be enforceable and shall be enforced by said court or arbitrator accordingly."
"(i) A transaction or series of transactions (other than an offering of the Companys common stock to the general public through a registration statement filed with the Securities and Exchange Commission) whereby any person or related group of persons (as such terms are used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the Exchange Act)) (other than the Company, any of its subsidiaries, an employee benefit plan maintained by the Company or any of its subsidiaries or a person that, prior to such transaction, directly or indirectly controls, is controlled by, or is under common control with, the Company) directly or indirectly acquires beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of securities of the Company possessing more than fifty percent (50%) of the total combined voting power of the Companys securities outstanding immediately after such acquisition; or"
"(d) Exclusive Remedy. Except as otherwise expressly required by law (e.g., COBRA) or as specifically provided herein, all of Executives rights to salary, severance, benefits, bonuses and other amounts hereunder (if any) accruing after the termination of Executives employment shall cease upon such termination. In the event of a termination of Executives employment with the Company, and except in the event of violation of applicable law by the Company relating to Executives employment or the termination thereof, Executives sole remedy shall be to receive the payments and benefits described in this Section3 plus, subject to Section 3(a)(v) above, any payments due to Executive under the Severance Agreement (defined below)."
"presenting its case; provided, however, Executive and the Company agree that, to the extent permitted by law, the arbitrator may, in his or her discretion, award reasonable attorneys fees to the prevailing party; provided, further, that the prevailing party shall be reimbursed for such fees, costs and expenses within forty-five (45)days following any such award, but in no event later than the last day of the Executives taxable year following the taxable year in which the fees, costs and expenses were incurred; provided, further, that the parties obligations pursuant to this sentence shall terminate on the tenth (10th) anniversary of the date of Executives termination of employment; provided, however, that Executive shall retain the right to file administrative charges with or seek relief through any government agency of competent jurisdiction, and to participate in any government investigation, including but not limited to (a)claims for workers compensation, state disability insurance or unemployment insurance; (b)claims for unpaid wages or waiting time penalties brought before the California Division of Labor Standards Enforcement; provided, however, that any appeal from an award or from denial of an award of wages and/or waiting time penalties shall be arbitrated pursuant to the terms of this Agreement; and (c)claims for administrative relief from the United States Equal Employment Opportunity Commission and/or the California Department of Fair Employment and Housing (or any similar agency in any applicable jurisdiction other than California); provided, further, that Executive shall not be entitled to obtain any monetary relief through such agencies other than workers compensation benefits or unemployment insurance benefits. Other costs of the arbitration, including the cost of any record or transcripts of the arbitration, JAMS administrative fees, the fee of the arbitrator, and all other fees and costs, shall be borne by the Company. This Section5 is intended to be the exclusive method for resolving any and all claims by the parties against each other for payment of damages under this Agreement or relating to Executives employment; provided, however, that neither this Agreement nor the submission to arbitration shall limit the parties right to seek provisional relief, including without limitation injunctive relief, in any court of competent jurisdiction pursuant to California Code of Civil Procedure  1281.8 or any similar statute of an applicable jurisdiction. Seeking any such relief shall not be deemed to be a waiver of such partys right to compel arbitration. Both Executive and the Company expressly waive their right to a jury trial."
"7.1 Successors and Assigns. The rights of the Company under this Agreement may, without the consent of Executive, be assigned by the Company, in its sole and unfettered discretion, to any person, firm, corporation or other business entity which at any time, whether by purchase, merger or otherwise, directly or indirectly, acquires all or substantially all of the assets or business of the Company. The Company will require any successor (whether direct or indirect, by purchase, merger or otherwise) to all or substantially all of the business or assets of the Company expressly to assume and to 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; provided, however, that no such assumption shall relieve the Company of its obligations hereunder; provided, further, that the failure of any such successor to so assume this Agreement shall constitute a material breach of this Agreement. As used in this Agreement, the 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. Executive shall not be entitled to assign any of Executives rights or obligations under this Agreement. This Agreement shall inure to the benefit of and be enforceable by Executives personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees."
"(c) Notwithstanding anything to the contrary in this Agreement, in-kind benefits and reimbursements provided under this Agreement during any tax year of Executive shall not affect in-kind benefits or reimbursements to be provided in any other tax year of Executive and are not 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 made to Executive as soon as administratively practicable following such submission, but in no event later than the last day of Executives taxable year following the taxable year in which the expense was incurred. In no event shall Executive be entitled to any reimbursement payments after the last day of Executives taxable year following the taxable year in which the expense was incurred. This section shall only apply to in-kind benefits and reimbursements that would result in taxable compensation income to Executive."
"(d) Executive understands that after executing this Release, Executive has the right to revoke it within seven (7)days after his or her execution of it. Executive understands that this Release will not become effective and enforceable unless the seven (7)day revocation period passes and Executive does not revoke the Release in writing. Executive understands that this Release may not be revoked after the seven (7)day revocation period has passed. Executive also understands that any revocation of this Release must be made in writing and delivered to the Company at its principal place of business within the seven (7)day period."
"5\. Governing Law and Venue. This Release will be governed by and construed in accordance with the laws of the United States of America and the State of California applicable to contracts made and to be performed wholly within such State, and without regard to the conflicts of laws principles thereof. Any suit brought hereon shall be brought in the state or federal courts sitting in Santa Clara County, California, the Parties hereby waiving any claim or defense that such forum is not convenient or proper. Each party hereby agrees that any such court shall have in personam jurisdiction over it and consents to service of process in any manner authorized by California law."
"(a) Notwithstanding the provisions of Section 1 above, if, within nine months prior to a Change of Control (as such term is defined in Section 5(b) below) and subsequent to the commencement of substantive discussions that ultimately result in the Change of Control, the Company terminates the Executives employment with the Company without Cause (as such term is defined in Section 5(c) below):"
"(2) the Company shall (i) subject to the terms and conditions provided for by the law known as COBRA, provided the Executive has timely elected COBRA and continues to be covered by COBRA at the time of the Change of Control and subject to the Executives copayment of premium amounts at the active employee rate, pay the Companys share of premium payments as from time to time in effect for active employees for group medical and dental insurance through the earliest of (1) twelve (12) months following the Change of Control, (2) the date the Executive becomes eligible through new employment for medical and/or dental, or (3) the date the Executive becomes ineligible for COBRA benefits (as applicable, the COBRA Contribution Period); provided, however, that such Company-paid premiums may be recorded as additional income pursuant to Section 6041 of the Code, and not entitled to any tax qualified treatment to the extent necessary to comply with or avoid the discriminatory treatment prohibited by the Patient Protection and Affordable Care Act of 2010 and the Health Care and Education Reconciliation Act of 2010 or Section 105(h) of the Code. The Executive agrees to give prompt written notice of any subsequent employment he obtains during the COBRA Contribution Period. If the Company determines, in its discretion, that it cannot pay its share of premium payments as described in this Section 2(a)(2) without income tax consequences to the Executive, the Company may instead provide an additional amount of severance to the Executive sufficient to cover the employer share of the premium for the Executives group medical and dental insurance coverage for the period described in this Section 2(a)(2), together with an amount sufficient to pay any taxes on such additional severance payments; and (ii) subject to the terms and conditions of such plan, until the earlier of twelve (12) months following the Change of Control or the date the Executive becomes eligible through new employment for life and/or accident insurance, provide the Executive with life and accident insurance or reimburse the Executive for the costs of his obtaining life and/or accident insurance substantially comparable to such benefits as provided to him by the Company. The Executive agrees to give prompt written notice of any subsequent employment he obtains prior to the date that is twelve (12) months following the Change of Control that results in his eligibility for life and/or accident insurance; and"
"(b) For purposes of Section 3 above, Good Reason shall mean the occurrence of one or more of the following events following a Change of Control, as the case may be: (i) the assignment to the Executive of any duties inconsistent in any adverse, material respect with his position, authority, duties or responsibilities immediately prior to the Change of Control or any other action by the Company which results in a material diminution in such position, authority, duties or responsibilities; (ii) a material reduction in the aggregate of the Executives base compensation; or (iii) a change by the Company in the location at which the Executive performs the Executives principal duties for the Company to a new location that is both (X) outside a radius of 40 miles from the Executives principal residence immediately prior to the Change of Control and (Y) more than 30 miles from the location at which the Executive performed the Executives principal duties for the Company immediately prior to the Change of Control; or a requirement by the Company that the Executive travel on Company business to a substantially greater extent than required immediately prior to the Change of Control or (iv) a failure by the Company to obtain the agreement referenced in Section 5(e)."
"(b) For purposes of this Agreement, Change of Control shall mean the closing of: (i) a merger, consolidation, liquidation or reorganization of the Company into or with another Company or other legal person, after which merger, consolidation, liquidation or reorganization the capital stock of the Company outstanding prior to consummation of the transaction is not converted into or exchanged for or does not represent more than 50% of the aggregate voting power of the surviving or resulting entity; (ii) the direct or indirect acquisition by any person (as the term person is used in Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended) of more than 50% of the voting capital stock of the Company, in a single or series of related transactions; or (iii) the sale, exchange, or transfer of all or substantially all of the Companys assets (other than a sale, exchange or transfer to one or more entities where the stockholders of the Company immediately before such sale, exchange or transfer retain, directly or indirectly, at least a majority of the beneficial interest in the voting stock of the entities to which the assets were transferred); provided that the event described in (i), (ii) or (iii) is also described in Code section 409A(2)(A)(v) and the regulations thereunder."
"(e) Except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of the Company and any successor (whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) of the Company; provided, however, that as a condition of closing any transaction which results in a Change of Control, the Company shall obtain the written agreement of any successor (whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) of the Company to be bound by the provisions of this Agreement as if such successor were the Company and for purposes of this Agreement, any such successor of the Company shall be deemed to be the Company for all purposes."
"(d) Cause means, as determined by the Board in its reasonable discretion: (i)the Executives conviction of, or plea of guilty or nolo contendere to, a misdemeanor involving dishonesty, wrongful taking of property, immoral conduct, bribery or extortion or any felony; (ii)willful material misconduct by the Executive in connection with the business of the Company; (iii)the Executives continued and willful failure to perform substantially his responsibilities to the Company under this Agreement, after written demand for substantial performance has been given by the Board that specifically identifies how the Executive has not substantially performed his responsibilities; (iv)the Executives improper disclosure of confidential information or other material breach of this Agreement, including the Additional Employee Agreement; (v)the Executives material fraud or dishonesty against the Company; (vi)the Executives willful and material breach of the Companys written code of conduct and business ethics or other material written policy, procedure or guideline in effect from time to time (provided that the Executive was given access to a copy of such policy, procedure or guideline prior to the alleged breach) relating to personal conduct; or (vii)the Executives willful attempt to obstruct or willful failure to cooperate with any investigation authorized by the Board or any governmental or self-regulatory entity. Any determination of Cause by the Company shall be made by a resolution approved by a majority of the members of the Board, provided that, with respect to Section1(d)(iii), the Board must give the Executive notice and 60 days to cure the substantial nonperformance."
"appointed or established by the Company for or pursuant to the terms of any such plan that acquires beneficial ownership of voting securities of the Company, is or becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than 50%of the combined voting power of the Companys then outstanding securities;"
"(iv) a Board Change which, for purposes of this Agreement, shall have occurred if a majority of the seats on the Board are occupied by individuals who were neither (A)nominated by a majority of the Incumbent Directors nor (B)appointed by directors so nominated (Incumbent Director means a member of the Board who has been either (1)nominated by a majority of the directors of the Company then in office or (2)appointed by directors so nominated, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule14a-11 of Regulation 14A promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than the Board); or"
"(l) Release means a full release of claims against the Company substantially in the form attached hereto as ExhibitB; provided, however, that notwithstanding the foregoing, such Release is not intended to and will not waive the Executives rights: (i)to indemnification pursuant to any applicable provision of the Companys Bylaws or Certificate of Incorporation, as amended, pursuant to any written indemnification agreement between the Executive and the Company, or pursuant to applicable law; (ii)to vested benefits or payments specifically to be provided to the Executive under this Agreement or any Company employee benefit plans or policies; or (iii)respecting any claims the Executive may have solely by virtue of the Executives status as a stockholder of the Company. The Release also shall not include claims that an employee cannot lawfully release through execution of a general release of claims."
"3. | Obligations ---|--- While employed hereunder, the Executive will perform his duties ethically, faithfully and to the best of the Executives ability and in accordance with law and Company policy. The Executive agrees not to actively engage in any other employment, occupation or consulting activity for any direct or indirect remuneration without the express prior written approval of the Companys Chief Executive Officer; provided, however, that notwithstanding anything to the contrary in the Additional Employee Agreement, the Executive may engage in charitable activities so long as such activities do not materially interfere with the Executives responsibilities to the Company."
"(d) Termination of Employment in Connection With a Change of Control. If the Company terminates the Executives employment without Cause or the Executive terminates employment with the Company for Good Reason (1)on the day of or during the 12-month period immediately following the consummation of a Change of Control or (2)during the 2-month period prior to the consummation of a 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, then subject to Section6(g) and with respect to clause (2), subject to the consummation of such Change of Control, the Executive shall receive the following payments and benefits:"
"(ii) a lump-sum payment in an amount equal to (A)the monthly COBRA premium in effect under the Companys group health plan as of the Termination Date for the coverage in effect under such plan for the Executive (and the Executives spouse and dependent children) on such date multiplied by (B)12 (less applicable withholding taxes), which amount shall be payable in a single lump sum on the first payroll date that is at least 60days following the Termination Date (but, in any event, by no later than March15 of the calendar year immediately following the calendar year that includes the Termination Date), in accordance with Section13(b)(ii); provided, however, that notwithstanding the foregoing or any other provision in this Agreement to the contrary, the Company (or its successor) may unilaterally amend this Section6(d)(ii) or eliminate the benefit provided hereunder to the extent it deems necessary to avoid the imposition of excise taxes, penalties or similar charges on the Company or any of its subsidiaries, affiliates or successors, including, without limitation, under Section4980D of the Code; and"
"(f) Disability. In the event of the Executives termination of employment with the Company due to Disability, and subject to Section6(g), the Executive shall be entitled to receive a lump-sum payment in an amount equal to six months Base Salary in effect as of the Termination Date (less applicable withholding taxes), which amount shall be payable in a single lump sum on the first payroll date that is at least 60days following the Termination Date (but, in any event, by no later than March15 of the calendar year immediately following the calendar year that includes the Termination Date), in accordance with Section13(b)(ii)."
"(g) Release and Other Conditions. The payments and benefits described in Sections6(c) through 6(f) are expressly conditioned on (i)the Executive (or, in the case of the Executives death, the Executives representative) signing and delivering (and not revoking thereafter) a Release to the Company (which, in the case of the Executives death, also releases any claims by the Executives estate or survivors), which Release is executed, delivered and effective no later than 60days following the Termination Date and (ii)the Executive continuing to satisfy any obligations to the Company under this Agreement, the Release and the Additional Employee Agreement that are incorporated herein by reference, and any other agreement(s) between the Executive and the Company. In the event the Release described in Section6(g)(i) is not executed, delivered and effective by the 60th day after the Termination Date, none of such payments or benefits shall be provided to the Executive."
"Payments from being an excess parachute payment (within the meaning of Section280G) (the Capped Payments), whichever of the foregoing amounts results in the receipt by the Executive, on an after-tax basis, of the greatest amount of Payments notwithstanding that all or some portion of the Payments may be subject to the Excise Tax. For purposes of determining whether the Executive would receive a greater after-tax benefit from the Capped Payments than from receipt of the full amount of the Payments, (i)there shall be taken into account any Excise Tax and all applicable federal, state and local taxes required to be paid by the Executive in respect of the receipt of such payments and (ii)such payments shall be deemed to be subject to federal income taxes at the highest rate of federal income taxation applicable to individuals that is in effect for the calendar year in which the payments and benefits are to be paid, and state and local income taxes at the highest rate of taxation applicable to individuals in the state and locality of the Executives residence on the effective date of the relevant transaction described under Section280G(b)(2)(A)(i) of the Code, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes (as determined by assuming that such deduction is subject to the maximum limitation applicable to itemized deductions under Section68 of the Code and any other limitations applicable to the deduction of state and local income taxes under the Code)."
"(c) The Company and the Executive agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions that may be necessary, appropriate, or desirable to avoid imposition of additional tax or income recognition on the Executive under Section409A, in each case to the maximum extent permitted by applicable law. Notwithstanding any provision of this Agreement to the contrary, (i)in no event will the Company be liable for any additional tax, interest or penalty that may be imposed on the Executive by Section409A or damages for failing to comply with Section409A and (ii)the Executive acknowledges and agrees that the Executive will not have any claim or right of action against the Company or any of its employees, officers, directors or agents in the event it is determined that any payment or benefit provided hereunder does not comply with Section409A."
"In consideration of my employment by Blucora, Inc., a Delaware corporation and H.D. Vest, Inc., a Texas corporation, and their subsidiaries, affiliates, successors or assigns (collectively herein the Company), and in consideration of the compensation now and hereafter paid to me, I agree to the following terms and conditions of my employment relationship with the Company (the Agreement) which supplement the terms of my employment agreement with the Company, dated as of January22, 2017 (the Employment Agreement):"
"5\. Non-Disclosure of the Company Information: During my employment with the Company and at any time thereafter, I will not disclose to anyone outside the Company nor use for any purpose other than my work for the Company any confidential or proprietary technical, financial, marketing, distribution or business information or trade secrets of the Company, including without limitation, concepts, techniques, processes, methods, systems, designs, cost data, computer programs, formulas, development or experimental work, work in progress, or information or details regarding the Companys relationships with customers, vendors, partners and suppliers (collectively The Company Confidential Information). I will also not disclose any The Company Confidential Information inside the Company except on a need to know basis. If I have any questions as to what comprises such The Company Confidential Information, or to whom, if anyone, inside the Company, it may be disclosed, I will consult the Companys Chief Legal& Administrative Officer. Anything herein to the contrary notwithstanding, The Company Confidential Information does not include information which (i)is disclosed as required by law, provided that I give the Company prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure and (ii)as to information that becomes generally known to the public other than due to my violation of any legal contractual or fiduciary confidentiality obligation."
"11\. Non-Competition: During the Post-Employment Year, I will not, within the United States, Canada, and any other region where the Company engages in the Companys business (as defined below) during my employment with the Company, accept employment with any entity whose business is, or engage in any activities that are, competitive with the Companys business. For purposes of this paragraph 11, the Companys business shall mean (a)tax preparation and tax preparation-related products and services provided to consumers and small businesses, and to or through tax professionals; (b)investment and insurance products or services, and related advice and brokerage services, provided to or through tax professionals or in conjunction with tax preparation services and (c)any other business the Company engages in or develops during Executives employment with the Company."
"13\. Mutual Agreement to Arbitrate: I understand that the Company is committed to resolving any employment related disputes and claims efficiently and effectively, while preserving due process safeguards, through the use of binding arbitration. I agree that any dispute and/or claim between the Company (including without limitation its officers, directors, employees agents or shareholders) and me that underlies, relates to and/or results from my employment relationship with the Company or any of the terms of this Agreement, including the confidentiality, non-compete and non-solicitation requirements, that cannot be resolved by mutual agreement of the Company and me will be submitted to final, binding arbitration to the maximum extent permitted by law in accordance with the National Rules for the Resolution of Employment Disputes of the American Arbitration Association that are then in effect."
" | (b) | The waiver and release set forth in this Section2 is intended to be construed as broadly and comprehensively as applicable law permits. The waiver and release shall not be construed as waiving or releasing any claim or right that as a matter of law cannot be waived or released, including Executives right to file a charge with the Equal Employment Opportunity Commission or other government agency; however, Executive waives any right to recover monetary remedies and agrees that he will not accept any monetary remedy as a result of any such charge or as a result of any legal action taken against the Company by any such agency. ---|---|--- "
" | 4. | Binding Agreement; Successors and Assigns ---|---|--- This Release binds Executives heirs, administrators, representatives, executors, successors, and assigns, and will inure to the benefit of the respective heirs, administrators, representatives, executors, successors, and assigns of any person or entity as to whom the waiver and release set forth in Section2 applies."
 | (a) | Executive acknowledges that he has been given twenty-one (21)calendar days from the date of receipt of this Release to consider all of the provisions of this Release and that if he signs this Release before the 21-day period has ended he knowingly and voluntarily waives some or all of such 21-day period. ---|---|--- 
"(k)Confidential Information shall mean confidential, proprietary, and personal information about the Company, its partners and owners, and its customers and patrons. Such confidential, proprietary, and personal information includes but is not limited to information concerning the personal and financial affairs of the Companys partners and owners as well as the Companys business, financial condition, operations, assets and liabilities, research and development, marketing and public relations strategies, formulas, programs, systems of operations, recipes, ingredient lists, identification of suppliers and resources for goods and services, information regarding the needs, preferences, electronic mail addresses, names and telephone numbers of Company customers and guests, customer and guest lists, employee information, training manuals and videos, written procedures integral to the Companys day- to-day operations, trade secrets, sales, products, services, accounts, purchasers of Company products, marketing, packaging, merchandising, distribution, manufacturing, finance, financial data, technology, intellectual property, including patents, design patents, trademarks, trade dress, copyrights, strategies, business structures, operations or ventures or other business affairs or plans, or information relating to existing or contemplated businesses, products and/or services of the Company, and any other information which the Company does not disclose to third parties not in a relationship of confidence with the Company."
"(e)Vacation; Holidays. During the Term, the Employee shall be entitled to four weeks and three days paid vacation each full calendar year. Any vacation shall be taken at the reasonable and mutual convenience of the Company and the Employee. Holidays shall be provided in accordance with Company policy, as in effect from time to time."
"(ii)Disability. If the Employee incurs a Disability, the Company may give the Employee written notice of its intention to terminate the Employees employment. In that event, the Employees employment with the Company shall terminate, effective on the later of the 30th day after receipt of such notice by the Employee or the date specified in such notice; provided that, within the 30-day period following receipt of such notice, the Employee shall not have returned to full-time performance of the Employees duties hereunder."
"14.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."
"(a)General. The parties hereto acknowledge and agree that, to the extent applicable, this Agreement shall be interpreted in accordance with, and incorporate the terms and conditions required by, Section 409A. Notwithstanding any provision of this Agreement to the contrary, in the event that the Company determines that any amounts payable hereunder will be immediately taxable to the Employee under Section 409A, the Company reserves the right (without any obligation to do so or to indemnify the Employee for failure to do so) to (i) adopt such amendments to this Agreement and appropriate policies and procedures, including amendments and policies with retroactive effect, that the Company determines to be necessary or appropriate to preserve the intended tax treatment of the benefits provided by this Agreement, to preserve the economic benefits of this Agreement and to avoid less favorable accounting or tax consequences for the Company and/or (ii) take such other actions as the Company determines to be necessary"
"(b)Separation from Service under Section 409A. Notwithstanding any provision to the contrary in this Agreement: (i) no amount shall be payable pursuant to Section 5(b) unless the termination of the Employees employment constitutes a separation from service within the meaning of Section 1.409A-1(h) of the Department of Treasury Regulations; (ii) for purposes of Section 409A, the Employees right to receive installment payments pursuant to Section 5(b) shall be treated as a right to receive a series of separate and distinct payments; and (iii) to the extent that any reimbursement of expenses or in- kind benefits constitutes deferred compensation under Section 409A, such reimbursement or benefit shall be provided no later than December 31 of the year following the year in which the expense was incurred. The amount of expenses reimbursed in one year shall not affect the amount eligible for reimbursement in any subsequent year. The amount of any in-kind benefits provided in one year shall not affect the amount of in-kind benefits provided in any other year. Notwithstanding any provision to the contrary in this Agreement, if the Employee is deemed at the time of his separation from service to be a specified employee for purposes of Section 409A(a)(2)(B)(i) of the Code, to the extent delayed commencement of any portion of the termination benefits to which the Employee is entitled under this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such portion of the Employees termination benefits shall not be provided to the Employee prior to the earlier of (A) the expiration of the six-month period measured from the date of the Employees separation from service with the Company (as such term is defined in the Treasury Regulations issued under Section 409A of the Code) or (B) the date of the Employees death; upon the earlier of such dates, all payments deferred pursuant to this sentence shall be paid in a lump sum to the Employee, and any remaining payments due under the Agreement shall be paid as otherwise provided herein."
"21.Compensation Recovery Policy. The Employee acknowledges and agrees that, to the extent the Company adopts any clawback or similar policy pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act or otherwise, and any rules and regulations promulgated thereunder, he shall take all action necessary or appropriate to comply with such policy (including, without limitation, entering into any further agreements, amendments or policies necessary or appropriate to implement and/or enforce such policy)."
"SECTION 2. Term. Employees employment under this Agreement shall be for a term (the Term) commencing on the date of this Agreement and ending on February 27, 2020 (or such earlier date, if any, on which Employee resigns or is terminated by the Company). So long as Employee has not materially breached the terms of this Agreement beginning on February 27, 2020 and on each anniversary thereof (each, an Extension Date), the Term shall be automatically extended for an additional one-year period (the Extended Term), unless either Party provides the other Party hereto at least twenty (20) days prior written notice before the next Extension Date that the Term shall not be so extended."
"(ii) Employee shall not (x) directly or indirectly solicit, recruit or hire any Employees of the Company or any of its subsidiaries or Affiliates, or any independent contractors, consultants or advisors that are engaged by the Company or any of its subsidiaries or Affiliates, in each case who were employees, independent contractors, consultants or advisors of the Company or any of its subsidiaries or Affiliates at any time during the Term; (y) solicit or encourage any employees, independent contractors, consultants or advisors to leave the employment of or engagement with the Company or any of its subsidiaries or Affiliates; or (z) intentionally interfere with the relationship of the Company or any of its subsidiaries or Affiliates with any employees, independent contractors, consultants or advisors."
"(c) Employee acknowledges that he has carefully read this Agreement and has given careful consideration to the restraints imposed upon Employee by this Agreement, and is in full accord as to the necessity of such restraints for the reasonable and proper protection of the confidential information, business strategies, intellectual property, employee and customer relationships and goodwill of the Company and its subsidiaries and Affiliates now existing or to be developed in the future. Employee expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter and time period. Employee expressly acknowledges and agrees that the restraints imposed by this Agreement will not prevent him from earning a livelihood. Employee agrees to comply with each of the covenants contained in this Section 4 in accordance with their terms."
"SECTION 6. Inventions. Any and all inventions, processes, procedures, systems, discoveries, designs, configurations, technology, intellectual property, works of authorship (including, but not limited to, computer programs), trade secrets and improvements (whether or not patentable and whether or not they are made, conceived or reduced to practice during working hours or using the Companys or any of its subsidiaries or Affiliates data or facilities) and all portions thereof (collectively, the Inventions) which Employee makes, conceives, reduces to practice, or otherwise acquires during her employment with the Company (either"
"solely or jointly with others), and which are related to the then present or planned business, services or products of the Company or any of its subsidiaries or Affiliates, shall be the sole property of the Company and shall at all times and for all purposes be regarded as acquired and held by Employee in a fiduciary capacity for the sole benefit of the Company. All Inventions that consist of works of authorship capable of protection under copyright laws shall be prepared by Employee as works made for hire, with the understanding that the Company shall own all of the exclusive rights to such works of authorship under the United States copyright law and all international copyright conventions and foreign laws. Employee hereby assigns to the Company, without further compensation, all such Inventions and any and all patents, copyrights, trademarks, trade names or applications therefore, in the United States and elsewhere, relating thereto. Employee shall promptly disclose to the Company all such Inventions and shall assist the Company in obtaining and enforcing for its own benefit patent, copyright and trademark registrations on such Inventions in all countries. Upon request, Employee shall execute all applications, assignments, instruments and papers and perform all acts, such as the giving of testimony in interference proceedings and infringement suits or other litigation, necessary or desired by the Company to enable the Company, its subsidiaries and Affiliates and their respective successors, assigns and nominees to secure and enjoy the full benefits and advantages of such Inventions."
"(c) If (i) Employee resigns at any time for any reason or is terminated by the Company for Cause or (ii) the Parties have failed to extend the Term of this Agreement, the Company shall have liability and obligation under this Agreement for all amounts due and payable to the Employee through the date of such termination or resignation."
"SECTION 8. Conflicts of Interest. Employee hereby represents that he is free to enter into this Agreement, and that her employment by the Company does not violate the terms of any agreement between him and any third party. Further, in rendering her duties to the Company, Employee shall not utilize any Invention, discovery, development, improvement, innovation or trade secret in which he or the Company does not have a proprietary interest."
"(g) Benefit and Assignability. The rights, benefits, duties and obligations under this Agreement shall inure to the benefit of, and be binding upon, (x) the Company and its successors, and (y) Employee and her legal representatives. This Agreement constitutes a personal service agreement, and the performance of Employees obligations under this Agreement may not be transferred or assigned by Employee. This Agreement may be assigned by the Company in its sole discretion. The provisions of Sections 4, 5, 8, 9, 1O(a), 1O(f), 1O(g), 1 O(i) and 1OG) shall continue in full force and effect notwithstanding the termination of Employees employment with the Company."
"This EXECUTIVE EMPLOYMENT AGREEMENT (Agreement) is made as of August31,2016 (the Agreement Date), with an effective date of January1, 2016 (the Effective Date), by Playa Resorts Management, LLC, a Delaware limited liability company with an address at 3950 University Drive, Suite 301, Fairfax, Virginia 22030 (Playa Resorts), and Bruce D. Wardinski (Mr.Wardinski). Playa Hotel& Resorts, B.V., a Dutch Company (Playa), is entering into this Agreement solely with respect to Section12 below."
"6. | Effect of Termination ---|--- (a) General. Regardless of the reason for any termination of this Agreement (other than terminations due to Mr.Wardinskis death or Disability, which are covered by Sections 6(e)(i) and (ii)below, respectively), Mr.Wardinski shall be entitled to receive each of the following: (i)payment of any unpaid portion of his Base Salary through the effective date of termination; (ii)reimbursement for any outstanding reasonable business expense he has incurred in performing his duties hereunder in accordance with Section4(d) above; (iii)continued insurance benefits to the extent required by law; and (iv)payment of any fully vested but unpaid rights as required by the terms of any bonus or other incentive pay plan, or any other employee benefit plan or program of Playa Resorts or a Playa Affiliate."
"(ii) To help defray Mr.Wardinskis costs of procuring health insurance coverage (including COBRA), Playa Resorts shall pay Mr.Wardinski an additional monthly amount of One Thousand Five Hundred Dollars ($1,500.00) (the Additional Amount) with each Severance Payment installment during the Severance Payment Period to be paid to Mr.Wardinski under Section6(c)(i) above; provided, however, that Mr.Wardinski shall promptly notify Playa Resorts if he becomes eligible to obtain insurance coverage under another group insurance plan at which time payment of the Additional Amount to Mr.Wardinski shall cease. In no event shall payment of the Additional Amount to Mr.Wardinski extend beyond the Severance Payment Period."
"(E) For purposes of this definition, Code Section318(a) applies to determine ownership. Equity underlying a vested option is considered owned by the individual who holds the vested option (and the stock underlying an unvested option is not considered owned by the individual who holds the unvested option). For purposes of the preceding sentence, however, if a vested option is exercisable for equity that is not substantially vested (as defined by Treasury Regulation 1.83-3(b) and (j)), the equity underlying the option is not treated as owned by the individual who holds the option."
"(i) Competing Business shall mean (a)acting as an owner or a lessee of hotels, convention facilities, conference centers or similar facilities; (b)asset or operational management for hotels, convention facilities, conference centers or similar facilities, or (c)any other business that Playa Resorts or Playa Affiliates conducts or contemplates under such business plans as of the date of termination of the Employment Period. Notwithstanding any provision to the contrary in this Agreement, Competing Business shall exclude: Mr.Wardinskis ownership of five percent (5%)or less of the outstanding stock of any publicly traded corporation or other entity; or of an equity interest in any other entity approved by the Playa Resorts Board and listed on Exhibit B hereto; or Mr.Wardinskis service on the Board of Directors of any Playa Affiliate."
"(v) Restricted Period shall mean the Employment Period and a period of eighteen (18)months (six (6)months in the case of a non-renewal or expiration pursuant to Section6(f) above, twelve (12)months following a Change in Control termination pursuant to Section6(g)(i) above, and three (3)months following a Change in Control termination pursuant to Section6(g)(ii) above) following the expiration, resignation or termination of Mr.Wardinskis employment."
"(a) Restriction on Competition. During the Restricted Period, Mr.Wardinski shall not engage, directly or indirectly, either individually or through another person or entity, whether as an owner, employee, consultant, partner, principal, agent, representative, stockholder or otherwise, of, in, to or for any Competing Business in the Restricted Area; provided, however, that Mr.Wardinski may own less than five percent (5%)of the outstanding stock of any publicly traded corporation that engages in a Competing Business."
"(e) Severability. If any court determines that any provision of this Section8 is invalid or unenforceable, the remainder of this Section8 shall not thereby be affected and shall be given full effect, without regard to the invalid portion. In addition, if any court or arbitrator construes any portion of this Section8 to be unenforceable because of the duration of such provision or the area covered thereby, such court shall have the power to reduce the duration or area of such provision and, in its reduced form, such provision shall then be enforceable and shall be enforced. This Section8, as so amended, shall be valid and binding as though any invalid or unenforceable provision had not been included herein."
"Appointments, 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."
"11. | Miscellaneous ---|--- (a) Parachute Payments. In the event that (i)any severance payment, insurance benefits, accelerated vesting, pro-rated bonus or other benefit payable to Mr.Wardinski shall constitute a parachute payment within the meaning of Code Section280G (Parachute Payment) and be subject to the excise tax imposed by Code Section4999 (the Excise Tax), and (ii)if the payments to Mr.Wardinski were reduced to the minimum extent necessary so that such payments did not constitute Parachute Payments, the net benefits retained by Mr.Wardinski after the deduction of any federal, state or local income taxes would be greater than the net benefits retained by Mr.Wardinski if there was no such reduction after the deduction of Excise Tax and any federal, state or local income taxes, then such payments shall be so reduced. Such reduction shall be accomplished in any manner deemed appropriate by Playa Resorts after consultation with Mr.Wardinski. For purposes of making the foregoing determination: (1)Parachute Payments provided under arrangements with Mr.Wardinski other than this Agreement, if any, shall be taken into account in determining the total amount of Parachute Payments received by Mr.Wardinski so that the amount of Parachute Payments that are attributable to provisions of this Agreement is maximized; and (2)Mr.Wardinski shall be deemed to pay federal, state and local income taxes at the highest marginal rate of taxation for Mr.Wardinskis taxable year in which the Parachute Payments are includable in Mr.Wardinskis income for purposes of federal, state and local income taxation. The determination of whether the Excise Tax is payable, and the amount of any reduction necessary to make the Excise Tax not payable, as well as whether such a reduction would result in greater after-tax benefits to Mr.Wardinski, shall be made in writing in good faith by a nationally-recognized independent certified public accounting firm approved by Playa Resorts and Mr.Wardinski, such approval not to be unreasonably withheld (the Accounting Firm). For purposes of making the calculations required by this Section11(a), to the extent not otherwise specified herein, reasonable assumptions and approximations may be made with respect to applicable taxes and reasonable, good faith interpretations of the Code may be relied upon. Playa Resorts and Mr.Wardinski shall furnish such information and documents as may be reasonably requested in connection with the performance of the calculations under this Section11(a). Playa Resorts shall bear all costs incurred in connection with the performance of the calculations contemplated by this Section11(a)."
"(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 Mr.Wardinski and, if timely submitted, reimbursement payments shall be promptly made to Mr.Wardinski 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 Mr.Wardinski be entitled to any reimbursement payments after December31st of the calendar year following the calendar year in which the expense was incurred."
"as a waiver of that or any other right. A waiver or consent given by Playa Resorts or Playa, as the case may be, or Mr.Wardinski on any one (1)occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion."
"(k) Severability. In case any provision of this Agreement shall be held by a court or arbitrator with jurisdiction over the parties to this Agreement to be invalid, illegal or otherwise unenforceable, such provision shall be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby."
"/s/ Larry Harvey |  | |  | |  | Larry Harvey |  | |  | |  | Its Authorized Representative PLAYA HOTELS& RESORTS, B.V., signs below solely (i)for the purpose of evidencing its agreement to be bound by the terms and conditions of Section12 of this Agreement and (ii)as conclusive evidence that this Agreement has been approved by the Playa Board:"
"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."
"Notwithstanding anything to the contrary in this Agreement, to the maximum extent permitted by applicable law, amounts payable to Executive pursuant to the severance pay provisions of Section6 of the Employment Agreement and the parachute payment provisions of Section11(a) of the Employment Agreement are intended to be exempt from treatment as nonqualified deferred compensation under Code Section409A to the maximum extent permitted by the Code and applicable Treasury Regulations, including exemptions under Treasury Regulation Section1.409A-1(b)(9) (separation pay plans) or Treasury Regulation Section1.409A-1(b)(4) (short-term deferrals). If Executive is treated as a  specified employee  (as determined by the Company in its discretion in accordance with applicable regulations under Code Section409A) at the time of his separation from service (within the meaning of Code Section409A) from the Company and each employer treated as a single employer with the Company under Code Section414(b) or (c)(provided that in applying such Sections and in accordance with the rules of Treasury Regulations Section1.409A-1(h)(3), the language at least 50 percent shall be used instead of at least 80 percent) and if any amounts of nonqualified deferred compensation (within the meaning of Code Section409A) are payable under this Agreement by reason of Executives separation from service, then payment of the amounts so treated as nonqualified deferred compensation which would otherwise be payable during the six (6)-month period following Executive s separation from service shall be delayed until the earlier of (i)the first business day which is at least six (6)months and one (1)day following the date of such separation from service, (ii)the death of Executive, or (iii)such earlier date on which payment is permitted under Code Section409A(a)(2)(B), and such payment shall be increased for delayed payment based on a crediting rate of the applicable federal short-term rate under Code Section1274(d) (as determined on the date(s) payment(s) would have otherwise been made) from the date payment(s) would have otherwise been made without regard to this provision and the date payment is actually made. Any series of payments due under this Agreement, other than a payment which is a life annuity, shall for all purposes of Code Section409A be treated as a series of separate payments and not as a single payment. If any amount otherwise payable under this Agreement by reason of a termination of employment from the Company is treated as nonqualified deferred compensation (within the meaning of Code Section409A), then instead of making such payment upon occurrence of the termination of employment, such payment shall be made at such time as Executive has a separation from service (within the meaning of Code Section409A) from the Company and each employer treated as a single employer with the Company, as determined above."
"6\. Non-disparagement. Executive understands and agrees that as a condition for the consideration herein described, Executive shall not make any false, disparaging or derogatory statements to any person or entity, including any media outlet, regarding the Company or any of its affiliates, subsidiaries, directors, officers, Executives, agents or representatives or about the Companys or its subsidiaries business affairs and/or financial condition. Executive understands and agrees that Executives commitment not to defame, disparage, or impugn Companys reputation constitutes a willing and voluntary waiver of Executives rights under the First Amendment of the United States Constitution and other laws. However, these non-disparagement obligations, do not limit Executives ability to truthfully communicate with the EEOC, DOL, NLRB and comparable state or local agencies or departments whether such communication is initiated by Executive or in response to the government."
"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. Any disputes or claims between the Company and Executive in any way concerning Executives employment as CEO or his performance of the Playa Appointments, respectively, the termination of his employment under the Employment Agreement or Playa Appointments, 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."
"3.Position. During the Term, Executive shall be employed as and hold the title of Chief Operating Officer of the Company, with such duties and responsibilities that are customary in that position for public companies. Executives principal place of employment shall be at the main business offices of Company in San Antonio, Texas."
"5.1Base Salary. The Company shall pay, or cause to be paid, to Executive a base salary (the Base Salary) as established by or pursuant to authority granted by the Board. Executives initial Base Salary shall be $300,000 per year. The Base Salary shall be reviewed annually by or pursuant to authority granted by the Board in connection with its annual review of executive compensation to determine if such Base Salary should be increased (but not decreased) for the following year in recognition of services to the Company. The Base Salary shall be payable at such intervals in conformity with the Companys prevailing practice as such practice shall be established or modified from time to time.."
"(b)without duplication of the amount described in the preceding clause (a), Executive shall be granted a bonus equal to 100% of Base Salary in the event that, during the Measurement Period, the Company has determined that its annualized gross production average for a consecutive 90-day period is equal to or exceeds 2,000 BOE per day;"
"5.7Reservation of Rights. The Company reserves the right to modify, suspend or discontinue any and all of its employee benefit plans, practices, policies and programs at any time in its sole discretion without recourse by Executive so long as such changes are similarly applicable to executive employees at a similar level."
"(a)Upon an Involuntary Termination during the Term and either prior to a Change in Control or more than one year following a Change in Control, contingent upon Executives execution, delivery and non-revocation of a release in form and substance satisfactory to the Company and consistent with the Companys standard release agreement, which contains a full release of all claims against the Company and certain other provisions, including a reaffirmation of the covenants in Section12 and Section13 (the Release Agreement), Executive shall be entitled to (1) a lump sum severance payment in an amount equal to 12 months of Base Salary in effect immediately prior to the date of Termination and (2) a lump sum payment equal to 12 months of COBRA premiums based on the terms of 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)."
"(b)Upon an Involuntary Termination during the Term and within one year following a Change in Control, contingent upon Executives execution, delivery and non-revocation of the Release Agreement, Executive shall be entitled to (1) a lump sum severance payment in an amount equal to 24 months of Base Salary in effect immediately prior to the date of Termination and (2) a lump sum payment equal to 24 months of COBRA premiums based on the terms of 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)."
"(f)Except as specifically provided under Section6.1 and Section6.2, the Company shall have no further obligations to Executive under this Agreement following a Termination. Without limitation of the foregoing, Executive shall not be entitled to any severance benefits under this Agreement in the event of a Termination other than an Involuntary Termination (except as provided in Section6.1). The foregoing shall not limit any of Executives rights with regard to any rights to indemnification, advancement or payment of legal fees and costs, and coverage under directors and officers liability insurance."
"(b)refused without proper legal reason to perform Executives duties and responsibilities to the Company or any of its affiliates, which continues after notice from the Company to perform such duties and responsibilities (for the purposes of this clause, the phrase proper legal reason shall include Executives delivery of a Notice of Termination for Good Reason where the assertion by Executive of Termination for Good Reason is for an event that constitutes Good Reason under the terms of this Agreement);"
"7.3Disability means, if, during the Term, Executive is unable to perform substantially and continuously the duties assigned to him due to a disability (as such term is defined or used for purposes of the Companys long-term disability plan then in effect, or, if no such plan is in effect, by virtue of ill health or other disability for more than 180 consecutive or non- consecutive days out of any consecutive 12-month period)."
"9.1Notwithstanding anything in this Agreement to the contrary, in the event that any payment or distribution by the Company to Executive or for Executive's benefit (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (the Payments) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986 (the Code), or any interest or penalty is incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, the Excise Tax), then the Payments shall be reduced (but not below zero) if and to the extent that such reduction would result in Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and the imposition of the Excise Tax), than if Executive received all of the Payments. The Company shall reduce or eliminate the Payments, by first reducing or eliminating the portion of the Payments that are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits that are to be paid the farthest in time from the determination."
"13.4Executive represents and warrants that, upon Termination (whether during or after the Term), and without any request by the Company, Executive shall return to Company any and all property, documents and files (including all recorded media, such as papers, computer disks or other data storage devices, copies, photographs, maps, transparencies and microfiche) that contain Confidential Information or relate in any way to the Company or its business. To the extent Executive possesses any files, data or information relating in any way to the Company or its business on any personal computer, Executive shall delete such files, data or information (and shall retain no copies in any form). Executive also shall return any Company tools, equipment, calling cards, credit cards, access cards or keys, any keys to any filing cabinets or vehicles and all other Company property in any form prior to Termination (whether during or after the Term)."
"20.Notices. Any notices, consents or other communications required to be sent or given hereunder by either of the Parties shall in every case be in writing and shall be deemed properly served if (i) delivered personally, (ii) sent by registered or certified mail, in all such cases with first class postage prepaid, return receipt requested, or (iii) delivered by a nationally recognized overnight courier service to the Parties at the following addresses: if to the Company, to its principal headquarters; and if to Executive, to Executives current address listed in the Companys records."
COMPANY |  | EXECUTIVE |  ---|---|---|---  |  |  |  Sign Name: | /s/ Abraham Mirman |  | Sign Name: | /s/ Brennan Short |   |  |  |  |  |  Print Name: | Abraham Mirman |  | Print Name: | Brennan Short |   |  |  |  |  |  Title: | Chief Executive Officer |  |  |  |   |  |  |  |  |  |  
"B. Duties. Executive shall perform and discharge well and faithfully, on behalf of Employer and its subsidiaries, duties commensurate with the position of Chief Executive Officer. Executive shall also perform any such other and further duties, responsibilities, and functions, at such locations, and in such manner as may be specified from time to time by the Board during Executives employment."
"C. Duty of Loyalty. Executive agrees to devote so much of Executives time, attention and energies to the business of Employer as is necessary for the successful operation of Employer and shall endeavor at all times to improve the business of Employer. Executive shall not engage in any other business activities without the advance written consent of Employer. Such consent by Employer shall not be unreasonably withheld provided that such other business activities do not detract from or violate Executives duties for and obligations to Employer."
"4. Annual Performance Incentive Payment: Executive shall be eligible for annual performance incentive payments each calendar year (each an Annual Performance Incentive Payment) beginning with calendar year 2018, provided that LMI and Sonaca Group meet performance objectives for the subject calendar year, which objectives shall be determined and agreed upon between Executive and Employer no later than sixty (60)days after the start of each calendar year, and further provided that Executive is maintaining a satisfactory level of performance as reasonably determined by Employer. The Annual Performance Incentive Payment for each calendar year shall be equal to not less than fifty percent (50%) and up to one hundred and ten percent (110%) of three quarters times (.75 x) the prior years annual Base Salary. Each Annual Performance Incentive Payment shall vest in three (3)installments, the first installment of which will vest on the last day of the calendar year to which it pertains and the second and third installments of which will vest on the last day of the two (2)successive calendar years immediately following the calendar year to which the Annual Performance Incentive Payment pertains (each a Vesting Date), provided that Executive is employed on the Vesting Date. Each Annual Performance Incentive Payment shall be paid over a three (3)year period beginning on January30 of the three (3)successive calendar years immediately following the calendar to which the Annual Performance Incentive Payment pertains. For purposes of illustration, assuming Executive is entitled to 100% of the Annual Performance Incentive Payment, the Annual Performance Incentive Payment for calendar year 2018 will equal $386,250.00 ($515,000.00 (prior years annual Base Salary) times three quarters (.75)), which will vest in three (3)installments on December31, 2018, December31, 2019, and December31, 2020, "
"E. Disability of Executive. This Agreement and Executives employment hereunder may be terminated in the event of Executives disability. For purposes of this Agreement, disability shall mean Executive cannot perform the essential functions of Executives employment position, with or without a reasonable accommodation, by reason of physical or mental impairment or other similar causes for a continuous period of ninety (90)days and under circumstances where it is not expected that Executive will be able to return to the continuous full-time performance of Executives duties within a period of twelve (12)months from the date such disability began. Such disability shall be certified by a duly licensed physician, and in the event Executive and Employer disagree, each shall select a duly licensed physician to examine Executive and the two physicians shall appoint a third duly licensed physician to examine Executive, in which case the findings of a majority shall control. The cost involved in such examination shall be borne by Company. It is understood that Executives occasional sickness or other incapacity of short duration (a temporary disability) may not result in Executive having a disability, however, any such temporary disability may constitute disability if such temporary disability is prolonged or recurring. The foregoing definition of disability is not intended to and shall not affect the definition of disability or any similar or related term in any insurance policy Employer may provide. If Employer elects to terminate the employment relationship on this basis, Employer shall notify Executive or Executives representative in writing and the termination shall become effective on the date that such notification is given. In the event of a termination of employment by reason of Executives disability, Employer shall pay to Executive (i)the Base Salary due Executive under this Agreement up to Executives termination date; (ii)any vested, but unpaid, Annual Incentive Payment and/or Annual Performance Incentive Payment; and (iii)a prorated amount of the Annual Bonus and the Annual Performance Incentive Payment for the calendar year in which the termination occurred. The amounts due to Executive shall be paid to Executive no later than March 15th of the year following the year in which Executives disability occurred."
"1. In the event of a Qualifying Termination occurring on or after the Effective Date until the first anniversary of the Effective Date, Employer shall provide Executive with Severance Pay in an amount that is equal to two and one-half times (2 1/2 x) Executives then current annual Base Salary. "
"Severance Pay shall be less such amounts required to be withheld by law. The Severance Pay shall be paid following termination in equal installments per Employers regular pay schedule over the length of the period of Base Salary on which the amount of Severance Pay is based (e.g. one-year period if Qualifying Termination occurs on or after the second anniversary of the Effective Date), commencing on the next regular payroll date following after the date the revocation period for the release agreement described below has expired and no revocation has occurred. If any payment hereunder fails to be exempt from Internal Revenue Code (Code) Section 409A, and the applicable revocation period spans two calendar years, commencement of payment of the installments will not occur until the second calendar year and after the release agreement has become effective."
"advisor, consultant or otherwise, or by means of any corporate or other entity or device, in any business which is competitive with the business of Employer. For purposes of this covenant, a business will be deemed competitive if it is conducted in whole or in part within any geographic area wherein Employer is engaged in marketing its products, and if it involves the design or manufacture of products for the aerospace industry that are the same or substantially similar to those designed or manufactured by Employer or if it is in any manner competitive, as of the date of cessation of the Executives employment, with any business then being conducted by Employer or as to which Employer has then formulated definitive plans to enter;"
"10. Remedies. In the event of the breach by Executive of any of the terms of this Agreement, notwithstanding anything to the contrary contained in this Agreement, Employer may terminate the employment of the Executive in accordance with the provisions of Section6\. It is further agreed that any breach or evasion of any of the terms of this Agreement by Executive will result in immediate and irreparable injury to Employer and will authorize recourse to injunction and/or specific performance as well as to other legal or equitable remedies to which Employer may be entitled. In addition to any other remedies that it may have in law or equity, Employer also may require an accounting and repayment to Employer of all profits, compensation, remuneration or other benefits realized, directly or indirectly, as a result of such breaches by the Executive or by a competitors business controlled, directly or indirectly, by the Executive. No remedy conferred by any of the specific provisions of this Agreement is intended to be exclusive of any other remedy and each and every remedy given hereunder or now or hereafter existing at law or in equity by statute or otherwise. The election of any one or more remedies by Employer shall not constitute a waiver of the right to pursue other available remedies. If either party shall commence a proceeding against the other to enforce and/or recover damages for breach of this Agreement, the prevailing party in such proceeding shall be entitled to recover from the other party all reasonable costs and expenses of enforcement and collection of any and all remedies and damages, or all reasonable costs and expenses of defense, as the case may be. The foregoing costs and expenses shall include reasonable attorneys fees. "
"22. Counterparts. For the purpose of facilitating the execution of this Agreement and for other purposes, this Agreement may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and such counterparts shall constitute but one and the same instrument. A signature of a party by facsimile or other electronic transmission (including a .pdf copy sent by e-mail) shall be deemed to constitute an original and fully effective signature of such party. "
"held by Employee (but in no event will the foregoing extend the ten-year term of the Option). Further, if at any time between the time the Company enters into a definitive agreement providing for a Change of Control (as defined below) and the closing of such Change of Control, or within twelve (12) months thereafter, Employee is either terminated without Cause (as defined below) or Employee resigns for Good Reason (as defined below), then the Option and all othe equity incentives then held by Employee will accelerate and be deemed at such time to be vested in full. The terms and conditions of the Option will be as set forth in the Companys 2008 Equity Incentive Plan; provided, however, that should any terms or provisions thereunder conflict with the terms of this Agreement, the terms of this Agreement will be deemed to supercede."
"(a) Cause is defined to mean (A) Employee has been convicted of, or have pleaded guilty or nolo contendere to, any felony or a crime involving moral turpitude; (B) Employee has engaged in willful misconduct which is injurious to the Company or materially failed or refused to perform the material duties lawfully and reasonably assigned to Employee or has performed such material duties with gross negligence or has breached any material term or condition of this Agreement or Employees Confidentiality Agreement, in any case after written notice by the Company of such misconduct, nonperformance, gross negligence, or breach of terms or conditions and an opportunity to cure within thirty (30) days of such written notice thereof from the Company, unless such misconduct, nonperformance, gross negligence or breach is, by its nature, not curable; or (C) Employee has committed any act of fraud, theft, embezzlement, misappropriation of funds, breach of fiduciary duty or other willful act of material dishonesty against the Company that results in material harm to the Company."
"10. Separate Covenants. The parties expressly agree that the character, duration and geographical scope of this Agreement are reasonable in light of the circumstances as they exist on the date upon which this Agreement has been executed. However, should a determination nonetheless be made by a court of competent jurisdiction at a later date that the character, duration or geographical scope of this Agreement is unreasonable in light of the circumstances as they then exist, then it is the intention and the agreement of Employee that this Agreement will be construed by the court in such a manner as to impose only those restrictions on the conduct of Employee that are reasonable in light of the circumstances as they then exist and as are necessary to assure the Company of the intended benefit of this Agreement. If, in any judicial proceeding, a court will refuse to enforce all of the separate covenants deemed included herein because, taken together, they are more extensive than necessary to assure the Company of the intended benefit of this Agreement, it is expressly understood and agreed among the parties hereto that those of such covenants that, if eliminated, would permit the remaining separate covenants to be enforced in such proceeding will, for the purpose of such proceeding, be deemed eliminated from the provisions hereof."
"17. Immigration Status. For purposes of federal immigration law, Employee will be required to provide to the Company documentary evidence of Employees identity and eligibility for employment in the United States. Such documentation must be provided to the Company within three (3) business days of the Start Date, or the Employees employment relationship with the Company may be terminated."
"(b) I agree that, during the term of my employment with the Company, I will not engage in any other employment, occupation, consulting or other business activity related to the business in which the Company is now involved or becomes involved during the term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company, unless I get the approval of the CEO or of the board of directors."
"Confidential Information. (a) Company Information. I agree at all times during the term of my employment (my Relationship with the Company) and thereafter to hold in strictest confidence, and not to use except for the benefit of the Company or to disclose to any person, firm or corporation without written authorization of the Board of Directors of the Company, any Confidential Information of the Company. I understand that Confidential Information means any Company proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, customer lists and customers (including, but not limited to, customers of the Company on whom I called or with whom I became acquainted during the term of my Relationship with the Company), markets, works of original authorship, photographs, negatives, digital images, software, computer programs, know-how, ideas, developments, inventions (whether or not patentable), processes, formulas, technology, designs, drawings, engineering, hardware configuration information, forecasts, strategies, marketing, finances or other business information disclosed to me by the Company either directly or indirectly in writing, orally or by drawings or observation or inspection of parts or equipment. I further understand that"
"(b) Other Employer Information. I agree that I will not, during my Relationship with the Company, improperly use or disclose any proprietary information or trade secrets of any former or concurrent employer or other person or entity and that I will not bring onto the premises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing by such employer, person or entity."
"Intellectual Property. (a) Assignment of Intellectual Property. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest in and to any original works of authorship, inventions, concepts, improvements or trade secrets, whether or not patentable or registrable under copyright or similar laws, which I may solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period of time I am in the service of the Company (collectively referred to as Intellectual Property) and which (i) are developed using the equipment, supplies, facilities or Confidential Information of the Company, (ii) result from or are suggested by work performed by me for the Company, or (iii) relate to the business, or to the actual or demonstrably anticipated research or development of the Company. The Intellectual Property will be the sole and exclusive property of the Company. I further acknowledge that all original works of authorship which are made by me (solely or jointly with others) within the scope of and during the period of my Relationship with the Company and which are protectable by copyright are works made for hire, as that term is defined in the United States Copyright Act. To the extent any Intellectual Property is not deemed to be work for hire, then I will and hereby do assign all my right, title and interest in such Intellectual Property to the Company, except as provided in Section 3(e)."
"(d) Intellectual Property Retained and Licensed. I provide below a list of all original works of authorship, inventions, developments, improvements, and trade secrets which were made by me prior to my Relationship with the Company (collectively referred to as Prior Intellectual Property), which belong to me, which relate to the Companys proposed business, products or research and development, and which are not assigned to the Company hereunder; or, if no such list is attached, I represent that there is no such Prior Intellectual Property. If in the course of my Relationship with the Company, I incorporate into Company property any Prior Intellectual Property owned by me or in which I have an interest, the Company is hereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell such Prior Intellectual Property as part of or in connection with such Company property."
"(f) Return of Company Documents. I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will not keep in my possession, recreate or deliver to anyone else) any and all works of original authorship, photographs, negatives, digital images, devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items developed by me pursuant to my Relationship with the Company or otherwise belonging to the Company, its successors or assigns. In the event of the termination of my Relationship with the Company, I agree to sign and deliver the Termination Certificate attached hereto as Appendix B."
"(a)Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employers equipment, supplies, facilities, or trade secret information except for those inventions that either:"
"I further certify that I have complied with all the terms of the Companys Employment, Confidential Information and Intellectual Property Assignment Agreement signed by me (the Intellectual Property Agreement), including the reporting of any Intellectual Property (as defined therein), conceived or made by me (solely or jointly with others) covered by the Intellectual Property Agreement."
"Subsidiary means, with respect to any non-individual Person, any corporation, partnership, limited liability company, association or other business entity of which (1)if a corporation or a limited liability company, a majority of the total voting power of securities entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (2)if a partnership, limited liability company, association or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof. For purposes of this Agreement, a Person or Persons shall be deemed to have a majority ownership interest in a partnership, limited liability company, association or other business entity if such Person or Persons shall be allocated a majority of partnership, limited liability company, association or other business entity gains or losses or shall be or control the managing director or general partner of such partnership, limited liability company, association or other business entity."
"(iii) Responsibilities. The Employee shall perform such duties as are customarily performed by a person serving in a comparable position of a company of a similar size and shall have such power and authority as shall reasonably be required to enable the Employee to perform duties under this Agreement, subject to any restrictions that may be imposed upon the Employees authority by the Board. The Employee agrees to devote all of the Employees business time (i.e., generally Monday through Friday during regular business hours), attention and service to the diligent, faithful and competent discharge of such duties for the successful operation of the Business of the Company Group. The Employee shall not be required to relocate his principal place of conducting business for the Company."
"(f) Continuing Benefits. Termination pursuant to this Agreement shall not modify or affect in any way whatsoever any vested right of the Employee to benefits payable under any retirement or pension plan or under any other employee benefit plan of the Company, and all such benefits shall continue, in accordance with, and subject to, the terms and conditions of such plans, to be payable in full to or on account of the Employee."
"may request, all memoranda, notes, plans, records, reports, computer tapes and software and other documents and data (and copies thereof) relating to the Confidential Information, Work Product (as defined below) and the business of the Company, its Subsidiaries or predecessors or all of them, that the Employee may then possess or have under the Employees control. In the event that the Employee is compelled by law to disclose any Confidential Information or the fact that Confidential Information has been made available to him by the Company, the Employee agrees that he will provide the Company with prompt written notice of such request, to the extent such notice can be given and is permitted by law, so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If a protective order or other remedy is not obtained, or the Company waives compliance with the provisions of this Agreement, the Employee agrees that he will furnish only that portion of Confidential Information and other information that is legally required."
"(b) Third Party Information. The Employee understands that the Company may receive from third parties confidential or proprietary information (Third Party 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. During the Employment Period and thereafter, and without in any way limiting the provisions in Section 3(a), Employee will hold Third Party Information in the strictest confidence and will not disclose to anyone (other than authorized personnel and consultants to the Company who need to know such information in connection with their work for the Company) or use, except in connection with his work for the Company, Third Party Information unless expressly authorized in writing by the Board."
"(c) Employee acknowledges that Employee has been notified, in accordance with the Defend Trade Secrets Act of 2016, 18 U.S.C.  1833(b), that: (i)an individual shall 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 to a federal, state, or local government official, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; (ii)an individual shall 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 a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; and (iii)an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal and does not disclose the trade secret except pursuant to court order."
"Sarbanes-Oxley Act of 2002 or any other whistleblower protection provisions of state or federal law or regulation, or (v)prevent or prohibit the Employee from filing, testifying, participating in or otherwise assisting in a proceeding relating to an alleged violation of any federal, state or municipal law relating to fraud, or any rule or regulation of the Securities and Exchange Commission or any self-regulatory organization."
"(a) Noncompetition. The Employee agrees that during the Restricted Period, the Employee will not, within or with respect to the geographical area of the United States, Canada, and any of the other states, provinces or territories within the United States or Canada and any other country, territory, province or state in which the Company operates (including by contracting with customers or suppliers) or could reasonably be anticipated to operate during the Restricted Period (the Restricted Area), except in the furtherance of the Companys Business directly or indirectly own, operate, lease, manage, control, participate in, consult with, advise, permit the Employees name to be used by, provide services for, or in any manner engage in (x)any business (including by the Employee or in association with any Person) that creates, designs, invents, engineers, develops, sources, markets, manufactures, distributes or sells any product or provides any service in or into the Restricted Area that may be used as a substitute for or otherwise competes with either the Companys Business or any product or service of the Company carried out during the period commencing two years prior to the date hereof and ending on the date of termination of the Restricted Period or contemplated during such period to be carried out by the Company or any of its Subsidiaries, (y)any business (including by the Employee or in association with any Person) that provides services or products to any current or former customer of the Company or its Affiliates that are similar to or competitive with the services or products provided by the Company or its Affiliates to such current or former customers or (z)any activity that is in competition with the Companys Business or any other business of the Company or any of its Subsidiaries; provided that nothing in this Section5 shall be deemed to diminish, amend, affect or otherwise modify any other non-competition agreement or covenant binding on the Employee. Nothing in this Section 5(a) shall prohibit the Employee from owning securities having no more than 2% of the outstanding voting power of any publicly"
"traded competitor, or participating as a passive investor in a private investment fund so long as such Employee does not have any active or managerial roles with respect to such investment, and such private investment fund does not own more than 2% of any publicly traded company engaged in the Companys Business. Restricted Period means the period beginning on the date of this Agreement and, if the Employees employment is terminated on or before the Expiration Date (i)pursuant to Section 2(d)(i)(A), ending on the one (1)year anniversary of the date on which the Employees employment is terminated and (ii)for any reason other than provided under Section 2(d)(i)(A), ending on the two year anniversary of the date on which the Employees employment is terminated; provided that if the Employees employment is terminated before the Expiration Date pursuant to Section 2(d)(i)(A), then, in its sole discretion, the Company may change the Restricted Period to end on the two (2)year anniversary of the date on which the Employees employment is terminated by extending the Base Salary payable to the Employee under Section 2(d)(i)(A)(2) to twenty four (24)months following the date of termination."
"(e) Acknowledgements. The Employee acknowledges and agrees that (i)his agreement to adhere to the restrictions in this Section5 is ancillary to, and necessary to enforce, the mutual confidentiality and non-disclosure agreements in Section3 of this Agreement; (ii)his obligation to comply with the restrictions in this Section5 shall be independent of any obligation owed to him by the Company or its Affiliates (whether under this Agreement or otherwise); (iii) no claim against the Company or its Affiliates by the Employee (whether under this Agreement or otherwise) shall constitute a defense to the enforcement by the Company or its Affiliates of the restrictions in this Section5; and (iv)the restrictions in this Section5 are reasonable and necessary and do not impose a greater restraint than necessary to protect the Companys goodwill, Confidential Information, and other legitimate business interests."
"(f) Governing Law; Venue; Waiver of Jury Trial. All questions concerning the construction, validity and interpretation of this Agreement and the exhibits to this Agreement will be governed by and construed in accordance with the domestic laws of the State of Texas, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Texas. The parties hereby irrevocably and unconditionally submit in any legal action or proceeding arising out of or relating to this Agreement to the exclusive jurisdiction of either a state court located in the County of Harris, Texas, with subject matter jurisdiction over the action or the United States District Court, Southern District of Texas, U.S.A. and, in any such action or proceeding, consent to jurisdiction in such courts and waive any objection to the venue in any such court. AS A SPECIFICALLY BARGAINED INDUCEMENT FOR EACH OF THE PARTIES TO ENTER INTO THIS AGREEMENT (EACH PARTY HAVING HAD OPPORTUNITY TO CONSULT COUNSEL), EACH PARTY EXPRESSLY: (A)WAIVES THE RIGHT TO TRIAL BY JURY IN ANY PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT, AND (B)AGREES THAT SUIT TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR TO OBTAIN ANY REMEDY WITH RESPECT HERETO SHALL BE BROUGHT EXCLUSIVELY IN THE STATE OR FEDERAL COURTS LOCATED IN HARRIS COUNTY, STATE OF TEXAS, U.S.A., OR THE UNITED STATES DISTRICT COURT FOR TEXAS, SOUTHERN DISTRICT, AND EACH PARTY HERETO EXPRESSLY AND IRREVOCABLY CONSENTS TO THE JURISDICTION OF SUCH COURTS."
"expense is incurred, and (iii)the right to payment or reimbursement or in- kind benefits hereunder may not be subject to liquidation for any other benefit; provided, however, that the foregoing clause (i)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."
"WHEREAS, as of the date of this Second Amendment, none of the conditions or events included in the definition of the term golden parachute payment that is set forth in section 18(k)(4)(A)(ii) of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit Insurance Corporation Rule 359.1(f)(l)(ii) [12 CFR 359.1(f)(l)(ii)] exists or, to the best knowledge of the Employer, is contemplated insofar as the Employer or any affiliates are concerned."
". In addition to the terms defined in the text hereof, termswith initial capital letters as used herein have the meanings assigned to them, for all purposes of thisAgreement, in the Definitions Appendix hereto, unless the context reasonably requires a broader, narrower or different meaning. The Definitions Appendix, as attached hereto, is part of this Agreement and incorporated herein."
".As of the Effective Date, the Executive will serve as the Chief Executive Officer of the Company (CEO) and be appointed as a member of the Board of Directors of the Company (the Board of Directors).The Company shall maintain the Executive in the position of CEO of the Company, and/or in such other positions as the Parties mutually may agree, for the Employment Period.In addition, the Company shall nominate the Executive for re-election to the Board of Directors as and when his term expires during the Employment Period, unless otherwise determined by the Board of Directors."
". During the Employment Period, the Executive shall receive a minimum annual base salary of $400,000, which shall be prorated for any period of less than 12months (the Base Salary).The Compensation Committee shall review the Executives Base Salary on an annual basis and may, in its sole discretion, increase, but not decrease, the Base Salary, and references in this Agreement to Base Salary shall refer to annual Base Salary as so increased.The Base Salary shall be paid in equal installments in accordance with the Companys standard policy regarding payment of compensation to executives, but no less frequently than monthly."
". During the Employment Period, the Executive shall be eligible for participation in all employee and executive benefits, including without limitation, qualified and supplemental retirement, savings and deferred compensation plans, medical and life insurance plans, and other fringe benefits, as in effect from time to time for the Companys most senior executives; provided, however, that the Executive acknowledges and agrees that he shall not be a participant in, and he hereby waives any right to participate in, any severance plan (as the same may be amended from time to time) that generally covers the employees of the Company or its Affiliates such as to preclude duplicative severance benefits with those provided to Executive under the terms of this Agreement."
".Any payments or benefits payable to Executive hereunder in respect of any calendar year during which Executive is employed by the Company for less than the entire year, unless otherwise provided in the applicable plan or arrangement, shall be prorated in accordance with the number of days in such calendar year during which he is so employed."
"Additional Payment.The Company shall pay to Executive as additional compensation (the Additional Payment), an amount equal to one half (1/2)times (in the event of a Regular Severance Payment Event), or one and a half (1.5)times (in the event of a CIC Severance Payment Event), the aggregate sum of the following compensation items:"
"to Executive over a six (6) month period in twelve (12), substantially equal bi-monthly payments that begin within twenty (20) days following the Termination Date.The payment of any Additional Payment shall be made in accordance with, and subject to, the Release requirements ofSection4.3 and the Company's standard payroll procedures.The Company shall delay payments pursuant to Section6.1to the extent required to comply with the requirements of Code Section 409A. If Executive is a specified employee within the meaning of Code Section 409A, then payment of the Additional Payments otherwise payable during the first six (6) months following the Termination Date shall be deferred for six (6) months following the Termination Date (in accordance with Section6.1) and such aggregate amount shall be paid within ten (10) days following the expiration of such 6-month period. Thereafter, the installment payments shall be made to Executive in accordance with the bi- monthly schedule set out above. In the event of Executives death prior to the payment of all installments of the (1) Additional Payment as provided above, or (2) the Remaining Additional Payment Amount as provided in Section4.1(b)(iii), the remaining installment payments shall be aggregated and paid in a single sum payment to the Executives Designated Beneficiary within sixty (60) days from Executives date of death."
". In order to receive the Termination Benefits, Executive must first execute the Release on a form provided by the Company in substantially the same form as attached hereto asAppendix B, together with any changes thereto that the Company deems to be necessary or appropriate to comply with applicable law or regulation.Pursuant to the Release, thereby Executive agrees to release and waive, in return for such severance benefits, any claims that he may have against the Company including, without limitation, for unlawful"
"The Company shall deliver the Release to Executive within ten (10) days after the Employment Termination Date.The Executive must return the executed Release within the twenty-one (21) or forty-five (45) day period, as applicable, following the date of his receipt of the Release. If the conditions set forth in the preceding sentence are not satisfied by Executive, the Termination Benefits shall be forfeited hereunder."
"confidence, and shall not use any Confidential Information except for the benefit of the Company or its Affiliates, in accordance with the duties assigned to Executive.Executive shall not, at any time (either during or after the term of Executives employment), disclose any Confidential Information to any Person (except other Persons who have a need to know the information in connection with the performance of services for the Company or an Affiliate), or copy, reproduce, modify, decompile or reverse engineer any Confidential Information, or remove any Confidential Information from the Companys premises, without the prior written consent of the Compensation Committee, or permit any other Person to do so.Executive shall take reasonable precautions to protect the physical security of all documents and other material containing Confidential Information (regardless of the medium on which the Confidential Information is stored).This agreement and covenant applies to all Confidential Information, whether now known or later to become known to Executive."
"The Company has and will disclose to the Executive, or place the Executive in a position to have access to or develop, trade secrets and Confidential Information of the Company or its Affiliates; and/or has and will place the Executive in a position to develop business goodwill on behalf of the Company or its Affiliates; and/or has and will entrust the Executive with business opportunities of the Company or its Affiliates.As part of the consideration for the compensation and benefits to be paid to the Executive hereunder; to protect the trade secrets and Confidential Information of the Company and its Affiliates that have been and will in the future be disclosed or entrusted to the Executive, the business goodwill of the Company and its Affiliates that has been and will in the future be developed in the Executive, or the business opportunities that have been and will in the future be disclosed or entrusted to the Executive; and as an additional incentive for the Company to enter into this Agreement, the Company and the Executive agree to the noncompetition and the nonsolicitation obligations set forth in this Agreement."
". The Executive shall not, directly or indirectly for himself or for any other Person, in any geographic area or market where (a) the Company or any Affiliate is conducting any business or actively reviewing prospects or (b) the Company or an Affiliate has conducted any business during the previous 12month period:"
"Company or such Affiliates, or hire or assist in the hiring of any such employee by any Person not affiliated with the Company, unless such employee has terminated employment with the Company and its Affiliates for at least thirty (30) days before such initial solicitation.These nonsolicitation obligations shall apply during the period that the Executive is employed by the Company and during the two-year period commencing on the Termination Date.Notwithstanding the foregoing, the provisions of this Section5.8 shall not restrict the ability of the Company or its Affiliates to take any action with respect to the employment or the termination of employment of any of its employees, or for the Executive to participate in his capacity as an officer of the Company."
"The Executive acknowledges that money damages would not be sufficient remedy for any breach of Article 5 by the Executive, and the Company shall also be entitled to specific performance as an available remedy for any such breach or any threatened breach. The remedies provided in this Section5.14shall not be deemed the exclusive remedies for a breach of Article 5, but shall be in addition to all remedies available at law or in equity."
".All writings, records, and other documents and things comprising, containing, describing, discussing, explaining, or evidencing any Confidential Information, and all equipment, components, parts, tools, and the like in Executives custody, possession or control that have been obtained or prepared in the course of Executives employment with the Company shall be the exclusive property of the Company, shall not be copied and/or removed from the premises of the Company, except in pursuit of the business of the Company, and shall be delivered to the Company, without Executive retaining any copies or electronic versions, promptly upon notification of the termination of Executives employment or at any other time requested by the Company. The Company shall have the right to retain, access, and inspect all property of any kind in the office or premises of the Company."
"Notwithstanding anything to the contrary in this Agreement, with respect to any amounts payable to Executive under this Agreement in connection with a termination of Executives employment that would be considered non-qualified deferred compensation that is subject to, and not exempt under, Section 409A, a termination of employment shall not be considered to have occurred under this Agreement unless and until such termination constitutes Executives Separation From Service."
".The Company may withhold and deduct from any benefits and payments made or to be made pursuant to this Agreement (a) all federal, state, local, foreign, and other taxes as may be required pursuant to any law or governmental regulation or ruling, (b) all other normal employee deductions made with respect to Companys employees generally, and (c) any advances made to Executive and owed to Company."
".The right to receive payments under this Agreement shall not be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge or encumbrance by Executive, his dependents or beneficiaries, or to any other Person who is or may become entitled to receive such payments hereunder.The right to receive payments hereunder shall not be subject to or liable for the debts, contracts, liabilities, engagements or torts of any"
".The Company agrees to indemnify the Executive with respect to any acts or omissions he may commit during the period during which he is an officer, director and/or employee of the Company or any Affiliate, and to provide him with coverage under any directors and officers liability insurance policies, in each case on terms not less favorable than those provided to any of its other directors and officers as in effect from time to time."
The Arbitrator shall be empowered to impose sanctions and to take such other actions as it deems necessary to the same extent a judge could impose sanctions or take such other actions pursuant to the Federal Rules of Civil Procedure and applicable law.Each Party agrees to keep all Disputes and arbitration proceedings strictly confidential except for the disclosure of information required by applicable law.
"(d) The sale consummation, or other disposition of all or substantially all of the assets of the Company, unless immediately following such sale or other disposition, (i) substantially all of the holders of the Outstanding Company Voting Securities immediately prior to the consummation of such sale or other disposition beneficially own, directly or indirectly, more than fifty percent (50%) of the common stock of the corporation acquiring such assets in substantially the same proportions as their ownership of Outstanding Company Voting Securities immediately prior to the consummation of such sale or disposition, and (ii) at least a majority of the members of the board of directors of such corporation (or its parent corporation) were members of the Incumbent Board at the time of execution of the initial agreement or action of the Board providing for such sale or other disposition of assets of the Company; or ---|--- A-2"
"means any information or material known to, or used by or for, the Company or an Affiliate (whether or not owned or developed by the Company or an Affiliate and whether or not developed by Executive) that is not generally known by other Persons in the Business. For all purposes of the Agreement, Confidential Information includes, but is not limited to, the following: all trade secrets of the Company or an Affiliate; all non-public information that the Company or an Affiliate has marked as confidential or has otherwise described to Executive (either in writing or orally) as confidential; all non- public information concerning the Companys or Affiliates products, services, prospective products or services, research, prospects, leases, surveys, seismic data, drilling data, designs, prices, costs, marketing plans, marketing techniques, studies, test data, leasehold and royalty owners, investors, suppliers and contracts; all business records and plans; all personnel files; all financial information of or concerning the Company or an Affiliate; all information relating to the Companys operating system software, application software, software and system methodology, hardware platforms, technical information, inventions, computer programs and listings, source codes, object codes, copyrights and other intellectual property; all technical specifications; any proprietary information belonging to the Company or an Affiliate; all computer hardware or software manuals of the Company or an Affiliate; all Company or Affiliate training or instruction manuals; all Company or Affiliate electronic data; and all computer system passwords and user codes."
"shall mean that Executive is entitled to receive longterm disability (LTD) income benefits under the LTD plan or policy maintained by the Company or an Affiliate that covers Executive.If, for any reason, Executive is not covered under such LTD plan or policy, then Disability shall mean a permanent and total disability as defined in Code Section 22(e)(3) and Treasury regulations thereunder.Evidence of such Disability shall be certified by a physician acceptable to both the Company and Executive.In the event that the Parties are not able to agree on the choice of a physician, each shall select one physician who, in turn, shall select a third physician to render such certification.All costs relating to the determination of whether Executive has incurred a Disability shall be paid by the Company.Executive agrees to submit to any examinations that are reasonably required by the attending physician or other healthcare service providers to determine whether he has a Disability."
"For all purposes of this definition of Severance Payment Event, any transfer of the Executives Employment from the Company to an Affiliate, from an Affiliate to the Company, or from one Affiliate to another Affiliate, is not a Separation From Service of the Executive (though any such transfer might, depending on the circumstances, constitute or result in a Separation From Service by the Executive for Good Reason).Any termination by the Company of the Executive for Cause, or by the Executive for Good Reason, shall be communicated by Notice of Termination to the other Party."
"Severability.Should any provision of this Agreement be declared or be determined by any court of competent jurisdiction to be illegal, invalid or unenforceable, the Agreement shall first be reformed to make the provision at issue enforceable and effective to the full extent permitted by law.If such reformation is not possible, all remaining provisions of this Agreement shall otherwise remain in full force and effect and shall be construed as if such illegal, invalid or unenforceable provision has not been included herein. ---|---|---|--- |"
"Agreement to Return Company Property/Documents. Executive acknowledges that his employment with the Company and its Affiliates has terminated effective as of the Termination Date.Accordingly, Executive agrees that, in accordance with the Companys policy:(i) Executive will not take with him, copy, alter, destroy or delete any files, documents or other materials whether or not embodying or recording any Confidential Information (as defined in the Employment Agreement), including copies, without obtaining in advance the written consent of an authorized Company representative; and (ii) Executive will promptly return to the Company all Confidential"
"Also, during the Term of this Agreement, the Executive shall serve as the Chief Executive Officer of (i) Anu Life Sciences, Inc., a Florida corporation and a wholly-owned subsidiary of the Company (Anu), primarily responsible for research and development activities and the manufacturing of Anus Amnio and other Regen products but excluding Mint Organics, Inc. contemplated entry and involvement into the medical cannabis industry in the state of Florida; (ii) General Surgical Florida, Inc. a Florida corporation and a wholly-owned subsidiary of the Company (General Surgical), primarily responsible for the management of General Surgical."
"WHEREAS, this Agreement supersedes and replaces in its entirety that certain [REFERENCE TO EXISTING EMPLOYMENT AGREEMENT] (the Prior Agreement) or any other employment or severance agreement entered into by the Executive, on the one hand, and the Company or its affiliates, on the other (as well as any employment or severance agreement that was entered into by the Executive and Limited Brands, Inc. or its affiliates and assumed by the Company or its affiliates) provided, however, nothing in this Agreement shall cancel or modify any previous grant of units which was previously granted to the Executive or any rights to repurchase such units. Upon execution of this Agreement, the Prior Agreement shall cease to have any further legal force or effect whatsoever."
"(a)If the Executive's employment is terminated by the Company other than for death, Disability or Cause (including a termination by reason of the Company's written notice to the Executive of its decision not to extend the Agreement pursuant to Section 1 hereof) or by the Executive for Good Reason, the Company's sole obligations hereunder shall be as follows:"
"(b)If during the term of the Agreement (including any extensions thereof), the Executive's employment is terminated by the Company for Cause or by reason of the Executive's death, or if the Executive gives the Company a written notice of termination other than one for Good Reason, the Company's sole obligation hereunder shall be to pay the Executive the following amounts earned hereunder but not paid as of the Termination Date: (i) Base Salary, (ii) reimbursement for any and all monies advanced or expenses incurred pursuant to Section 7(a) through the Termination Date, and (iii) any earned compensation which the Executive had previously deferred (including any interest earned or credited thereon) pursuant to the Company's Supplemental Retirement Plan (collectively, the Accrued Compensation). The Executive's entitlement to any other benefits shall be determined in accordance with the Company's employee benefit plans then in effect."
"(3)Subject to the Executive's timely election of continuation coverage under COBRA, for up to eighteen (18) months following the Termination Date, the Company shall, at its expense, provide to the Executive and the Executive's dependents medical and dental benefits similar in the aggregate to those provided to the Executive immediately prior to the Termination Date; provided, however, that the Company's obligation to provide such benefits shall cease upon the earlier of (i) the Executive's becoming eligible for such benefits as the result of employment with another employer and (ii) the expiration of the Executive's 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"
"(d)Non-Solicitation. During the No-Raid Period described below, the Executive shall not directly or indirectly solicit, induce or attempt to influence any employee to leave the employment of the Company, nor assist anyone else in doing so. Further, during the No-Raid Period, the Executive shall not, either directly or indirectly, alone or in conjunction with another party, interfere with or harm, or attempt to interfere with or harm, the relationship of the Company, with any person who at any time was an employee, customer or supplier of the Company, or otherwise had a business relationship with the Company."
"(g)The provisions of this Section 10 shall survive any termination of this Agreement, and the existence of any claim or cause of action by the Executive against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company of the covenants and agreements of this Section 10."
"or penalty that may be imposed on the Executive by Code Section 409A or damages for failing to comply with Code Section 409A. 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 upon or following a termination of employment unless such termination is also a separation from service within the meaning of Code Section 409A 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. For purposes of Code Section 409A, the Executive's right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company."
"10.5Obligation of Employers upon Termination without Cause or Employee's Termination with Good Reason Unrelated to a Change in Control. In the event that during the Employment Period, an Employer terminates the Employee's employment without Cause under Section 10.2, or the Employee terminates employment for Good Reason under Section 10.3; or the Employee's employment is terminated for any other reason except (i) for Cause under Section 10.1, (ii) without Good Reason under Section 10.4, (iii) for Disability or death pursuant to Section 9, and such termination is not related to a Change in Control; the Bank shall pay and provide to the Employee the following:"
"The Employee is a ""Specified Employee"" if the Employee is a ""key employee"" (as defined in Code Section 416(i) without regard to Code Section 416(i)(5)) and the stock of the Bank or the Company is publicly traded on an established securities market or otherwise on the date of termination of employment. The Employee is a ""key employee"" during the period described below if the Employee is one of the following during the 12-month period ending on any December 31 (the ""identification date""):"
"12.Deduction of Taxes and Adjustments re Code Section 280G. Each Employer may deduct from any amounts required to be paid to the Employee under this Agreement any amounts required to be withheld by the Employer pursuant to federal, state, or local law relating to taxes or related payroll deductions. In the event that any payments, distributions or benefits to or for the benefit of the Employee from the Bank or the Company, whether paid or payable, distributed or distributable, would constitute a ""parachute payment"", as defined in Section 280G of the Internal Revenue Code of 1986, as amended, or any successors thereto (the ""Code""), payments under this Agreement shall be reduced to the largest amount that will eliminate both the imposition of the excise tax imposed by Section 4999 of the Code and the disallowance as deductions to the Company or the Bank under Section 280G of the Code of any such payments, distributions or benefits. The determination of any reduction in the payments under this Agreement pursuant to this paragraph shall be made by a major national or regional accounting firm selected by the Bank, whose determinations shall be conclusive and binding on the Employers and the Employee for all purposes. The Employers and the Employee shall furnish such accounting firm with such information and documents as the accounting firm may reasonably request in order to make its determinations under this Section 12. The Bank shall bear all costs the accounting firm may reasonably incur in connection with its services. "
"14.Adjustment between the Company and the Bank. The Company and the Bank acknowledge that although the Employee is generally paid solely by the Bank, he also performs some services for the Company, and the Company pays the Bank periodically an amount necessary to reimburse the Bank for amounts paid to the Employee by the Bank for services actually rendered to the Company."
"21.Section 409A. This Agreement is intended to be exempt from Section 409A of the Code to the greatest extent possible, to comply with Section 409A to the extent it is applicable and is to be interpreted and operated consistently with those intentions. To the extent that Section 409A applies to payments in the event of termination of employment under this Agreement, such payments shall be made only if the termination of employment is a ""separation from service"" within the meaning of Treas. Reg. Section 1.409A-1(h). "
"23.Arbitration. Except as stated in the Non-Compete and Non-Solicitation Agreement, any dispute, controversy or claim arising under or in connection with this Agreement shall be settled exclusively by arbitration, conducted in Grand Rapids, Michigan, before a panel of three arbitrators, in accordance with the rules of the American Arbitration Association then in effect. Judgment may be entered on the arbitrators' award in any court having jurisdiction. Unless otherwise provided in the Rules of the American Arbitration Association, the arbitrators shall, in their award, allocate between the parties the arbitrators' fees and expense, in such proportions as the arbitrators deem just. Each party shall be responsible for their own attorneys' fees. "
"The Released Parties include the Company, the Bank, the Affiliates of each of the Company and the Bank, and all of their owners, officers, directors, employees and agents. The Affiliates of the Company and the Bank include the respective predecessors, successors, parents, subsidiaries and other affiliated organizations of each of the Company and the Bank. ---|---|--- "
"Employee has 21 days after receiving this Agreement to consider this Agreement. Employee may elect in Employee's sole discretion to sign this Agreement before expiration of the 21-day period and if Employee does so, it is agreed that Employee will waive the balance of the 21-day period. Immediately upon signing this Agreement, Employee will deliver the signed copy to Bank's Senior Vice President of Human Resources. If Employee does not sign this Agreement within the 21-day period, the Agreement is withdrawn by Employers and is null and void. ---|---|--- "
"7.Except for Employee's Employment Agreement and Non-Compete and Non-Solicitation Agreement, this Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to the subject matter hereof. No change, modification, amendment, addition to or alleged waver of this Agreement or any of its terms, provisions or covenants shall be valid unless it is in writing and signed by the party against whom it is sought to be enforced. "
"10.This Agreement and any matters relating hereto shall be construed in accordance with and shall be governed by the laws of the United States of America and the internal laws of the State of Michigan as applicable, without application of choice of law principles. The parties agree that any action related to this Agreement shall be brought and heard in the Circuit Court for Kent County, Michigan or the United States District Court for the Western District of Michigan and the parties agree and consent to jurisdiction and venue in those courts. "
"(iii)Change in the ownership of a substantial portion of a Responsible Corporations assets. A change in the ownership of a substantial portion of a Responsible Corporations assets occurs on the date that any one person, or more than one person acting as a group, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the Responsible Corporation that have a total gross fair market value equal to or more than 40 percent of the total gross fair market value of all of the assets of the Responsible Corporation immediately prior to such acquisition or acquisitions. For this purpose, gross fair market value means the value of the assets of a Responsible Corporation, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets. No Change in Control shall be deemed to occur under this paragraph (iii) when there is a transfer to:"
"1.2 Interpretation. Unless a clear contrary intention appears, as used in this Agreement (a) the singular includes the plural and vice versa, (b) reference to any document means such document as amended from time to time, (c) include and including means including without limiting the generality of any description preceding such term, (d) the word or is not exclusive, unless otherwise expressly stated, (e) the terms hereof, herein, hereby, and derivative or similar words refer to this entire Agreement, and (f) headings are for convenience only and do not constitute a part of this Agreement."
"3.2 No Conflicting Obligations. Executive represents and warrants to the Employer that he is under no obligation or commitment, whether contractual or otherwise, that is inconsistent with his obligations under this Agreement. Executive represents and warrants that he will not use or disclose, in connection with his employment by the Employer, any trade secrets or other proprietary information or intellectual property in which Executive or any other person has any right, title, or interest and that his employment by the Employer as contemplated by this Agreement will not infringe or violate the rights of any other person or entity. Executive represents and warrants to the Employer that he has returned all property and confidential information belonging to any prior employers."
"5.1 Base Salary. Employer shall pay Executive an annual salary of $210,000 (the Base Salary) in accordance with Employers regular payroll practices. This Base Salary is subject to periodic review and adjustment, provided, however, that the Base Salary will not be decreased other than an across-the- board reduction on a percentage basis for all Named Executive Officers."
"(b) a pro rata portion (equal to the number of days in the year through the date of termination relative to the total number of days in the year) of Executives STIP bonus for the year in which employment terminates, paid no later than March 15th of the following year and based on achievement of the established performance targets;"
"(e) an amount equal to two times the average of his target and actual STIP award for the calendar year immediately preceding the resignation to be paid out in 24 equal monthly installments commencing on the 1st day of the month following the 3 month anniversary of the termination date and continuing on the 1st day of each month thereafter until paid in full (subject, however, to delay as provided in Section 13.11 of this Agreement; and"
"The Employer will hold harmless, indemnify, and provide a defense to Executive to the fullest extent permitted by Montana law with respect to any claims, actions, suits, or proceedings, brought against Executive, in any jurisdiction, by reason of, or arising out of, Executives service as, or the performance of Executives duties as, an employee, director, officer, and/or agent of the Employer, provided that such claims, actions, suits, or proceedings are not found by a court or arbitrator to have arisen out of Executives willful misconduct or gross negligence. The Employer will pay, and subject to any legal limitations, advance all costs, expenses, and losses, including without limitation reasonable attorneys fees, costs of settlements, and consequential damages, actually and necessarily incurred by Executive in connection with the defense of any such claims, actions, suits, or proceedings, and in connection with any appeal thereof."
"11.1 Competition. From and after the termination of Executives employment with Employer (the Termination Date) until the second anniversary of the Termination Date (the Two-Year Period), Executive may compete with Employer and own, operate, manage, control, engage in, participate in, invest in, hold any interest in, assist, aid, act as a consultant to or otherwise advise in any way, be employed by or perform any services (alone or in association with any person) for, any person (or on behalf of Executive) that engages in or owns, invests in, operates, manages or controls any venture or enterprise that directly competes with Employer. If Executive, without the prior approval of the Employer, competes with Employer or owns, operates, manages, controls, engages in, participates in, invests in, holds any interest in, assists, aids, acts as a consultant to or otherwise advises in any way, is employed by or performs any services (alone or in association with any person) for any person (or on behalf of Executive) that engages in or owns, invests in, operates, manages or controls any venture or enterprise that directly competes with Employer at any time during the Two-Year Period, Executive shall pay Employer an amount equal to 100% of all gross revenue generated by Executive or other person owned, operated, managed, controlled, engaged in, participated in, invested in or held by Executive or assisted, aided, consulted for or otherwise advised by Executive in any way or by which Executive was employed or for which Executive performed services (alone or in association with any person) during the Two-Year Period from any customers who were customers of Employer on the Termination Date or any time during the thirty-day period immediately preceding the Termination Date."
"Any dispute arising out of or relating to this Agreement shall be settled or made by binding arbitration at a location in Billings, Montana pursuant to the Montana Uniform Arbitration Act or other applicable Montana law, and where not inconsistent, in accordance with the Commercial Arbitration Rules of the American Arbitration Association now or hereafter in effect. The parties to the dispute shall unanimously select the arbitrator. In the event the parties to the dispute are unable to unanimously select an arbitrator within ten (10) days of notice from any party to the dispute to all other parties to the dispute of the need to select an arbitrator, the arbitrator shall be selected in accordance with the Montana Uniform Arbitration Act. The parties to the dispute shall confer with the arbitrator and together shall decide upon a time and date for the arbitration hearing. If the parties to the dispute and the arbitrator are unable to agree upon a time and date for the arbitration hearing, the arbitrator shall determine the time and date for the arbitration hearing. The parties to the dispute shall equally split the arbitrators fees and costs, unless the arbitrator determines that any party to the dispute has defaulted or asserted an unreasonable business position during the arbitration, in which event the party to the dispute who defaulted or asserted the unreasonable business position shall pay all or a part of the arbitrators fees and costs, as the arbitrator, in his discretion, determines. In agreeing to the method of dispute resolution set forth in this arbitration clause, the parties specifically acknowledge that each prefers to resolve disputes by arbitration rather than through the formal court process. FURTHER, EACH OF THE M UNDERSTANDS THAT B Y AGREEING TO ARBITRATION EACH OF THEM IS WAIVING THE RIGHT TO RES OLVE DISPUTES ARISING FROM OR RELATING TO THIS AGREEMENT IN COURT BY A JUDGE OR JURY, THE RIGHT TO A JURY TRIAL, THE RIGHT TO DISCOVERY A VAILABLE UNDER THE M ONTANA RULES OF CIVIL PROCEDURE, THE RIGHT TO FINDINGS OF FACT BASED ON THE EVIDENCE, AND TH E RIGHT TO ENFORCE THE LAW APPLICABLE TO ANY CA SE ARISING OUT OF OR RELATING TO THIS AGREEMENT BY WAY OF APPEAL, EXCEPT AS AL LOWED UNDER THE MONTANA UNIFORM ARBITRATION ACT. Each of them also acknowledges that each has had an opportunity to consider and study this arbitration provision, to consult with counsel, to suggest modifications or changes, and, if requested, has received and reviewed a copy of the Montana Uniform Arbitration Act."
"13.1 Key-Employee Insurance. Executive agrees that the Employer may, from time to time, apply for and take out in its own name and at its own expense, life, health, accident, or other insurance upon Executive that the Employer may deem necessary or advisable to protect its interests; and Executive agrees to submit to any medical or other examination necessary for such purposes and to assist and cooperate with the Employer in preparing such insurance; and Executive agrees that he shall have no right, title, or interest in or to such insurance."
"13.6 Notices. All notices required or permitted under this Agreement shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified; (ii) when sent by confirmed facsimile or electronic mail if sent during normal business hours of the recipient, if not, then on the next business day; (iii) upon receipt, if sent by registered or certified mail or nationally recognized overnight courier. All notices shall be sent to Employer or Executive at the address set forth on the first page of this Agreement, or at such other address as either party may designate by notice pursuant to this Section."
"| 5.1.| Salary. The Company shall pay to the Employee as compensation for the employment services an aggregate base salary in the gross amount set forth in Exhibit A (the Salary). Except as specifically set forth herein and except all insurance and social benefits stated in section 6 hereunder, the Salary includes any and all payments to which the Employee is entitled from the Company hereunder and under any applicable law, regulation or agreement. The Employee's Salary and other terms of employment may be reviewed and updated by the Company's management, from time to time, at the Company's discretion. The Salary is to be paid to the Employee in accordance with the Company's normal and reasonable payroll practices, after deduction of applicable taxes and like payments. ---|---|--- | |  | 5.2.| The Employee hereby declares and explicitly agrees that employee's office is of managerial level that requires special degree of trust, and therefore the provisions of the Hours of Work and Rest Law 5711-1951 shall not apply to the Employee's employment. | |  | 5.3.| Payment of the Salary shall be made no later than the 9th day of each calendar month after the month for which the salary is being made. "
"| 6.2.2| Upon Employees resignation of his employment in the Company for any reason other than for Cause the Company shall only automatically release and transfer to Employee all rights and payments accrued in the Insurance Scheme (and will fill and submit all required forms in this regard). ---|---|--- | |  | 6.2.3| Notwithstanding anything above to the contrary, in any of the following events: (i) the event of termination for Cause; (ii) termination in circumstances that deny the Employee from the right to receive severance payments under applicable law; or (iii) in the event of resignation in circumstances where if not for Employee's resignation, the Company could have dismissed the Employee for Cause  the Employee shall not be entitled to any severance pay, and the funds accumulated in the Insurance Scheme towards severance pay will be returned to the Company. "
"Employee shall be entitled to a Bonus pursuant to a personal bonus scheme, which shall be determined on a yearly basis and shall paid based on MICT achieving any: (i) closing of a merger or acquisition transaction by MICT and/or its subsidiaries of a target company or business (ii) the closing of an equity and/or debt fund raising pursuant to a private or public offering (""Entitling Transaction"")."
"Subject to the receipt of approval required by the compensation committee and/or the board of directors of Micronet Enertec Technologies Inc. (""MICT"" or ""Parent Company""), pursuant to the terms and conditions of the MICT 2012 Incentive Share Option Plan (the ""Plan""), Employee shall be granted options to purchase up to 100,000 shares of the common stock, $0.001 par value per share, at the exercise price of $4.3 per share, of Micronet Enertec Technologies Inc. (the Option). As aforementioned, the grant of the Options and the exercise price thereof are subject to the final approval of MICT's Board of Directors (which will be granted prior to the Commencement Date), to the Plan and to a specific stock option agreement to be executed under the Plan."
Company Phone | The Employee is entitled to a Company paid mobile phone. The Employee will transfer his personal mobile phone number 054-9910807 to the ownership of the Company and the Company will transfer back the ownership of this number to the Employee once the Employee will cease to be an employee of the Company. ---|---  |  Additional Agreements | None. 
"| 2.4.| Upon termination of Employee's employment with the Company, Employee will promptly deliver to the Company all documents and materials of any nature pertaining to Employee's work with the Company, and will not take with Employee any documents or materials or copies thereof containing any Proprietary Information. ---|---|--- | |  | 2.5.| At all times, both during Employee's employment with the Company and thereafter, Employee will keep in confidence and trust all information in connection with his employment terms with the Company, including, without limitation, the Employee's salary, social and other benefits, terms regarding Options and any other related information (the ""Employment Terms""). Employee will not disclose or discuss any of the Employee's Employment Terms or anything relating to it, except with the Employee's legal counsel, without the written consent of the Company. | |  | 2.6.| Employee's undertakings set forth in this Section 2 shall remain in full force and effect after termination of this Agreement or any renewal thereof until the Proprietary Information becomes part of the public knowledge except as a result of the breach of the Agreement or this Exhibit by the Employee. "
"| 4.3.| If any one or more of the terms contained in this Section 4 shall for any reason be held to be excessively broad with regard to time, geographic scope or activity, the term shall be construed in a manner to enable it to be enforced to the extent compatible with applicable Israeli law. ---|---|--- "
"2. Title and Nature of Duties.  During the Employment Period, Executive shall serve as the President of the DMV Portfolio (as defined in Exhibit A).Executive shall have such duties and obligations as are customary for such position and shall perform such other lawful duties as may be assigned from time to time by the Company.Executive shall not engage in additional gainful employment of any kind or undertake any role or position, other than charitable or civic activities, whether or not for compensation, with any person or entity during the Employment Period without advance written approval of the Board of Directors of the Company (the Board). ---|--- |"
"a. Base Salary. During the Employment Period, Executive shall receive an initial base salary of $450,000 per year (Base Salary), payable in accordance with the Companys normal payroll schedule and procedures, which shall increase in each March during the Employment Period, commencing in March 2018, by 2.5% over the Base Salary in effect during the preceding calendar year only if the DMV Portfolio achieves 85% (or more) of the Adjusted EBITDA Target (as defined in Exhibit A) for the prior calendar year. Executives salary shall be subject to all applicable federal, state and local withholding taxes. ---|--- |"
"Subject to Executives notice and cure opportunity under Section 5(a)(ii) above, the Company must terminate his employment within ninety (90) days following the expiration of the cure period in order for such termination to be considered for Cause for purposes of this Agreement. Subject to the foregoing sentence, if the Company terminates Executives employment for Cause, the Company shall pay the 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 Section 4) through the date of termination, and the Company shall have no further obligations to Executive hereunder from and after the date of termination; provided, however, that the disposition of any PBRSUs and TBRSUs awarded to Executive prior to the date of termination shall be as set forth on Exhibit D."
"b. Termination by the Company without Cause.The Company shall have the right to terminate Executives employment without Cause by giving Executive not less than sixty (60) days prior written notice and in such event, the Company shall pay Executive (i) 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 and (ii) subject to the provisions of Sections 14 and 26 below, an amount equal to Executives Base Salary (as determined on the date of termination) that would be payable for the remaining months in the Employment Period to be paid pursuant to the Companys standard payroll practices over the remaining term of the Employment Period, less applicable taxes and deductions. In addition, in the event that this Agreement is terminated pursuant to the provisions of this Section 5(b), 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 Section 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(b); 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 (as defined in Exhibit F). 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. ---|--- |"
"9. Non-Disparagement.During the Employment Period and at all times thereafter, each party hereto agrees not to make any statements that disparage or cast in an unfavorable light the other partys reputation, business operations, products, services, or any of their past or present executives, officers or employees; provided, however, that nothing herein shall prevent either party hereto from making truthful statements (even if disputed) in any legal proceedingor to any governmental agency, or to other employees or agents of the Company, the DMV Portfolio or the TCV Entities or to the Board. ---|--- -10-"
"26. Section 409A. Notwithstanding any other language in this Agreement, Executive and the Company agree that if Executive is deemed to be a specified Executive under Section409A of the Code, or any successor or similar provision, the payment of any amounts under this Agreement that would be treated as non-qualified deferred compensation (other than Base Salary) shall be payable beginning on the first day of the seventh month after the date of termination. ---|--- -14-"
"Nothing contained in this Exhibit B and Executives Evidence of Award will confer upon Executive any right to be employed by or remain employed by the Company or any of its subsidiaries or affiliates, or limit or affect in any manner the right of the Company and its subsidiaries and affiliates to terminate Executives employment or modify Executives compensation."
"TBRSUs having an at-target value of $500,000 on the date of grant. The actual number of TBRSUs to be granted will be based on (i) Market Value per Share (as defined in the Plan) of the Companys Series A Common Stock on the date of grant and (ii) the DMV Portfolios achievement of the Adjusted EBITDA Target for the prior calendar year as described in the paragraph below. Performance Period:"
"Nothing contained in this Exhibit C and Executives Evidence of Award will confer upon Executive any right to be employed by or remain employed by the Company or any of its subsidiaries or affiliates, or limit or affect in any manner the right of the Company and its subsidiaries and affiliates to terminate Executives employment or modify Executives compensation."
"In order to ensure the speedy, impartial resolution of all disputes between Tim Storer (the Employee) and A. H. Belo Corporation, and all affiliated entities (the Company), which relate to, or arise from the parties employment relationship, the parties agree to enter into this Arbitration Agreement, effective as of March 2, 2017.Each party recognizes, however, that this Agreement is not, and shall not be construed as, a contract of employment and it does not alter the Employees at-will employment status in any way.Nothing in this Agreement shall prevent the Company from taking any action with respect to the Employee prior to a claim or determination of any claim under this Arbitration Agreement."
"5.All disputes or claims must be raised by written notice containing a statement setting forth the nature of the dispute, the amount involved, if any, and the remedy sought.The notice of intent to arbitrate must be received by the other party within any applicable statute of limitation period as if such claim were filed in court in the absence of this Agreement.If notice is not timely received, such claim shall be barred.Notice must be sent by certified or registered mail, return receipt requested."
"7.This Agreement shall be governed by the law of the state in which the Employee was most recently employed by the Company and/or federal law, as applicable.Either party shall be entitled to seek an injunction in any court of competent jurisdiction to compel the other party to submit to arbitration, in accordance with the terms and provisions of this Agreement, with respect to any and all claims covered by this Agreement."
"8.Except as provided in this Agreement, all arbitrations will be conducted in accordance with the current Commercial Dispute Resolution Rules of the American Arbitration Association (AAA), before an arbitrator listed on the National Roster of Commercial Arbitrators and who is licensed to practice law in the state in which arbitration is conducted.All arbitrations will take place in the city in which the Employee was most recently employed by the Company.Any controversy over whether a dispute is an arbitrable dispute or as to the interpretation or enforceability of this Section 8 with respect to such arbitration shall be determined by the arbitrator."
"12.The parties will equally share all fees and costs charged in the arbitration by the AAA and any other incidental expenses unless the Company is required by law to bear such expenses, in which case it shall pay them.Each party shall pay for its own costs and attorneys fees, if any."
"If required achievement level (expressed as the percentage resulting from the immediately preceding bullet point) of a performance target (established pursuant to Exhibits A, B and C, as applicable) has been met for such calendar year as determined pursuant to this Exhibit F, then the Executive will be entitled to receive a cash payment equal to the pro rata amount of the performance award relating to that performance target established pursuant to Exhibits A, B and C, as applicable, such pro rata amount equal to the product of (x) the dollar value of the performance award relating to that achievement level of that performance target (established pursuant to Exhibits A, B and C, as applicable) and (y)the Pro Rata Ratio. ---|---|---|--- "
"Executive achieved 100% of each of his Annual EBITDA Target and TCV Target for calendar year 2018, entitling him to (1) in the first quarter of 2019, a $300,000 Annual Bonus and the first payment of his 2019 TBRSU grant ($200,000 in the form of $120,000 in value of shares of the Companys Series A Common Stock and $80,000 in cash); (2) in the first quarter of 2020, the second payment of his 2019 TBRSU grant ($150,000 in the form of $90,000 in value of shares of Series A Common Stock and $60,000 in cash); and (3) in the first quarter of 2021, the third and final payment of his 2019 TBRSU grant ($150,000 in the form of $90,000 in value of shares of Series A Common Stock and $60,000 in cash). ---|---|---|--- |"
"Through February 29, 2020, Executive has met each of his Annual EBITDA Target and TCV Target on an annualized basis at a 100% level for 2020, entitling him to a prorated 60/366ths of (1) in the first quarter of 2021, a $300,000 Annual Bonus and the first payment of his 2021 TBRSU grant ($200,000 in the form of $120,000 in value of shares of Series A Common Stock and $80,000 in cash); (2) in the first quarter of 2022, the second payment of his 2021 TBRSU grant ($150,000 in the form of $90,000 in value of shares of Series A Common Stock and $60,000 in cash); and (3) in the first quarter of 2023, the third and final payment of his 2021 TBRSU grant ($150,000 in the form of $90,000 in value of shares of Series A Common Stock and $60,000 in cash). ---|---|---|--- |"
"(f) Business Expenses. During the Term, the Company shall reimburse the Executive for all reasonable, documented, out-of-pocket travel and other business expenses incurred by the Executive in the performance of the Executives duties to the Company in accordance with the Companys applicable expense reimbursement policies and procedures, as in effect from time to time."
"(b) Notice of Termination. Any termination of the Executives employment by the Company or by the Executive under this Section4 (other than a termination pursuant to Section4(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), (vi), (vii)or (viii), setting forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executives employment under the provision so indicated, and (iii)specifying a Date of Termination, which, if submitted by the Executive, shall be at least thirty (30) days following the date of such notice; provided, however, that a Notice of Termination delivered by the Company pursuant to Section4(a)(ii)shall not be required to specify a Date of Termination, in which case the Date of Termination shall be determined pursuant to Section4(a)(ii); and provided, further, that in the event that the Executive delivers a Notice of Termination (other than a Notice of Termination under Section4(a)(viii)above) 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 Section4(a)(ii)or Section4(a)(vii)above) may provide for a Date of Termination on the date the Executive receives the Notice of Termination, or any date thereafter elected by the Company in its sole discretion. The failure by the Company or the Executive 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"
"(a) General. The parties hereto acknowledge and agree that, to the extent applicable, this Agreement shall be interpreted in accordance with, and incorporate the terms and conditions required by, Section409A. Notwithstanding any provision of this Agreement to the contrary, in the event that the Company determines that any amounts payable hereunder will be immediately taxable to the Executive under Section409A, the Company reserves the right to (without any obligation to do so or to indemnify the Executive for failure to do so) (i)adopt such amendments to this Agreement or adopt such other policies and procedures (including amendments, policies and procedures with retroactive effect) that it determines to be necessary or appropriate to preserve the intended tax treatment of the benefits provided by this Agreement,"
"to preserve the economic benefits of this Agreement and to avoid less favorable accounting or tax consequences for the Company and/or (ii)take such other actions it determines to be necessary or appropriate to exempt the amounts payable hereunder from Section409A or to comply with the requirements of Section409 A and thereby avoid the application of penalty taxes thereunder. Notwithstanding anything herein to the contrary, no provision of this Agreement shall be interpreted or construed to transfer any liability for failure to comply with the requirements of Section409A from the Executive or any other individual to the Company or any of its Affiliates, employees or agents."
"termination of employment as a result of the Employees death) shall be communicated by a written notice (a Notice of Termination) to the other Party hereto (i)indicating whether the termination is for or without Cause (as defined below) or the resignation is for or without Good Reason (as defined below), (ii)indicating the specific termination provision in this Agreement relied upon, and (iii)specifying a date of termination (the Date of Termination), which, if submitted by the Employee, shall be thirty (30)days following the date of such notice (or the first business day following the last day of the Cure Period, in the case of Employees resignation for Good Reason, or such other date as mutually agreed by the Company and the Employee)."
"(b) Intellectual Property Ownership. The Employee hereby assigns to the Company all rights, including, without limitation, copyrights, patents, trade secret rights, and other intellectual property rights associated with any ideas, concepts, techniques, inventions, processes, works of authorship, Confidential Information or trade secrets (i)developed or created by the Employee, solely or jointly with others, during the course of performing work for or on behalf of the Company or any affiliate of the Company, or the predecessors of any such entities, whether as an employee or independent contractor, (ii)that the Employee conceives, develops, discovers or makes in whole or in part during the Employees employment by the Company that relate to the business of the Company or any affiliate of the Company or the actual or demonstrably anticipated research or development of the Company or any affiliate of the Company, (iii)that the Employee conceives, develops, discovers or makes in whole or in part during or after the Employees employment by the Company that are made through the use of any of the equipment, facilities, supplies, trade secrets or time of the Company or any affiliate of the Company, or that result from any work the Employee performs for the Company or any affiliate of the Company, or (iv)developed or created by the Employee, solely or jointly with others, at any time before the Employment Period, that relate to or involve the Companys businesses (including, but not limited to, the business of the Company Group) (collectively, the Work Product). Without limiting the foregoing, to the extent possible, all software, compilations and other original works of authorship included in the Work Product will be considered a work made for hire as that term is defined in Title 17 of the United States Code. If, notwithstanding the foregoing, the Employee for any reason retains any right, title or interest in or relating to any Work Product, the Employee agrees promptly to assign, in writing and without any requirement of further consideration, all such right, title, and interest to the Company. Upon request of the Company at any time during or after the Employment Period, the Employee will take such further actions, including execution and delivery of instruments of"
"(f) Acknowledgment. The Employee acknowledges that before agreeing to participate in this Agreement, the Employee has had the opportunity to consult with any attorney or other advisor of the Employees choice, and that this provision constitutes advice from the Company to do so if the Employee chooses. The Employee further acknowledges that the Employee has agreed to enter into this Agreement of the Employees own free will, and that no promises or representations have been made to the Employee by any person to induce the Employee to enter into this Agreement other than the express terms set forth herein. The Employee further acknowledges that the Employee has read this Agreement and understands all of its terms, including the waiver of rights set forth in this Section9\."
"13\. Entire Agreement. This Agreement constitutes the entire agreement between the Parties hereto pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the Parties with respect to such subject matter, including without limitation any previous employment agreements entered into between Employee and the Company or any of its affiliates."
"7\. Entire Agreement. This Release and the Agreement constitute the entire agreement of the Parties in respect of the subject matter contained herein and therein and supersede all prior or simultaneous representations, discussions, negotiations and agreements, whether written or oral. This Release may be amended or modified only with the written consent of the Employee and an authorized representative of the Company. No oral waiver, amendment or modification will be effective under any circumstances whatsoever."
"1\. Term. The Executive's employment hereunder shall be effective as of Effective Date and shall continue until the second anniversary thereof, unless terminated earlier pursuant to Section 5 of this Agreement. The period during which the Executive is employed by the Company hereunder is hereinafter referred to as the Employment Term. This agreement shall replace and supersede any and all prior agreements between the Executive and the Company, including but not limited to the agreement between the Company and Executive dated November 6, 2015, which agreements shall be deemed terminated as of the date hereof."
"(a) In consideration of the Executive entering into this Agreement on the Effective Date, the Company will grant the following equity awards to the Executive pursuant to the Companys 2016 Equity Incentive Plan provided this Agreement remains in effect: 125,000 restricted shares of Common Stock, of which 31,250 shares shall be issued on or about January 2, 2017 (but not prior to January 1, 2017), 31,250 shares will be issued on or about April 2, 2017, 31,250 shares shall be issued on or about July 2, 2017 and 31,250 shares shall be issued on or about September 2, 2017. All other terms and conditions of such awards shall be governed by the terms and conditions of the 2016 Equity Incentive Plan and the applicable award agreement."
"(i) one person (or more than one person acting as a group) acquires ownership of stock of the Company that, together with the stock held by such person or group, constitutes more than 50% of the total fair market value or total voting power of the stock of such corporation; provided that, a Change in Control shall not occur if any person (or more than one person acting as a group) owns more than 50% of the total fair market value or total voting power of the Company's stock and acquires additional stock;"
5.7 Mitigation. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement and any amounts payable pursuant to this Section 5 shall not be reduced by compensation the Executive earns on account of employment with another employer.
"6\. Cooperation. The parties agree that certain matters in which the Executive will be involved during the Employment Term may necessitate the Executive's cooperation in the future. Accordingly, following the termination of the Executive's employment for any reason, to the extent reasonably requested by the Board, the Executive shall cooperate with the Company in connection with matters arising out of the Executive's service to the Company; provided that, the Company shall make reasonable efforts to minimize disruption of the Executive's other activities. The Company shall reimburse the Executive for reasonable expenses incurred in connection with such cooperation and, to the extent that the Executive is required to spend substantial time on such matters, the Company shall compensate the Executive at an hourly rate based on the Executive's Base Salary on the Termination Date."
"8.2 Non-Competition. Because of the Company legitimate business interest as described herein and the good and valuable consideration offered to the Executive, during the Employment Term and for one year thereafter, to run consecutively, beginning on the last day of the Executive's employment with the Company, for any reason or no reason and whether employment is terminated at the option of the Executive or the Company, the Executive agrees and covenants not to engage in Prohibited Activity within the United States."
"8.3. Non-Solicitation of Employees. The Executive agrees and covenants not to directly or indirectly solicit, hire, recruit, attempt to hire or recruit, or induce the termination of employment of any employee of the Company for period of one year, to run consecutively, beginning on the last day of the Executive's employment with the Company."
"For purposes of this Agreement, Work Product includes, but is not limited to, Company information, including plans, publications, research, strategies, techniques, agreements, documents, contracts, terms of agreements, negotiations, know-how, work in process, databases, manuals, results, developments, reports, graphics, market studies, formulae, notes, communications, algorithms, product plans, product designs, models, inventions, unpublished patent applications, original works of authorship, discoveries, experimental processes, experimental results, specifications, manufacturing information, marketing information, advertising information, and sales information."
"10.3 Further Assurances; Power of Attorney. During and after his employment, the Executive agrees to reasonably cooperate with the Company to (a) apply for, obtain, perfect, and transfer to the Company the Work Product as well as any and all Intellectual Property Rights in the Work Product in any jurisdiction in the world; and (b) maintain, protect and enforce the same, including, without limitation, giving testimony and executing and delivering to the Company any and all applications, oaths, declarations, affidavits, waivers, assignments, and other documents and instruments as shall be requested by the Company. The Executive hereby irrevocably grants the Company power of attorney to execute and deliver any such documents on the Executive's behalf in his name and to do all other lawfully permitted acts to transfer the Work Product to the Company and further the transfer, prosecution, issuance, and maintenance of all Intellectual Property Rights therein, to the full extent permitted by law, if the Executive does not promptly cooperate with the Company's request (without limiting the rights the Company shall have in such circumstances by operation of law). The power of attorney is coupled with an interest and shall not be affected by the Executive's subsequent incapacity."
"10.4 No License. The Executive understands that this Agreement does not, and shall not be construed to, grant the Executive any license or right of any nature with respect to any Work Product or Intellectual Property Rights or any Confidential Information, materials, software, or other tools made available to him by the Company."
"11.2 Exit Obligations. Upon (a) voluntary or involuntary termination of the Executive's employment or (b) the Company's request at any time during the Executive's employment, the Executive shall (i) provide or return to the Company any and all Company property, and all Company documents and materials belonging to the Company and stored in any fashion, including but not limited to those that constitute or contain any Confidential Information or Work Product, that are in the possession or control of the Executive, whether they were provided to the Executive by the Company or any of its business associates or created by the Executive in connection with his employment by the Company; and (ii) delete or destroy all copies of any such documents and materials not returned to the Company that remain in the Executive's possession or control, including those stored on any non-Company devices, networks, storage locations, and media in the Executive's possession or control."
"(e)Competing Business shall mean any individual, corporation, partnership, business or other entity which operates or attempts to operate a business which provides, designs, develops, markets, engages in, produces or sells any products, services, or businesses which are the same or similar to those produced, marketed, invested in or sold by Company or any Affiliate."
"4.BENEFITS. Executive is eligible for the standard Company benefits, which may be modified by Company at any time or from time to time in accordance with the terms of Companys applicable benefit plans and policies. Executive shall also be entitled to reimbursement of business-related expenses in accordance with Companys standard policies concerning reimbursement of such expenses. "
"(c)directly or indirectly interfere with or attempt to disrupt the relationship, contractual or otherwise, between Company or any Affiliate and any of its employees or solicit, induce, or attempt to induce employees of Company or any Affiliate to terminate employment with Company or Affiliate and become self-employed or employed with others in the same or similar business or any product line or service provided by Company or any Affiliate; or"
"7.NONDISCLOSURE AND NONUSE OF CONFIDENTIAL INFORMATION. Executive covenants and agrees during Executives employment or any time after the termination of such employment, not to communicate or divulge to any person, firm, corporation or business entity, either directly or indirectly, and to hold in strict confidence for the benefit of Company, all Confidential Information except that Executive may disclose such Confidential Information to persons, firms or corporations who need to know such Confidential Information during the course and within the scope of Executives employment. Executive will not use any Confidential "
"(a)With Cause Termination. Executive may be terminated from employment with Cause. Cause shall mean (i)the commission of a crime involving moral turpitude, theft, fraud or deceit; (ii)conduct which brings Company or any Affiliate into public disgrace or disrepute and that is demonstrably and materially injurious to the business interest of Company or any Affiliate; (iii)substantial or continued unwillingness to perform duties as reasonably directed by Executives supervisors or Companys Board of Directors; (iv)gross negligence or deliberate misconduct; or (v)any material breach of Paragraphs 6 or 7 of this Agreement, or Executives Confidential Information and Intellectual Property Protection Agreement. In the event that Executive is terminated with Cause, Company may immediately cease payment of any further wages, benefits or other compensation hereunder other than salary and benefits (excluding options) earned through the date of termination. Executive acknowledges that Executive has continuing obligations under this Agreement including, but not limited to Paragraphs 6 and 7, in the event that Executive is terminated with Cause."
"(1)Twelve (12)months of Executives last monthly base salary, as set forth in Schedule A, less appropriate deductions, divided into equal installments and paid on Companys regular payroll dates over a period of twelve (12)months commencing with the first regular payroll date occurring on or after the sixtieth (60th) day following Executives termination date, together with a catch-up payment consisting of the installments that otherwise would have been paid on the regular payroll dates occurring between the termination date and such initial payment date, and the remaining installments paid on succeeding regular payroll dates during such twelve (12)-month period until paid in full (Severance Pay)."
"(4)Following the cessation of coverage under Companys group health (medical, dental, and vision) plans under Paragraph 8(b)(3) above, Executive shall be entitled to continue his coverage and coverage for any eligible qualified beneficiary under Companys group health plans in accordance with and for as long as required under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) (subject to payment of the applicable cost for such coverage as may be required by Company in accordance with COBRA). Any period of post-termination coverage under Paragraph 8(b)(3) above shall not be considered as part of the COBRA continued coverage period."
"(7)The exercise period for a vested Option, including those which vest pursuant to Paragraph 8(b)(6) above, will be extended for a period of six (6)months after the otherwise applicable expiration date, but not later than the earlier of (i)the original expiration date of such Option; or (ii)ten (10) years from the date of grant."
"Executive further acknowledges that Companys obligations under this Paragraph 8(b), are contingent upon and subject to Executives signing (and not revoking) an agreement and release of all claims against Company in a form similar to the one attached hereto as Schedule C (or such other form acceptable to Company), and such release becoming effective in accordance with its terms prior to the sixtieth (60th) day following Executives termination date."
"9.TERM. Executives employment shall continue from year to year or until such employment is terminated in accordance with the provisions of Paragraph 8. Executive acknowledges and agrees that nothing herein guarantees Executive continued employment by Company for any specified or intended term, and that his employment and this Agreement may be terminated by Company at any time. "
"or at such other address as may be given by either of them to the other in writing from time to time, and such notices, requests, demands, acceptances or other communications shall be deemed to have been received when delivered or, if mailed, three (3)Business Days after the day of mailing thereof; provided that if any such notice, request, demand or other communication shall have been mailed and if regular mail service shall be interrupted by strikes or other irregularities, such notices, requests, demands or other communications shall be deemed to have been received when delivered or, if mailed, three (3)Business Days from the day of the resumption of normal mail service."
"This EXECUTIVE EMPLOYMENT AGREEMENT (Agreement) is made as of September15,2016 (the Agreement Date), with an effective date of January1, 2016 (the Effective Date), by Playa Management USA, LLC, a Delaware limited liability company with an address at 3950 University Drive, Suite 301, Fairfax, Virginia 22030 (Playa Management), and Alexander Stadlin (Executive)."
"1. | Term ---|--- Playa Management shall employ Executive, and Executive shall be employed by Playa Management, upon the terms and conditions set forth in this Agreement. Unless terminated earlier pursuant to Section5 below, Executives employment pursuant to this Agreement shall be for a period of three (3)years commencing on the Effective Date and ending on December31, 2018 (the term being the Employment Period)."
"4. | Compensation and Benefits ---|--- (a) Salary. As of the date of this Agreement, Playa Management shall pay Executive a gross annual base salary (Base Salary) of Five Hundred and Fifteen Thousand Dollars ($515,000.00) For the avoidance of doubt, Executive shall not be entitled to receive any other salary to the extent he serves as an officer, director or employee of any other Playa Affiliate. The Base Salary shall be payable in arrears in approximately equal semi-monthly installments (except that the first and last such semi-monthly installments may be prorated if necessary) on Playa Managements regularly scheduled payroll dates, minus such deductions as may be required by law or reasonably requested by Executive. The Playa Board shall review Executives 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."
"6. | Effect of Termination ---|--- (a) General. Regardless of the reason for any termination of this Agreement (other than terminations due to Executives death or Disability, which are covered by Sections 6(e)(i) and (ii)below, respectively), Executive shall be entitled to receive each of the following: (i)payment of any unpaid portion of his Base Salary through the effective date of termination; (ii)reimbursement for any outstanding reasonable business expense he has incurred in performing his duties hereunder in accordance with Section4(d) above; (iii)continued insurance benefits to the extent required by law; and (iv)payment of any fully vested but unpaid rights as required by the terms of any bonus or other incentive pay plan, or any other employee benefit plan or program of Playa Management or a Playa Affiliate."
(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.
"(A) A Person means any individual, entity or group within the meaning of Section13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended, other than employee benefit plans sponsored or maintained by Playa and by entities controlled by Playa or an underwriter of the equity interests of Playa in a registered public offering."
"(b) Exclusions. Notwithstanding the foregoing, Proprietary Information shall not include (i)information disseminated by Playa Management or Playa Affiliates on a non-confidential basis to third parties in the ordinary course of business; (ii)information in the public domain not as a result of a breach of any duty by Executive or any other person; or (iii)information that Playa Management or Playa Affiliates, as the case may be, does not consider confidential."
"(d) Acknowledgement. Executive acknowledges that he will acquire much Proprietary Information concerning the past, present and future business of Playa Management and the Playa Affiliates as the result of his employment with Playa Management, as well as access to the relationships between Playa Management, and the Playa Affiliates and their respective clients and employees. Executive further acknowledges that the business of Playa Management and the Playa Affiliates is very competitive and that competition by him in that business during the Employment Period and the Restricted Period would severely injure Playa Management and the Playa Affiliates, as the case may. Executive understands that the restrictions contained in this Section8 are reasonable and are required for Playa Managements and the Playa Affiliates legitimate protection, and do not unduly limit his ability to earn a livelihood."
"Notwithstanding anything to the contrary in this Agreement, to the maximum extent permitted by applicable law, amounts payable to Executive pursuant to the severance pay provisions of Section6 above and the parachute payment provisions of Section11(a) above are intended to be exempt from treatment as nonqualified deferred compensation under Code Section409A to the maximum extent permitted by the Code and applicable Treasury Regulations, including exemptions under Treasury Regulation Section1.409A-1(b)(9) (separation pay plans) or Treasury Regulation Section1.409A-1(b)(4) (short-term deferrals). If Executive is treated as a specified employee (as determined by the Playa Management in its discretion in accordance with applicable regulations under Code Section409A) at the time of his separation from service (within the meaning of Code Section409A) from Playa Management and each employer treated as a single employer with Playa Management under Code Section414(b) or (c)(provided that in applying such Sections and in accordance with the rules of Treasury Regulations Section1.409A-1(h)(3), the language at least 50 percent shall be used instead of at least 80 percent) and if any amounts of nonqualified deferred compensation (within the meaning of Code Section409A) are payable under this Agreement by reason of Executives separation from service, then payment of the amounts so treated as nonqualified deferred compensation which would otherwise be payable during the six (6)-month period following Executives separation from service shall be delayed until the earlier of (i)the first business day which is at least six (6)months and one (1)day following the date of such separation from service, (ii)the death of Executive, or (iii)such earlier date on which payment is permitted under Code Section409A(a)(2)(B), and such payment shall be increased for delayed payment based on a crediting rate of the applicable federal short-term rate under Code Section1274(d) (as determined on the date(s) payment(s) would have otherwise been made) from the date payment(s) would have otherwise been made without regard to this provision and the date payment is actually made. Any series of payments due under this Agreement, other than a payment which is a life annuity, shall for all purposes of Code Section409A be treated as a series of separate payments and not as a single payment. If any amount otherwise payable under this Agreement by reason of a termination of employment from Playa Management is treated as nonqualified deferred compensation (within the meaning of Code Section409A), then instead of making such payment upon occurrence of the termination of employment, such payment shall be made at such time as Executive has a separation from service (within the meaning of Code Section409A) from Playa Management and each employer treated as a single employer with Playa Management, as determined above."
"meaning of Code Section409A), then instead of making such payment upon occurrence of the termination of employment, such payment shall be made at such time as Executive has a separation from service (within the meaning of Code Section409A) from the Company and each employer treated as a single employer with the Company, as determined above."
"5\. Cooperation. Following Executives termination or resignation, Executive shall assist and cooperate with the Company in the orderly transition of work to others if so requested by the Company. Executive shall cooperate with the Company and be responsive to requests for information relating to business matters about which Executive may have information or knowledge and reasonably assist the Company, as the case may be, with any litigation, threatened litigation or arbitration proceeding relating to the Companys business as to which business Executive had relevant knowledge, and the Company shall reimburse Executive for reasonable costs, including attorneys fees and expenses, actually incurred by Executive in connection with such assistance."
"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."
"Section 2.4. Time Commitment. During the Term, the Employee shall use her best efforts to promote the interests of the Company (including its subsidiaries and other Affiliates) and shall devote all of her business time, ability and attention to the performance of her duties for the Company. and shall not, directly or indirectly, render any services to any other person or organization, whether for compensation or otherwise, except (with the Boards prior written consent, provided that the foregoing shall not prevent the Employee from (i) participating in charitable, civic, educational, professional, community or industry affairs, or (ii) managing the Employees passive personal investments, so long as, in each case, such activities individually or in the aggregate do not materially interfere or conflict with the Employees duties hereunder or create a potential business or fiduciary conflict (in each case, as determined by the Board)."
"Section 2.5. Location. The Employees principal place of business for the performance of her duties under this Agreement shall be at the principal executive office of the Company located at 4365 US Route 1 South, Suite 211, Princeton, New Jersey 08540, as of the Start Date. The Employee shall travel as determined necessary to perform her duties hereunder by the CEO."
"(e) Paid Vacation. The Employee shall be entitled to paid vacation days in accordance with the Companys vacation policies in effect from time to time for its executive team; provided, however, that the Employee shall be entitled to no less than fifteen (15) paid vacation days per calendar year during the Term."
"(B) if the Employee then participates in the Companys medical and/or dental plans and the Employee timely elects to continue and maintain group health plan coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (COBRA), then the Company shall reimburse the Employee for the healthcare continuation payments under COBRA actually made by the Employee for the coverage period beginning on the day following the Termination Date and ending on the earlier of: (A) the six (6) month anniversary of the Termination Date; and (B) the date the Employee becomes eligible to obtain alternate healthcare coverage from a new employer (the COBRA Assistance). The Employee agrees to immediately inform the Company if she becomes eligible to obtain alternate healthcare coverage from a new employer. The Employee also agrees to remit to the Company on a monthly basis and within thirty (30) days of the date of payment, paid invoices for each such monthly COBRA premium for which she seeks reimbursement pursuant to this Section 4.1(d)(iii)(B) and such reimbursement (to the extent required pursuant to this Section 4.1(d)(iii)(B)) shall be made to the Employee within thirty (30) days following the Employees delivery to the Company of each such invoice. Notwithstanding anything set forth in this Section 4.1(d)(iii)(B), if and to the extent that the Company may not provide such COBRA Assistance without incurring tax penalties or violating any requirement of the law, the Company shall use its commercially reasonable best efforts to provide substantially similar assistance in an alternative manner provided that the cost of doing so does not exceed the cost that the Company would have incurred had the COBRA Assistance been provided in the manner described above or cause a violation of Section 409A (as defined in Section 5.16)."
"Section 5.3. Entire Agreement. This Agreement and the Covenants Agreement contain the entire agreement of the parties hereto with respect to the terms and conditions of the Employees employment during the Term and activities following termination of this Agreement and the Employees employment with the Company and supersede any and all prior agreements and understandings, whether written or oral, between the parties hereto with respect to the subject matter of this Agreement or the Covenants Agreement. Each party hereto acknowledges that no representations, inducements, promises or agreements, whether oral or in writing, have been made by any party, or on behalf of any party, which are not embodied herein or in the Covenants Agreement. The Employee acknowledges and agrees that the Company has fully satisfied, and has no further, obligations to the Employee arising under, or relating to, any other employment or consulting arrangement or understanding (including, without limitation, any claims for compensation or benefits of any kind) or otherwise. No agreement, promise or statement not contained in this Agreement or the Covenants Agreement shall be valid and binding, unless agreed to in writing and signed by the parties sought to be bound thereby."
"Section 5.14. Source of Payment. Except as otherwise provided under the terms of any applicable employee benefit plan, all payments provided for under this Agreement shall be paid in cash from the general funds of Company. The Company shall not be required to establish a special or separate fund or other segregation of assets to assure such payments, and, if the Company shall make any investments to aid it in meeting its obligations hereunder, the Employee shall have no right, title or interest whatever in or to any such investments except as may otherwise be expressly provided in a separate written instrument relating to such investments. 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 from the Company hereunder, such right, without prejudice to rights which employees may have, shall be no greater than the right of an unsecured creditor of the Company. The Employee shall not look to the owners of the Company for the satisfaction of any obligations of the Company under this Agreement."
"(b) An initial determination as to whether (x) any of the Parachute Payments received by the Employee in connection with the occurrence of a change in the ownership or control of the Company or in the ownership of a substantial portion of the assets of the Company shall be subject to the Excise Tax, and (y) the amount of any reduction, if any, that may be required pursuant to the previous paragraph, shall be made by an independent accounting firm selected by the Company (the Accounting Firm) prior to the consummation of such change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company. The Employee shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to the Employees Parachute Payments, together with the related calculations of the Accounting Firm, promptly after such determinations and calculations have been received by the Company."
"2\. Performance of Duties. The Employee agrees that during the Employment Period, while he is employed by the Company, he shall devote 100% of his full working time, energies and talents performing the duties assigned to him by the Board faithfully, efficiently and in a professional manner. It is understood by the employee that he may not enter the company into any and all material contractual obligations without pre-approval by the Board of Directors. During the Employment Period, the Employee may not engage, undertake or be interested in (whether directly or indirectly) any other employment, business or occupation or become a director or employee or agent or consultant or partner of any other person, officer or company which either individually or in the aggregate would violate the immediately preceding sentence without the prior written consent of the Board."
"(c) He shall be reimbursed by the Company for all reasonable business, promotional, travel and entertainment expenses which are pre-approved by the Chairman of the Board and or full Board of Directors and subsequently incurred or paid by him during the employment period in the performance of his services under this Agreement that are consistent with the Companys policies in effect from time to time, provided that the Employee furnishes to the Company appropriate documentation in a timely fashion required by the Internal Revenue Code in connection with such expenses and shall furnish such other documentation and accounting as the Company may from time to time reasonably request."
"(e) Return of Company Property. In the event that Employees employment is terminated for any reason, the Employee (or his estate or legal representative, as the case may be) shall be obligated to immediately return all properly of the Company or any of its affiliates in his (or their) possession as of the date of termination, including, but not limited to, (i) cell phones, personal computers or other electronic devices provided by the Company, including all files resident on such devices; (ii) all memoranda, notes, records, files or other documentation, whether made or compiled by the Employee alone or in conjunction with others (regardless of whether such persons are employed by the Company); (iii) all proprietary or other information of the Company and its affiliates (originals and all copies) which is in the Employees control or possession (or that of his estate or legal representative, as the case may be); and (iv) any and all other property of the Company and its affiliates which is in the Employees control or possession (or that of his estate or legal representative, as the case may be), whether directly or indirectly."
"(a) Confidential Information. During the Employment Period and at all times thereafter, the Employee shall keep secret and retain in strictest confidence, and shall not use for his benefit or the benefit of others, except in connection with the business and affairs of the Company and its affiliates, all confidential matters relating to the Companys business or to the Company and its affiliates learned by the Employee heretofore or hereafter directly or indirectly from the Company and its affiliates, including, without limitation, information with respect to (a) operations, (b) sales figures, (c) profit or loss figures and financial data, (d) costs, (e) customers, clients, and customer lists (including, without limitation, credit history, repayment history, financial information and financial statements), and (f) plans (collectively, the Confidential Information) and shall not disclose such Confidential Information to anyone outside of the Company and its affiliates except with the Companys express written consent and except for Confidential Information which (1) is at the time of receipt or thereafter becomes publicly known through no wrongful act of the Employee or (2) is received from a third party not under an obligation to keep such information confidential and without breach of this Agreement. The Employee further agrees that he shall not make any statement or disclosure that (a) would be prohibited by applicable Federal or state laws or (b) is intended or reasonably likely to be detrimental to the Company or any of its subsidiaries or affiliates."
"(e) Acknowledgment. Employee acknowledges and agrees that the restrictions set forth in this Section 6 are critical and necessary to protect the Companys legitimate business interests (including the protection of its Confidential Information); are reasonably drawn to this end with respect to duration, scope, and otherwise; are not unduly burdensome; are not injurious to the public interest; and are supported by adequate consideration. Employee also acknowledges and agrees that, in the event that Employee breaches any of the provisions in this Section 6, the Company shall suffer immediate, irreparable injury and will, therefore, be entitled to injunctive relief, in addition to any other damages to which it may be entitled, as well as the costs and reasonable attorneys fees it incurs in enforcing its rights under this Section 6. Employee further acknowledges that any breach or claimed breach of the provisions set forth in this Agreement will not be a defense to enforcement of the restrictions set forth in this Section 6."
"(b) The Company shall advance to Employee all reasonable costs and expenses incurred in connection with an Identifiable Proceeding within twenty (20) days after receipt by the Company of a written request for such advance. Such request shall include an itemized list of the costs and expenses expected to be incurred in connection with the Identifiable Proceeding. Employee shall promptly repay the amount of such advance if ultimately it shall be determined that Employee is not permitted to be indemnified against such costs and expenses under applicable law. If Employee has commenced or commences legal proceedings in a court of competent jurisdiction to secure a determination that Employee should be indemnified under applicable law, as provided in this Section 8. then Employee shall not be required to reimburse the Company for any expense or cost advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Employees obligation to reimburse the Company, for expense advances shall be unsecured and no interest shall be charged thereon."
"(ii) Delivery of and payment for the Shares shall be made at 10:00 a.m., Eastern daylight saving time, on the closing date of the IPO (the Closing Date). Delivery of the Shares shall be made to the Purchaser against payment by or on behalf of the Purchaser of the Purchase Price therefor by transmission of a wire transfer to a bank account designated by the Company. Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligation of the Purchaser under this Agreement."
"(i) The Company will file the Draft S-1 Amendment with the SEC under the Securities Act, in the form to be provided to the Purchaser, without change other than such typographical and other revisions that are, in the aggregate, immaterial. Except for the omission of pricing information related to the IPO, the Draft S-1 Amendment and the Draft Preliminary Prospectus will conform in all material respects upon filing with the SEC, with the requirements of the Securities Act. The Company will file the UA with the SEC by 2 p.m., Pacific time, as an exhibit to a current report on Form 8-K. The Registration Statement as of the Effective Date and the final prospectus relating to the ClassA Shares, as filed with the SEC pursuant to Rule 424(b), as of the Closing Date will conform in all material respects with the requirements of the Securities Act."
"(iii) Neither the Company nor any of its Affiliates, directly or indirectly, has taken or will take any action in connection with the IPO or the offering of the Shares that is designed to, or that has constituted or could reasonably be expected to, cause or result in the stabilization or manipulation of the price of the ClassA Shares."
"(iii) Neither the Company nor any of the Subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against the Purchaser for a brokerage commission, finders fee or like payment in connection with the offering and sale of the Shares. No stamp or other issuance or transfer taxes or duties and no withholding taxes are or will be payable by or on behalf of the Purchaser in connection with the execution, delivery or performance of this Agreement."
"(iii) Except as described in the Draft Preliminary Prospectus, since December31, 2016, (A)the Company has not been advised of or otherwise become aware of (1)any significant deficiencies in the design or operation of internal controls that could adversely affect the ability of the Company or any of the Subsidiaries to record, process, summarize and report financial data, or any material weaknesses in internal controls or (2)any fraud, whether or not material, that involves management or other employees who have a significant role in the internal controls of the Company or any of the Subsidiaries and (B)there have been no significant changes in internal controls or in other factors that could significantly adversely affect internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses."
"(o) Insurance. Except as would not reasonably be expected to have a Material Adverse Effect, the Company and each of the Subsidiaries carry, or are covered by, insurance from insurers of recognized financial responsibility in such amounts and covering such risks as is adequate for the conduct of their respective businesses and the value of their respective properties and as is customary for companies engaged in similar businesses in similar industries. All policies of insurance of the Company and the Subsidiaries are in full force and effect. The Company and the Subsidiaries are in compliance with the terms of such policies in all material respects. Neither the Company nor any of"
"(i) No labor disturbance by or dispute with the employees of the Company or any of the Subsidiaries exists or, to the knowledge of the Company, is imminent that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of the Subsidiaries is in violation of or has received notice of any violation with respect to any U.S. federal or state or foreign law relating to discrimination in the hiring, promotion or pay of employees, nor any applicable U.S. federal or state or foreign wage and hour laws, the violation of any of which could reasonably be expected to have a Material Adverse Effect."
"(ii) The board of directors of the Company has adopted and approved a form of Confidentiality, Non-Competition and Intellectual Property Rights Agreement for execution by employees of the Company and its subsidiaries in the Peoples Republic of China, a true and correct copy of which form has been provided to the Purchaser. Such board has directed management of the Company to seek to enter into, by March31, 2018, agreements substantially in such form with all the Companys employees working in the Peoples Republic of China, except any such employee with whom the Company has previously entered into a similar agreement that continues to be in effect. The Company and the Chief Executive Officer and President of the Company will enter into an agreement in such form by no later than October12, 2017."
"(r) Taxes. The Company and each of the Subsidiaries have filed all U.S. federal, state, local and foreign tax returns required to be filed through the date of this Agreement, subject to permitted extensions, and have paid all taxes due, and no tax deficiency has been determined adversely to the Company or any of the Subsidiaries, nor does the Company have any knowledge of any tax deficiencies that have been, or would reasonably be expected to be asserted against the Company, that would, in the aggregate, reasonably be expected to have a Material Adverse Effect."
"(a) Authority. The Purchaser has all requisite power and authority to execute, deliver and perform its obligations under the Lock-Up Agreement, this Agreement, the RRA and the Escrow Agreement. Each of the Lock-Up Agreement, this Agreement, the RRA and the Escrow Agreement has been duly and validly authorized, executed and delivered by the Purchaser and, when executed and delivered by the Company, will constitute a valid and legally binding obligation of the Purchaser, enforceable in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and any other laws of general application affecting enforcement of creditors rights generally and as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies."
"(d) Restricted Securities. The Purchaser understands that the offering and sale of the Shares have not been, and will not be, registered under the Securities Act by reason of a specific exemption from the registration provisions of such Act that depends upon, among other things, the bona fide nature of the investment intent and the accuracy of the Purchasers representations as expressed in this Section4\. The Purchaser understands that the Shares are restricted securities under applicable U.S. federal and state securities laws and that, pursuant to those laws, the Purchaser must hold the Shares indefinitely unless either they are registered with the SEC and qualified by state authorities or an exemption from such registration and qualification requirements is available. The Purchaser acknowledges that the Company has no obligation to register or qualify for resale the Shares, except as set forth in the RRA. The Purchaser further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements, including the time and manner of sale and the holding period for the Shares, and on requirements relating to the Company that are outside of the Purchasers control and that the Company is under no obligation, and may not be able, to satisfy."
"(c) Corporate Proceedings. All corporate proceedings and other legal matters incidental to the authorization, form and validity of this Agreement and all other legal matters relating to this Agreement and the transactions contemplated by this Agreement, including the filing of the Restated Certificate of Incorporation of ACM Research, Inc. (in the form filed with the SEC by the Company as Exhibit 3.03 to the Registration Statement) shall be reasonably satisfactory in all material respects to the Purchaser, and the Company shall have furnished to the Purchaser all documents and information that they may reasonably request to enable them to pass upon such matters."
"(e) IPO. The IPO shall have been consummated, and K&L Gates LLP, counsel for the Company, shall have sent notice to the Purchasers and Sino IC confirming the completion of the closing of the IPO. The Nasdaq Global Market shall have approved the Shares for listing, subject only to official notice of issuance and evidence of satisfactory distribution."
" | (iii) | any other act or thing that may be done by or on behalf of any Indemnified Party in connection with this Agreement and that might, apart from this clause, prejudice or adversely affect such rights or remedies. ---|---|--- The Company further agrees to indemnify each of the Indemnified Parties against any Losses incurred by such Indemnified Party related to or arising from efforts to enforce or protect its rights under this Agreement or from the exercise of its rights or powers consequent upon or arising out of any breach of this Agreement by the Company. The remedies set forth in this Section7 shall be without prejudice to all other rights and remedies that an Indemnified Party may have under applicable law and shall not be the sole and exclusive remedy of any Indemnified Party for any Loss suffered under this Agreement. Each Indemnified Party shall be entitled to pursue any remedy that is available to it under applicable law."
"(b) WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SHARES OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL."
"(d) Entire Agreement. This Agreement, together with the Lock-Up Agreement, the RRA and the Escrow Agreement, constitutes the full and entire understanding and agreement between the parties with respect to the subject matter of this Agreement, and any other written or oral agreement relating to the subject matter of this Agreement existing between the parties is expressly canceled."
"(h) Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties to this Agreement 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."
"1.4 Intellectual Property means all patents, patent applications, trademarks, trademark applications, service marks, service mark applications, tradenames, copyrights, trade secrets, domain names, mask works, information and proprietary rights and processes, similar or other intellectual property rights, subject matter of any of the foregoing, tangible embodiments of any of the foregoing, licenses in to and under any of the foregoing, and any and all such cases that are owned or used by ACM in the conduct of its business as now conducted."
"2\. Follow-On Closing. Upon the terms and subject to the conditions of this Agreement, at a closing (the Follow-On Closing) to be held on a date mutually agreed upon by the parties, but in no event later than seven days following the date of the Closing held pursuant ot the Corollary Agreement:"
"3.2 Authorization. All corporate action required to be taken to authorize ACM to enter into and perform this Agreement, including the issuance of the Shares, has been taken. This Agreement constitutes a valid and legally binding obligation of ACM, enforceable against ACM in accordance with its terms except as limited by (a)applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other laws of general application relating to or affecting the enforcement of creditors rights generally or (b)laws relating to the availability of specific performance, injunctive relief or other equitable remedies."
"(b) As of September6, 2017, options to purchase a total of 10,228,062 shares of ClassA Common Stock had been granted by ACM and were outstanding, and an additional 2,116,278 shares of ClassA Common Stock had been reserved, and were available for issuance, under ACMs 2016 Omnibus Incentive Plan, a true and complete copy of which has been provided to Ninebell."
"(c) As of September6, 2017, there were no outstanding options, warrants or rights (including conversion or preemptive rights and rights of first refusal or similar rights) to purchase or acquire from ACM any shares of ClassA Common Stock, ClassB Common Stock or Preferred Stock, or any securities convertible into or exchangeable for shares of ClassA Common Stock, ClassB Common Stock or Preferred Stock, except for (i)the conversion privileges of Class B Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series F Preferred Stock, (ii)the options described in Section3.3(b), and (iii)a Warrant to Purchase ClassA Common Stock dated March14, 2017 exercisable to acquire a total of 1,192,504 shares of ClassA Common Stock at a purchase price of US$2.50 per share (subject to adjustment as provided therein)."
"consummation of the transactions contemplated by this Agreement will not result in any such violation or be in conflict with or constitute, with or without the passage of time and giving of notice, either (i)a default under any such provision, instrument, judgment, order, writ, decree, contract or agreement or (ii)an event that results in the creation of any lien, charge or encumbrance upon any assets of ACM or the suspension, revocation, forfeiture, or nonrenewal of any material permit or license applicable to ACM."
"4.3 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."
"(b) Ninebell understands that the Shares have not been, and will not be, registered under the Securities Act, by reason of a specific exemption from the registration provisions of such Act that depends upon, among other things, the bona fide nature of the investment intent and the accuracy of Ninebells representations as expressed in this Section4.6. Ninebell understands that the Shares are restricted securities under applicable U.S. federal and state securities laws and that, pursuant to those laws, Ninebell must hold the Shares indefinitely unless they are registered with the U.S. Securities and Exchange Commission and qualified by state authorities, or an exemption from such registration and qualification requirements is available, including a transfer outside of the United States in an offshore transaction in compliance with Rule 904 under the Securities Act (if applicable). Ninebell acknowledges that ACM has no obligation to register or qualify for resale the Shares. Ninebell further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including the time and manner of sale, the holding period for the Shares, and on requirements relating to ACM that are outside of Ninebells control and that ACM is under no obligation, and may not be able, to satisfy."
"(ii) Each Forward Purchase Warrant will have the same terms as each Warrant sold as part of the Public Units in the IPO (Public Warrants) and will be subject to the terms and conditions of the Warrant Agreement to be entered into between the Company and Continental Stock Transfer & Trust Company, as Warrant Agent, in connection with the IPO (the Warrant Agreement). Each Forward Purchase Warrant will entitle the holder thereof to purchase one Class A Share at a price of $11.50 per share, subject to adjustment as described in the Warrant Agreement, and only whole Forward Purchase Warrants will be exercisable. The Forward Purchase Warrants will become exercisable on the later of thirty (30) days after the Business Combination Closing and twelve (12) months from the closing of the IPO, and will expire at 5:00 p.m., New York City time, five (5) years after the Business Combination Closing or earlier upon redemption or the liquidation of the Company, as described in the Warrant Agreement."
"(iv) The closing of the sale of the Forward Purchase Securities (the FPS Closing) shall be held on the same date and immediately prior to the Business Combination Closing (such date being referred to as the Closing Date). At the FPS Closing, the Company will issue to the Purchaser the Forward Purchase Securities, each registered in the name of the Purchaser, against (and concurrently with) release of the FPS Purchase Price by the Escrow Agent to the Company."
"(d) Legend Removal. Following the expiration of the transfer restrictions set forth in Section 6(a), if the Securities are eligible to be sold without restriction under, and without the Company being in compliance with the current public information requirements of, Rule 144 under the Securities Act of 1933, as amended (the Securities Act), then at the Purchasers request, the Company will cause the Companys transfer agent to remove the legend set forth in Section 1(c)(ii). In connection therewith, if required by the Companys transfer agent, the Company will promptly cause an opinion of counsel to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent that authorize and direct the transfer agent to issue such Securities without any such legend; provided, that, notwithstanding the foregoing, the Company will not be required to deliver any such opinion, authorization, certificate or direction if it reasonably believes that removal of the legend could result in or facilitate transfers of Securities in violation of applicable law."
"(a) Organization and Power. If an entity, the Purchaser is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its formation (if the concept of good standing is a recognized concept in such jurisdiction) and has all requisite power and authority to carry on its business as presently conducted and as proposed to be conducted."
"(g) Restricted Securities. The Purchaser understands that the Securities have not been, and will not be, registered under the Securities Act, by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of the Purchasers representations as expressed herein. The Purchaser understands that the Securities are restricted securities under applicable U.S. federal and state securities laws and that, pursuant to these laws, the Purchaser must hold the Securities indefinitely unless they are registered with the SEC and qualified by state authorities, or an exemption from such registration and qualification requirements is available. The Purchaser acknowledges that the Company has no obligation to register or qualify the Securities, or any Class A Shares into which they may be converted into or exercised for, for resale, except for the Registration Rights. The Purchaser further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Securities, and on requirements relating to the Company which are outside of the Purchasers control, and which the Company is under no obligation and may not be able to satisfy. The Purchaser acknowledges that the Company confidentially submitted the Registration Statement for its proposed IPO. The Purchaser understands that the offering of"
"(i) High Degree of Risk. The Purchaser understands that its agreement to purchase the Securities involves a high degree of risk which could cause the Purchaser to lose all or part of its investment, and that it will be contractually obligated to vote its Class B Shares in favor of the Companys initial Business Combination."
"(q) No Other Representations and Warranties; Non-Reliance. Except for the specific representations and warranties contained in this Section 2 and in any certificate or agreement delivered pursuant hereto, none of the Purchaser nor any person acting on behalf of the Purchaser nor any of the Purchasers affiliates (the Purchaser Parties) has made, makes or shall be deemed to make any other express or implied representation or warranty with respect to the Purchaser and this offering, and the Purchaser Parties disclaim any such representation or warranty. Except for the specific representations and warranties expressly made by the Company in Section 3 of this Agreement and in any certificate or agreement delivered pursuant hereto, the Purchaser Parties specifically disclaim that they are relying upon"
"(ii) 25,000,000 Class B Shares, 8,625,000 of which are issued and outstanding and held by the Sponsor. All of the outstanding Class B Shares have been duly authorized, are fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws. Immediately following the sale of the Class B Shares to the Forward Contract Parties, there will be a total of 12,375,000 Class B Shares issued and outstanding, 8,625,000 of which will be held by the Sponsor and an aggregate of 3,750,000 of which will be held by the Forward Contract Parties."
"(i) The Securities, when issued, sold and delivered in accordance with the terms and for the consideration set forth in this Agreement and registered in the register of members of the Company, and the securities issuable upon conversion or exercise of the Securities, when issued in accordance with the terms of the Securities and this Agreement, and registered in the register of members of the Company, will be validly issued, fully paid and nonassessable and free of all preemptive or similar rights, taxes, liens, encumbrances and charges with respect to the issue thereof and restrictions on transfer other than restrictions on transfer specified under this Agreement, applicable state and federal securities laws and liens or encumbrances created by or imposed by the Purchaser. Assuming the accuracy of the"
"(e) Governmental Consents and Filings. Assuming the accuracy of the representations and warranties made by the Purchaser in this Agreement, no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the part of the Company in connection with the consummation of the transactions contemplated by this Agreement, except for filings pursuant to Regulation D of the Securities Act, and applicable state securities laws."
"(f) Compliance with Other Instruments. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement will not result in any violation or default (i) of any provisions of its articles of association, Charter or other governing documents, (ii) of any instrument, judgment, order, writ or decree to which it is a party or by which it is bound, (iii) under any note, indenture or mortgage to which it is a party or by which it is bound, (iv) under any lease, agreement, contract or purchase order to which it is a party or by which it is bound or (v) of any provision of federal or state statute, rule or regulation applicable to the Company, in each case (other than clause (i)) which would have a material adverse effect on the Company or its ability to consummate the transactions contemplated by this Agreement."
"(n) No Other Representations and Warranties; Non-Reliance. Except for the specific representations and warranties contained in this Section 3 and in any certificate or agreement delivered pursuant hereto, none of the Company Parties has made, makes or shall be deemed to make any other express or implied representation or warranty with respect to the Company, this offering, the proposed IPO or a potential Business Combination, and the Company Parties disclaim any such representation or warranty. Except for the specific representations and warranties expressly made by the Purchaser in Section 2 of this Agreement and in any certificate or agreement delivered pursuant hereto, the Company Parties specifically disclaim that they are relying upon any other representations or warranties that may have been made by the Purchaser Parties."
"Agreement. The Company will provide the Forward Contract Parties with applicable materials and information in order for the Forward Contract Parties to evaluate whether to provide a consent to the proposed Business Combination pursuant to paragraph (b) below including the material terms of the transaction and any other information reasonably requested by the Purchaser with respect to the proposed Business Combination, such materials and information to be provided subject to the terms of a non-disclosure agreement to be entered between the Company and the Forward Contract Parties in accordance with applicable law (including Regulation FD under the Securities Exchange Act of 1934, as amended (the Exchange Act)) and the Companys contractual obligations; provided, that the Company shall have the right to refuse to provide any such materials or information if, in the opinion of the Company, acting reasonably and in good faith having received the advice of counsel, the provision of such materials or information could violate applicable laws or regulations or result in any waiver of legal privilege of the Company; and provided, further, that if the target entitys equity or debt securities are traded on a securities exchange or over-the-counter market, prior to providing such materials and information, the Company will first provide only the name of the potential target to a legal or compliance person designated by each Forward Contract Party in writing as authorized to receive such information (such person, the Designated Person) so that such Forward Contract Party can determine if it has an internal restriction on the receipt of such materials or information; and provided, further, that if any such materials and information cannot be publicly disclosed by the Company following the approval of the Business Combination pursuant to paragraph (c) below and the Companys entry into a definitive agreement with respect thereto, the Company shall receive the prior written consent of the Designated Person prior to providing such materials and information to such Forward Contract Party (such materials and information, the Optional Information). If the Business Combination is approved pursuant to paragraph (c) below and the Company enters into a definitive agreement with respect thereto, the Company will disclose all material nonpublic information concerning the Business Combination in the proxy statement or otherwise other than the Optional Information. In addition, at the election of any Forward Contract Party, the Company and the Sponsor will use commercially reasonable efforts to allow such Forward Contract Party to attend or participate in due diligence sessions with and/or meetings with management of the target entity in a potential Business Combination, subject, in each case, to such Forward Contract Party entering into a non-disclosure agreement with the applicable target entity in a potential Business Combination and complying with other applicable rules and procedures established by such target entity."
"(a) Lock-up; Transfer Restrictions. The Purchaser agrees that it shall not Transfer (as defined below) any Class B Shares and the Class A Shares into which the Class B Shares are convertible, until the earlier of (A) one year after the Business Combination Closing and (B) the date following the Business Combination Closing on which the Company completes a liquidation, merger, share exchange or other similar transaction that results in all of the Companys ordinary shareholders having the right to exchange their ordinary shares of the Company for cash, securities or other property (the Lock-up Period). Notwithstanding the foregoing, if, subsequent to a Business Combination, the closing price of the Class A Shares equals or exceeds $12.00 per share (as adjusted for share splits, share dividends, reorganizations, recapitalizations and the like) for any twenty (20) trading days within any thirty (30) trading day period commencing at least one hundred and fifty (150) days after the Business Combination Closing, the Class B Shares (and the Class A Shares into which the Class B Shares are convertible) shall be released from the lockup referenced herein. Notwithstanding the first sentence hereinabove, Transfers of the Class B Shares (and the Class A Shares into which the Class B Shares are convertible) are permitted (i) to the Companys officers or directors, any affiliates or family members of any of the Companys officers or directors, any members of the Sponsor or their affiliates, or any affiliates of the Sponsor; (ii) in the case of an individual, by a bona fide gift or transfer to a member(s) of the individuals immediate family or to a trust, the beneficiary of which is a member of one of the individuals immediate family, an affiliate of such person, or in the case of any Person, by gift or transfer to a charitable organization; (iii) in the case of an individual, by virtue of laws of descent and distribution upon death of the individual; (iv) in the case of an individual, pursuant to a qualified domestic relations order; (v) by private sales or transfers made in connection with the consummation of a Business Combination at prices no greater than the price at which the Class B Shares were originally purchased; (vi) in the event of the Companys liquidation, bankruptcy or dissolution prior to the completion of a Business Combination; (vii) in the event of completion of a liquidation, merger, share exchange or other similar transaction which results in all of the Companys shareholders having the right to exchange their ordinary shares of the Company for cash, securities or other property subsequent to the completion of a Business Combination; (viii) as a bona fide gift or gifts; (ix) as a distribution to limited partners, members or stockholders of the Purchaser; (x) to the Purchasers affiliates, to any investment fund or other entity controlled or managed by the Purchaser, or to any investment manager or investment advisor of the Purchaser or an affiliate of any such investment manager or investment advisor, (xi) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (x) above, and (xii) pursuant to an order of a court or regulatory agency; provided, however, that in the case of clauses (i) through (vi) and clauses (viii) through (xi), these permitted transferees must enter into a written agreement agreeing to be bound by these transfer restrictions. As used in this Agreement, Transfer shall mean the (x) sale of, offer to sell, contract or agreement to sell, hypothecation, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position (within the meaning of Section 16 of the Exchange Act, and the rules and regulations of the SEC promulgated thereunder) with respect to, any of the Securities (excluding any pledges in the ordinary course of business for bona fide financing purposes or as part of prime brokerage arrangements; provided, that for so long as the restrictions on Transfer set forth in the first sentence of Section 7(b) of this Agreement remain in effect, no such pledges shall be effected by the Sponsor or Omar M. Asali (including any controlled affiliates of Omar M. Asali) without the prior written consent of Forward Contract Parties that have committed to purchase more than 50% of the Total Forward Purchase Shares), (y) entry into any"
"swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any of the Securities, whether any such transaction is to be settled by delivery of such Securities, in cash or otherwise, or (z) public announcement of any intention to effect any transaction specified in clause (x) or (y). For the avoidance of doubt, this Section 6(a) shall not restrict the ability to exercise any Forward Purchase Warrants in accordance with their terms."
"(i) Complete Forfeiture Upon Failure to Fund. The Purchaser agrees that, to the extent that it fails to pay the FPS Purchase Price when required in accordance with Section 1 hereof and such failure to pay remains uncured after five (5) Business Days notice from the Company, the Purchaser shall forfeit to the Company all of its Class B Shares. If the Purchaser fails to forfeit any Class B Shares it is required to forfeit hereunder, the Purchaser hereby grants hereunder to the Company and any representative designated by the Company without further action by the Purchaser a limited irrevocable power of attorney to effect such forfeiture on behalf of the Purchaser, which power of attorney shall be deemed to be coupled with an interest."
"(ii) Partial Forfeiture in Connection with Business Combination Closing. If, in connection with the Business Combination Closing, the Sponsor agrees to forfeit any Class B Shares to the Company at no cost (other than pursuant to Section 7(a) of this Agreement) or subject its Class B Shares to contractual terms or restrictions, convert its Class B Shares into other securities or contractual rights or otherwise modify the terms of its Class B Shares, and the agreement relating to such forfeiture shall have received the consent of Forward Contract Parties that have committed to purchase more than 50% of the Total Forward Purchase Shares (each a Class B Change), then the Purchaser agrees to forfeit, subject, convert or modify its Class B Shares on a pro rata basis and on the same terms as the Sponsor, and hereby grants to the Company and any representative designated by the Company without further action by the Purchaser a limited irrevocable power of attorney to effect such forfeiture or Class B Change on behalf of the Purchaser, which power of attorney shall be deemed to be coupled with an interest."
"(i) The Purchaser hereby acknowledges that it is aware that the Company will establish a trust account (the Trust Account) for the benefit of its public shareholders upon the closing of the IPO. The Purchaser, for itself and its affiliates, hereby agrees that it has no right, title, interest or claim of any kind in or to any monies held in the Trust Account, or any other asset of the Company as a result of any liquidation of the Company, except for redemption and liquidation rights, if any, the Purchaser may have in respect of any Public Shares held by it."
"(f) No Short Sales. The Purchaser hereby agrees that neither it, nor any person or entity acting on its behalf or pursuant to any understanding with it, will engage in any Short Sales with respect to securities of the Company prior to the Business Combination Closing. For purposes of this Section, Short Sales shall include all short sales as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, and all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers."
"(a) Potential Forfeiture by Sponsor. Upon the redemption of Public Shares by any public shareholder in connection with the shareholder vote to approve the Business Combination as provided for in the Charter (each a Public Share Redemption), the Sponsor agrees to forfeit to the Company at no cost one Class B Share for each four (4) Public Shares redeemed in the Public Share Redemption; provided, that in no event shall the Sponsor forfeit any fractional Class B Share."
"period; and (B) up to 100.0% of their Sponsor Shares, in one or more Transfers, following any thirty (30) consecutive trading day period after the Business Combination Closing during which the MOI Ratio (as defined below) is equal to or exceeds 2.0 to 1.0 for each trading day during such period. For purposes of this Section 7(b)(ii), the MOI Ratio for any trading day is equal to the ratio of (A) the aggregate market value, based on the closing trading price of the Class A Shares (or any shares of common stock or other equity security into which the Class A Shares are convertible or reclassified) on such trading day, of the number of Class A Shares, Class B Shares, Class C Shares and Warrants initially issued by the Company to the Forward Contract Parties pursuant to this Agreement, the Private Placement Warrant Agreement and the Warrant Agreement, as applicable, to (B) the total dollar amount contributed by the Forward Contract Parties to the capital of the Company in connection with this Agreement, the Private Placement Warrant Agreement and the Warrant Agreement;"
"(i) the Purchaser shall be granted the right to purchase, at the same price paid, directly or indirectly, by, and on the same other terms and conditions as, Mr. Asali, a number of founder shares of such New SPAC equal to its pro rata share of five percent (5%) of the founder shares of such New SPAC, with such pro rata share calculated by reference to the number of Forward Purchase Shares the Purchaser has agreed to purchase hereunder out of the total number of Class A Shares and/or Class C Shares that the Purchaser and other Forward Contract Parties (including, for the avoidance of doubt, the Founder Anchor) have agreed to purchase at the FPS Closing; and"
"(i) Key Man Insurance. Unless the waiver of Forward Contract Parties that have committed to purchase more than 50% of the Total Forward Purchase Shares has been obtained, the Sponsor will use reasonable best efforts to obtain, or cause to be obtained, prior to the date that is ninety (90) calendar days following the IPO Closing, a key man life insurance policy insuring Omar M. Asali for the face amount of $5,000,000 in favor of the Forward Contract Parties on a pro rata basis. The payment of the premiums for such policy shall be made by the Sponsor."
"(l) Notice of Material Change. Prior to the date that the Registration Statement is declared effective by the SEC, the Company shall not implement or effect, or cause to be implemented or effected, any Material Change (as defined below) to any term of the Public Units, Class A Shares or Warrants set forth in the Charter or Warrant Agreement, as applicable, unless the Company has received the consent (in accordance with the procedure set forth in the next and second-to-next sentence of this Section 7(k)) of Forward Contract Parties that have committed to purchase more than 50% of the Total Forward Purchase Shares. For purposes of this Section 7(k), following written notice from the Company to the Forward Contract Parties stating the Companys intention to implement or effect a Material Change as described in the foregoing sentence, the Forward Contract Parties shall have four (4) Business Days (the Consent Period) to deliver a written notice to the Company providing consent to the Company in the manner described in the foregoing sentence or objecting to the Material Change. If the Company does not receive any such written notice from the Forward Contract Parties during the Consent Period, the Forward Contract Parties shall be deemed to have consented to the Material Change."
"(a) The obligation of the Purchaser to purchase the Forward Purchase Securities at the FPS Closing under this Agreement shall be subject to the fulfillment, at or prior to the FPS Closing of each of the following conditions, any of which, to the extent permitted by applicable laws, may be waived by the Purchaser:"
"(vi) No order, writ, judgment, injunction, decree, determination, or award shall have been entered by or with any governmental, regulatory, or administrative authority or any court, tribunal, or judicial, or arbitral body, and no other legal restraint or prohibition shall be in effect, preventing the purchase by the Purchaser of the Securities."
"(b) No Finders Fees. Other than fees payable to Credit Suisse Securities (USA) LLC or Merrill Lynch, Pierce, Fenner & Smith Incorporated, which shall be the responsibility of the Company, each party represents that it neither is nor will be obligated for any finders fee or commission in connection with this transaction. The Purchaser agrees to indemnify and to hold harmless the Company from any liability for any commission or compensation in the nature of a finders or brokers fee arising out of this transaction (and the costs and expenses of defending against such liability or asserted liability) for which the Purchaser or any of its officers, employees or representatives is responsible. The Company agrees to indemnify and hold harmless the Purchaser from any liability for any commission or compensation in the nature of a finders or brokers fee arising out of this transaction (and the costs and expenses of defending against such liability or asserted liability) for which the Company or any of its officers, employees or representatives is responsible."
"(m) Severability. The provisions of this Agreement will be deemed severable and the invalidity or unenforceability of any provision will not affect the validity or enforceability of the other provisions hereof; provided that if any provision of this Agreement, as applied to any party hereto or to any circumstance, is adjudged by a governmental authority, arbitrator, or mediator not to be enforceable in accordance with its terms, the parties hereto agree that the governmental authority, arbitrator, or mediator making such determination will have the power to modify the provision in a manner consistent with its objectives such that it is enforceable, and/or to delete specific words or phrases, and in its reduced form, such provision will then be enforceable and will be enforced."
"(r) Specific Performance. The Purchaser agrees that irreparable damage would occur in the event that any provision of this Agreement was not performed by the Purchaser in accordance with the specific terms hereof or was otherwise breached, and that money damages or legal remedies would not be an adequate remedy for any such damages. Therefore, it is accordingly agreed that the Company shall be entitled to enforce specifically the terms and provisions of this Agreement, or to enforce compliance with, the covenants and obligations of the Purchaser, in any court of competent jurisdiction, and appropriate injunctive relief shall be granted in connection therewith. The Company, in seeking an injunction, a decree or order of specific performance, shall not be required to provide any bond or other security in connection therewith and any such remedy shall be in addition and not in substitution for any other remedy to which the Company is entitled at law or in equity."
Number of Forward Purchase Shares: |  ---|---  |  Number of Forward Purchase Warrants: |   |  Aggregate Purchase Price for Forward Purchase Securities: | $  |  Class B Shares Purchase Amount: |   |  Aggregate Purchase Price for Class B Shares: | $  
"the Company and the Other Holders, if any; and (ii) second, to the Piggyback Holders based on the pro rata percentage of Piggyback Securities held by the Piggyback Holders and requested to be included in the Underwritten Offering. Notwithstanding anything to the contrary in this paragraph 3, the Company hereby agrees that it will not provide an Offer Notice to any other Forward Contract Party unless such other Forward Contract Party agrees in writing to treat the contents of such Offer Notice as material non-public information."
"8\. The Company may suspend the use of a prospectus included in the Resale Shelf by furnishing to the Purchaser a written notice (Suspension Notice) stating that in the good faith judgment of the Company, it would be either (i) prohibited by the Companys insider trading policy (as if the Purchaser were covered by such policy) or (ii) materially detrimental to the Company and its stockholders for such prospectus to be used at such time. The Companys right to suspend the use of such prospectus under clause (ii) of the preceding sentence may be exercised for a period of not more than sixty (60) days after the date of such notice to the Purchaser; provided such period may be extended for an additional thirty (30) days with the consent of a majority-in-interest of the holders of Registrable Securities covered by the Resale Shelf; provided further, that such right to suspend the use of a prospectus shall be exercised by the Company not more than once in any twelve (12) month period. A holder of Registrable Securities shall not effect any sales of Registrable Securities pursuant to the Resale Shelf at any time after it has received a Suspension Notice from the Company and prior to receipt of an End of Suspension Notice (as defined below). The holders may recommence effecting sales of the Registrable Securities pursuant to the Resale Shelf following further written notice to such effect (an End of Suspension Notice) from the Company to the holders. The Company shall act in good faith to permit any suspension period contemplated by this paragraph to be concluded as promptly as reasonably practicable."
"9\. The Purchaser agrees that, except as required by applicable law, the Purchaser shall treat as confidential the receipt of any Suspension Notice (provided that in no event shall such notice contain any material nonpublic information of the Company) hereunder and shall not disclose or use the information contained in such Suspension Notice without the prior written consent of the Company until such time as the information contained therein is or becomes public, other than as a result of disclosure by a holder of Registrable Securities in breach of the terms of this Agreement."
"stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; provided, however, that the Company shall not be liable in any such case or to any Indemnified Person to the extent that any such Loss arises out of, is based upon or results from an untrue statement or alleged untrue statement or omission or alleged omission or so made in reliance upon or in conformity with information furnished by or on behalf of such Indemnified Person in writing specifically for use in the preparation of the Resale Shelf, the related prospectus, or any amendment or supplement thereto. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Indemnified Person, and shall survive the transfer of such securities by the Purchaser."
"13\. If requested by the Purchaser, the Company shall as soon as practicable, subject to any Suspension Notice, (i) incorporate in a prospectus supplement or post-effective amendment such information as the Purchaser reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) supplement or make amendments to any Registration Statement if reasonably requested by the Purchaser holding any Registrable Securities."
"| 5| The share capital of the Company is US$[ ] divided into 200,000,000 Class A ordinary shares of a par value of US$0.0001 each, 25,000,000 Class B ordinary shares of a par value of US$0.0001 each, [amount] Class C ordinary shares of a par value of US$0.0001 each and 1,000,000 preference shares of a par value of US$0.0001 each. ---|---|--- "
"""Company"" | means the above named company. ---|--- ""Designated Stock Exchange"" | means any national securities exchange in the United States on which Shares are listed for trading, including the NASDAQ Stock Market LLC, the NYSE MKT LLC, The New York Stock Exchange LLC or any OTC market. ""Directors"" | means the directors for the time being of the Company. ""Dividend"" | means any dividend (whether interim or final) resolved to be paid on Shares pursuant to the Articles. ""Electronic Record"" | has the same meaning as in the Electronic Transactions Law. ""Electronic Transactions Law"" | means the Electronic Transactions Law (2003 Revision) of the Cayman Islands. ""Exchange Act"" | means the United States Securities Exchange Act of 1934, as amended. ""Founders"" | means the Sponsor and all Members immediately prior to the consummation of the IPO. Forward Purchase Agreements | means forward purchase agreements entered into among the Company, the Sponsor and certain investors prior to the IPO. Forward Purchase Shares | means Class A Shares and/or Class C Shares issued pursuant to Forward Purchase Agreements. Forward Purchase Warrants | means warrants issued pursuant to Forward Purchase Agreements ""IPO"" | means the Company's initial public offering of securities. ""IPO Redemption"" | has the meaning given to it in Article 49.3. ""Member"" | has the same meaning as in the Statute. ""Memorandum"" | means the memorandum of association of the Company. ""Ordinary Resolution"" | means a resolution passed by a simple majority of the Members as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting, and includes a unanimous written resolution. In computing the majority when a poll is demanded regard shall be had to the number of votes to which each Member is entitled by the Articles. ""Over-Allotment Option"" | means the option of the Underwriters to purchase up to an additional 15% of the units (as described at Article 3.3) sold in the IPO at a price equal to US$10.00 per unit, less underwriting discounts and commissions. ""Preference Share"" | means a preference share of a par value of US$0.0001 in the share capital of the Company. ""Public Shares"" | means Class A Shares issued as part of the units sold in the IPO. ""Register of Members"" | means the register of Members maintained in accordance with the Statute and includes (except where otherwise stated) any branch or duplicate register of Members. ""Registered Office"" | means the registered office for the time being of the Company. ""Redemption Price"" | has the meaning given to it in Article 49.3. "
"""Seal"" | means the common seal of the Company and includes every duplicate seal. ---|--- ""SEC"" | means the United States Securities and Exchange Commission. ""Share"" | means a Class A Share, a Class B Share, a Class C Share or a Preference Share and includes a fraction of a share in the Company. ""Special Resolution"" | subject to Article 29.4, has the same meaning as in the Statute, and includes a unanimous written resolution. ""Sponsor"" | means One Madison Group, LLC, a Delaware limited liability company. ""Statute"" | means the Companies Law (2016 Revision) of the Cayman Islands. ""Subscriber"" | means the subscriber to the Memorandum. ""Treasury Share"" | means a Share held in the name of the Company as a treasury share in accordance with the Statute. ""Trust Fund"" | means the trust account established by the Company upon the consummation of its IPO and into which a certain amount of the net proceeds of the IPO, together with the proceeds of the private placement of the warrants (the ""Private Placement Warrants"") simultaneously with the closing date of the IPO, will be deposited. ""Underwriters"" | means the underwriters of the IPO. "
"References in this Article 4.3 to ""converted"", ""conversion"" or ""exchange"" shall mean the redemption of Class C Shares of any Member and, on behalf of such Members, automatic application of such redemption proceeds in paying for such new Class A Shares into which the Class C Shares have been converted or exchanged at a price per Class C Share necessary to give effect to a conversion or exchange calculated on the basis that the Class A Shares to be issued as part of the conversion or exchange will be issued at par. The Class A Shares to be issued on an exchange or conversion shall be registered in the name of such Member or in such name as the Member may direct."
"| 5.2| The Directors may determine that the Company shall maintain one or more branch registers of Members in accordance with the Statute. The Directors may also determine which register of Members shall constitute the principal register and which shall constitute the branch register or registers, and to vary such determination from time to time. ---|---|--- "
"| 6.1| For the purpose of determining Members entitled to notice of, or to vote at any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any Dividend or other distribution, or in order to make a determination of Members for any other purpose, the Directors may, after any applicable notice has been given by advertisement in an appointed newspaper or any other newspaper or by any other means in accordance with the requirements of the Designated Stock Exchange, provide that the Register of Members shall be closed for transfers for a stated period which shall not in any case exceed forty days. ---|---|--- "
"| 15.4| If a call remains unpaid after it has become due and payable, the person from whom it is due shall pay interest on the amount unpaid from the day it became due and payable until it is paid at such rate as the Directors may determine (and in addition all expenses that have been incurred by the Company by reason of such non-payment), but the Directors may waive payment of the interest or expenses wholly or in part. ---|---|--- "
"| 16.3| A forfeited Share may be sold, re-allotted or otherwise disposed of on such terms and in such manner as the Directors think fit and at any time before a sale, re-allotment or disposition the forfeiture may be cancelled on such terms as the Directors think fit. Where for the purposes of its disposal a forfeited Share is to be transferred to any person the Directors may authorise some person to execute an instrument of transfer of the Share in favour of that person. ---|---|--- "
"| 17.1| If a Member dies the survivor or survivors (where he was a joint holder) or his legal personal representatives (where he was a sole holder), shall be the only persons recognised by the Company as having any title to his Shares. The estate of a deceased Member is not thereby released from any liability in respect of any Share, for which he was a joint or sole holder. ---|---|--- "
"| 17.2| Any person becoming entitled to a Share in consequence of the death or bankruptcy or liquidation or dissolution of a Member (or in any other way than by transfer) may, upon such evidence being produced as may be required by the Directors, elect, by a notice in writing sent by him to the Company, either to become the holder of such Share or to have some person nominated by him registered as the holder of such Share. If he elects to have another person registered as the holder of such Share he shall sign an instrument of transfer of that Share to that person. The Directors shall, in either case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the Share by the relevant Member before his death or bankruptcy or liquidation or dissolution, as the case may be. ---|---|--- "
"| 23.3| A Member of unsound mind, or in respect of whom an order has been made by any court, having jurisdiction in lunacy, may vote by his committee, receiver, curator bonis, or other person on such Member's behalf appointed by that court, and any such committee, receiver, curator bonis or other person may vote by proxy. ---|---|--- "
| 24.3| The instrument appointing a proxy may be in any usual or common form (or such other form as the Directors may approve) and may be expressed to be for a particular meeting or any adjournment thereof or generally until revoked. An instrument appointing a proxy shall be deemed to include the power to demand or join or concur in demanding a poll. ---|---|--- 
"| 25.2| If a clearing house (or its nominee(s)), being a corporation, is a Member, it may authorise such persons as it sees fit to act as its representative at any meeting of the Company or at any meeting of any class of Members provided that the authorisation shall specify the number and class of Shares in respect of which each such representative is so authorised. Each person so authorised under the provisions of this Article shall be deemed to have been duly authorised without further evidence of the facts and be entitled to exercise the same rights and powers on behalf of the clearing house (or its nominee(s)) as if such person was the registered holder of such Shares held by the clearing house (or its nominee(s)). ---|---|--- "
"There shall be a board of Directors consisting of not less than one person provided however that the Company may by Ordinary Resolution increase or reduce the limits in the number of Directors. The first Directors of the Company shall be determined in writing by, or appointed by a resolution of, the Subscriber."
"| 28.3| The Directors on behalf of the Company may pay a gratuity or pension or allowance on retirement to any Director who has held any other salaried office or place of profit with the Company or to his widow or dependants and may make contributions to any fund and pay premiums for the purchase or provision of any such gratuity, pension or allowance. ---|---|--- "
"| 29.1| Prior to the closing of a Business Combination, the Company may by Ordinary Resolution of the holders of the Class B Shares appoint any person to be a Director or may by Ordinary Resolution remove any Director. For the avoidance of doubt, prior to the closing of a Business Combination holders of Class A Shares shall have no right to vote on the appointment or removal of any Director. ---|---|--- "
"| 31.1| The quorum for the transaction of the business of the Directors may be fixed by the Directors, and unless so fixed shall be a majority if there are three or more Directors, shall be two if there are two Directors, and shall be one if there is only one Director. ---|---|--- "
| 31.3| A person may participate in a meeting of the Directors or committee of Directors by conference telephone or other communications equipment by means of which all the persons participating in the meeting can communicate with each other at the same time. Participation by a person in a meeting in this manner is treated as presence in person at that meeting. Unless otherwise determined by the Directors the meeting shall be deemed to be held at the place where the chairman is located at the start of the meeting. ---|---|--- 
"| 33.5| A general notice that a Director is a shareholder, director, officer or employee of any specified firm or company and is to be regarded as interested in any transaction with such firm or company shall be sufficient disclosure for the purposes of voting on a resolution in respect of a contract or transaction in which he has an interest, and after such general notice it shall not be necessary to give special notice relating to any particular transaction. ---|---|--- "
"The Directors shall cause minutes to be made in books kept for the purpose of recording all appointments of officers made by the Directors, all proceedings at meetings of the Company or the holders of any class of Shares and of the Directors, and of committees of the Directors, including the names of the Directors present at each meeting."
"| 35.3| The Directors may by power of attorney or otherwise appoint any person to be the agent of the Company on such conditions as the Directors may determine, provided that the delegation is not to the exclusion of their own powers and may be revoked by the Directors at any time. ---|---|--- "
"Directors, or general meetings of the Company, or separate meetings of the holders of any class of Shares or debentures of the Company, or otherwise in connection with the business of the Company or the discharge of their duties as a Director, or to receive a fixed allowance in respect thereof as may be determined by the Directors, or a combination partly of one such method and partly the other."
"| 38.3| A Director or officer, representative or attorney of the Company may without further authority of the Directors affix the Seal over his signature alone to any document of the Company required to be authenticated by him under seal or to be filed with the Registrar of Companies in the Cayman Islands or elsewhere wheresoever. ---|---|--- "
"| 39.2| Except as otherwise provided by the rights attached to any Shares, all Dividends and other distributions shall be paid according to the par value of the Shares that a Member holds. If any Share is issued on terms providing that it shall rank for Dividend as from a particular date, that Share shall rank for Dividend accordingly. ---|---|--- "
make such provisions as they think fit in the case of Shares becoming distributable in fractions (including provisions whereby the benefit of fractional entitlements accrue to the Company rather than to the Members concerned). The Directors may authorise any person to enter on behalf of all of the Members interested into an agreement with the Company providing for such capitalisation and matters incidental or relating thereto and any agreement made under such authority shall be effective and binding on all such Members and the Company.
"| 42.7| Auditors shall, if so required by the Directors, make a report on the accounts of the Company during their tenure of office at the next annual general meeting following their appointment in the case of a company which is registered with the Registrar of Companies as an ordinary company, and at the next extraordinary general meeting following their appointment in the case of a company which is registered with the Registrar of Companies as an exempted company, and at any other time during their term of office, upon request of the Directors or any general meeting of the Members. ---|---|--- "
"| 43.3| A notice may be given by the Company to the person or persons which the Company has been advised are entitled to a Share or Shares in consequence of the death or bankruptcy of a Member in the same manner as other notices which are required to be given under the Articles and shall be addressed to them by name, or by the title of representatives of the deceased, or trustee of the bankrupt, or by any like description at the address supplied for that purpose by the persons claiming to be so entitled, or at the option of the Company by giving the notice in any manner in which the same might have been given if the death or bankruptcy had not occurred. ---|---|--- "
"| (b)| if the assets available for distribution amongst the Members shall be more than sufficient to repay the whole of the Company's issued share capital at the commencement of the winding up, the surplus shall be distributed amongst the Members in proportion to the par value of the Shares held by them at the commencement of the winding up subject to a deduction from those Shares in respect of which there are monies due, of all monies payable to the Company for unpaid calls or otherwise. ---|---|--- "
"If the Company initiates any tender offer in accordance with Rule 13e-4 and Regulation 14E of the Exchange Act in connection with a Business Combination, it shall file tender offer documents with the SEC prior to completing a Business Combination which contain substantially the same financial and other information about such Business Combination and the redemption rights as is required under Regulation 14A of the Exchange Act."
"| 49.3| Any Member holding Public Shares who is not a Founder, officer or Director may, contemporaneously with any vote on a Business Combination, elect to have their Public Shares redeemed for cash (the ""IPO Redemption""), provided that no such Member acting together with any affiliate of his or any other person with whom he is acting in concert or as a partnership, syndicate, or other group for the purposes of acquiring, holding, or disposing of Shares may exercise this redemption right with respect to more than 20% of the Public Shares with the Companys prior consent. If so demanded, the Company shall pay any such redeeming Member, regardless of whether he is voting for or against such proposed Business Combination, a per-Share redemption price payable in cash, equal to the aggregate amount then on deposit in the Trust Fund calculated as of two business days prior to the consummation of the Business Combination, including interest earned on the Trust Fund not previously released to the Company (net of income taxes payable), divided by the number of then issued Public Shares (such redemption price being referred to herein as the ""Redemption Price""). ---|---|--- "
"| (a)| the Company does not consummate a Business Combination by twenty-four months (the Business Combination Period) after the closing of the IPO, or such later time as the Members of the Company may approve in accordance with the Articles, the Company shall: (i) cease all operations except for the purpose of winding up; (ii) as promptly as reasonably possible but not more than ten business days thereafter, redeem the Public Shares, at a per-Share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Fund, including interest earned on the Trust Fund (less up to US$100,000 of interest to pay dissolution expenses and net of income taxes payable), divided by the number of then issued Public Shares, which redemption will completely extinguish public Members' rights as Members (including the right to receive further liquidation distributions, if any); and (iii) as promptly as reasonably possible following such redemption, subject to the approval of the Company's remaining Members and its board of Directors, dissolve and liquidate, subject in the case of clauses (ii) and (iii), to its obligations under Cayman Islands law to provide for claims of creditors and in all cases subject to the other requirements of applicable law; and ---|---|--- "
"| 49.8| The Company may enter into a Business Combination with a target business that is affiliated with the Sponsor, the Directors or executive officers of the Company. In the event the Company seeks to complete an initial Business Combination with a target that is affiliated with the Sponsor, executive officers or Directors, the Company, or a committee of independent Directors, will obtain an opinion from an independent investment banking firm that is a member of the Financial Industry Regulatory Authority or an independent accounting firm that such an initial Business Combination is fair to the Company from a financial point of view. ---|---|--- "
"Accounting Firm means a nationally recognized or regionally recognized independent certified public accountant selected by mutual agreement of the Buyer and the Seller. If the Buyer and the Seller are unable to mutually agree upon such an accountant within ten (10) days, then the Buyer and the Seller shall each select a nationally recognized accountant and within five (5) days after their selection, those two accountants shall select a third nationally recognized accountant, which third accountant shall act as the Accounting Firm."
"Affiliate of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term control (including the terms controlled by and under common control with) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise."
"Hazardous Materials means: (a) any material, substance, chemical, waste, product, derivative, compound, mixture, solid, liquid, mineral or gas, in each case, whether naturally occurring or manmade, that is hazardous, acutely hazardous, toxic, or words of similar import or regulatory effect under Environmental Laws; and (b) any petroleum or petroleum-derived products, radon, radioactive materials or wastes, asbestos in any form, lead or lead- containing materials, urea formaldehyde foam insulation, and polychlorinated biphenyls."
"Taxes means all federal, state, local, foreign and other income, gross receipts, sales, use, production, ad valorem, transfer, franchise, registration, profits, license, lease, service, service use, withholding, payroll, employment, unemployment, estimated, excise, severance, environmental, stamp, occupation, premium, property (real or personal), real property gains, windfall profits, customs, duties or other taxes, fees, assessments or charges of any kind whatsoever, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties."
"(b) All of the Shares were issued in compliance with applicable Laws. None of the Shares were issued in violation of any agreement, arrangement or commitment to which Seller or the Company is a party or is subject to or in violation of any preemptive or similar rights of any Person."
"Section 3.05 No Conflicts; Consents. The execution, delivery and performance by Seller of this Agreement and the Ancillary Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (a) conflict with or result in a violation or breach of, or default under, any provision of the certificate of incorporation, by-laws or other organizational documents of Seller or the Company; (b) conflict with or result in a violation or breach of any provision of any Law or Governmental Order applicable to Seller or the Company; (c) require the consent, notice or other action by any Person under, conflict with, result in a violation or breach of, constitute a default or an event that, with or without notice or lapse of time or both, would constitute a default under, result in the acceleration of or create in any party the right to accelerate, terminate, modify or cancel any Contract to which Seller or the Company is a party or by which Seller or the Company is bound or to which any of their respective properties and assets are subject (including any Material Contract) or any Permit affecting the properties, assets or business of the Company; or (d) result in the creation or imposition of any Encumbrance on any properties or assets of the Company. No consent, approval, Permit, Governmental Order, declaration or filing with, or notice to, any Governmental Authority is required by or with respect to Seller or the Company in connection with the execution and delivery of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby."
"Section 3.07 Undisclosed Liabilities. The Company has no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, known or unknown, absolute or contingent, accrued or unaccrued, matured or unmatured or otherwise (Liabilities), except (a) those which are adequately reflected or reserved against in the Balance Sheet as of the Balance Sheet Date, and (b) those which have been incurred in the ordinary course of business consistent with past practice since the Balance Sheet Date and which are not, individually or in the aggregate, material in amount."
"(z) action by the Company to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer in respect of any Post-Closing Tax Period; or"
"(b) Section 3.10(b) of the Disclosure Schedules lists (i) the street address of each parcel of Real Property; (ii) if such property is leased or subleased by the Company, the landlord under the lease, the rental amount currently being paid, and the expiration of the term of such lease or sublease for each leased or subleased property; and (iii) the current use of such property. With respect to owned Real Property, Seller has delivered or made available to Buyer true, complete and correct copies of the deeds and other instruments (as recorded) by which the Company acquired such Real Property, and copies of all title insurance policies, opinions, abstracts and surveys in the possession of Seller or the Company and relating to the Real Property. With respect to leased Real Property, Seller has delivered or made available to Buyer true, complete and correct copies of any leases affecting the Real Property. The Company is not a sublessor or grantor under any sublease or other instrument granting to any other Person any right to the possession, lease, occupancy or enjoyment of any leased Real Property. The use and operation of the Real Property in the conduct of the Companys business do not violate in any material respect any Law, covenant, condition, restriction, easement, license, permit or agreement. No material improvements constituting a part of the Real Property encroach on real property owned or leased by a Person other than the Company. There are no Actions pending nor, to the Sellers Knowledge, threatened against or affecting the Real Property or any portion thereof or interest therein in the nature or in lieu of condemnation or eminent domain proceedings."
"Section 3.13 Inventory. All inventory of the Company, whether or not reflected in the Balance Sheet, consists of a quality and quantity usable and salable in the ordinary course of business consistent with past practice, except for obsolete, damaged, defective or slow-moving items that have been written off or written down to fair market value or for which adequate reserves have been established. All such inventory is owned by the Company free and clear of all Encumbrances, and no inventory is held on a consignment basis. The quantities of each item of inventory (whether raw materials, work-in-process or finished goods) are not excessive, but are reasonable in the present circumstances of the Company."
"(a) There are no Actions pending or, to Sellers Knowledge, threatened (a) against or by the Company affecting any of its properties or assets (or by or against Seller or any Affiliate thereof and relating to the Company); or (b) against or by the Company, Seller or any Affiliate of Seller that challenges or seeks to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. To Sellers knowledge, no event has occurred or circumstances exist that may give rise to, or serve as a basis for, any such Action."
"(h) Seller has provided or otherwise made available to Buyer: (i) any and all environmental reports, studies, audits, records, sampling data, site assessments, risk assessments, economic models and other similar documents with respect to the business or assets of the Company or any currently or formerly owned, operated or leased real property which are in the possession or control of the Seller or Company related to compliance with Environmental Laws, Environmental Claims or an Environmental Notice or the Release of Hazardous Materials; and (ii) any and all material documents concerning planned or anticipated capital expenditures required to reduce, offset, limit or otherwise control pollution and/or emissions, manage waste or otherwise ensure compliance with current or future Environmental Laws (including, without limitation, costs of remediation, pollution control equipment and operational changes)."
"(i) There has been no amendment to, announcement by Seller, the Company or any of their Affiliates relating to, or change in employee participation or coverage under, any Benefit Plan or collective bargaining agreement that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year (other than on a de minimis basis) with respect to any director, officer, employee, independent contractor or consultant, as applicable. None of Seller, the Company, nor any of their Affiliates has any commitment or obligation or has made any representations to any director, officer, employee, independent contractor or consultant, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan or any collective bargaining agreement."
"(a) Section 3.21(a) of the Disclosure Schedules contains a list of all persons who are employees, independent contractors or consultants of the Company as of the date hereof, including any employee who is on a leave of absence of any nature, paid or unpaid, authorized or unauthorized, and sets forth for each such individual the following: (i) name; (ii) title or position (including whether full-time or part-time); (iii) hire or retention date; (iv) current annual base compensation rate or contract fee; (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. As of the date hereof, all compensation, including wages, commissions, bonuses, fees and other compensation, payable to all employees, independent contractors or consultants of the Company 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 the Company with respect to any compensation, commissions, bonuses or fees."
"(b) The Company is not, and has not been for the past five (5) years, a party to, bound by, or negotiating any collective bargaining agreement or other Contract with a union, works council or labor organization (collectively, Union), and there is not, and has not been for the past five (5) years, any Union representing or purporting to represent any employee of the Company, and no Union or group of employees is seeking or has sought to organize employees for the purpose of collective bargaining. There has never been, nor has there been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar labor disruption or dispute affecting the Company or any of its employees. The Company has no duty to bargain with any Union."
"(a) All Tax Returns required to be filed on or before the Closing Date by the Company have been, or will be, timely filed. Such Tax Returns are, or will be, true, complete and correct in all respects. All Taxes due and owing by the Company (whether or not shown on any Tax Return) have been, or will be, timely paid. The Company has withheld and paid each Tax required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, customer, shareholder or other party, and complied with all information reporting and backup withholding provisions of applicable Law. No claim has been made by any taxing authority in any jurisdiction where the Company does not file Tax Returns that it is, or may be, subject to Tax by that jurisdiction. No extensions or waivers of statutes of limitations have been given or requested with respect to any Taxes of the Company."
"(c) All deficiencies asserted, or assessments made, against the Company as a result of any examinations by any taxing authority have been fully paid. The Company is not a party to any Action by any taxing authority. There are no pending or threatened Actions by any taxing authority. Seller has delivered to Buyer copies of all federal, state, local and foreign income, franchise and similar Tax Returns, examination reports, and statements of deficiencies assessed against, or agreed to by, the Company for all Tax periods ending after December 31, 2010. There are no Encumbrances for Taxes (other than for current Taxes not yet due and payable) upon the assets of the Company."
"(g) Section 3.22(g) of the Disclosure Schedules sets forth all foreign jurisdictions in which the Company is subject to Tax, is engaged in business or has a permanent establishment. The Company has not entered into a gain recognition agreement pursuant to Treasury Regulations Section 1.367(a)-8. The Company has not transferred an intangible the transfer of which would be subject to the rules of Section 367(d) of the Code."
"(h) No property owned by the Company is (i) required to be treated as being owned by another person pursuant to the so-called safe harbor lease provisions of former Section 168(f)(8) of the Internal Revenue Code of 1954, as amended, (ii) subject to Section 168(g)(1)(A) of the Code, or (iii) subject to a disqualified leaseback or long-term agreement as defined in Section 467 of the Code."
"Section 3.23 Books and Records. The minute books and stock record books of the Company, all of which have been made available to Buyer, are complete and correct and have been maintained in accordance with sound business practices. The minute books of the Company contain accurate and complete records of all meetings, and actions taken by written consent of, the stockholders, the board of directors and any committees of the board of directors of the Company, and no meeting, or action taken by written consent, of any such stockholders, board of directors or committee has been held for which minutes have not been prepared and are not contained in such minute books. At the Closing, all of those books and records will be in the possession of the Company."
"Section 4.02 No Conflicts; Consents. The execution, delivery and performance by Buyer of this Agreement and the Ancillary Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (a) conflict with or result in a violation or breach of, or default under, any provision of the certificate of formation, limited liability company agreement or other organizational documents of Buyer; (b) conflict with or result in a violation or breach of any provision of any Law or Governmental Order applicable to Buyer; or (c) require the consent, notice or other action by any Person under any Contract to which Buyer is a party. No consent, approval, Permit, Governmental Order, declaration or filing with, or notice to, any Governmental Authority is required by or with respect to Buyer in connection with the execution and delivery of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby."
"Section 5.02 Access to Information. From the date hereof until the Closing, Seller shall, and shall cause the Company to, (a) afford Buyer and its Representatives full and free access to and the right to inspect all of the Real Property, properties, assets, premises, books and records, Contracts and other documents and data related to the Company; (b) furnish Buyer and its Representatives with such financial, operating and other data and information related to the Company as Buyer or any of its Representatives may reasonably request; and (c) instruct the Representatives of Seller and the Company to cooperate with Buyer in its investigation of the Company. Without limiting the foregoing, Seller shall permit Buyer and its Representatives to conduct environmental due diligence of the Company and the Real Property, including the collecting and analysis of samples of indoor or outdoor air, surface water, groundwater or surface or subsurface land on, at, in, under or from the Company and the Real Property. Any investigation pursuant to this Section 5.02 shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of Seller or the Company. No investigation by Buyer or other information received by Buyer shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by Seller in this Agreement."
"(b) In addition to the other obligations under this Section 5.03, Seller shall promptly (and in any event within three business days after receipt thereof by Seller or its Representatives) advise Buyer orally and in writing of any Acquisition Proposal, any request for information with respect to any Acquisition Proposal, or any inquiry with respect to or which could reasonably be expected to result in an Acquisition Proposal, the material terms and conditions of such request, Acquisition Proposal or inquiry, and the identity of the Person making the same."
"(i) any fact, circumstance, event or action the existence, occurrence or taking of which (A) has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (B) has resulted in, or could reasonably be expected to result in, any representation or warranty made by Seller hereunder not being true and correct or (C) has resulted in, or could reasonably be expected to result in, the failure of any of the conditions set forth in Section 7.02 to be satisfied;"
"(a) For a period of five years commencing on the Closing Date (the Restricted Period), Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between the Company and customers or suppliers of the Company. 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 5% or more of any class of securities of such Person."
"(b) During the Restricted Period, Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees."
"Section 5.08 Release. Seller, knowingly, voluntarily and unconditionally releases, forever discharges and covenants not to sue the Company and its respective predecessors, successors, parents, subsidiaries and other Affiliates and all of their current and former managers, members, officers, directors, partners, employees, agents and representatives from and for any and all claims, causes of action, demands, suits, debts, obligations, liabilities, damages, losses, costs, and expenses (including attorney fees) of every kind or nature whatsoever, known or unknown, actual or potential, suspected or unsuspected, fixed or contingent, that Seller has or may have, now or in the future, arising out of, relating to, or resulting from any act or omission, errors, negligence, strict liability, breach of contract, tort, violations of law, matter or cause whatsoever from the beginning of time to the Closing Date; provided, however, that such release shall not cover any claims, causes of action, demands, suits, debts, obligations, liabilities, damages, losses, costs and expenses (including attorney fees) of any kind or nature whatsoever arising under this Agreement or any other documents contemplated by this Agreement (collectively, the Released Claims). The foregoing release shall be binding on Sellers respective heirs, successors, assigns, creditors, representatives, guardians, trustees and any other Person claiming by, through or in right of Seller. Seller represents and covenants that there has been, and will be, no assignment or other transfer by Seller of any interest in any Released Claim which Seller may be releasing as of Closing or have had against the Company or any other Person released hereunder. Seller covenants and agrees that it shall not commence, join in, or in any manner seek relief through any suit arising out of, based upon or relating to any Released Claim or in any manner assert or cause or assist another to assert against the applicable released parties any such Released Claim."
"Section 5.13 Further Assurances. Following the Closing, each of the parties hereto shall, and shall cause their respective Affiliates to, execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement. In addition, immediately following the Closing, the Seller shall change its corporate name and amend its corporate documents accordingly to discontinue use of the name SpendSmart Networks and other similar names or any variations thereof, except where legally required to identify the Seller until its name has been changed to another name."
"(b) All transfer, documentary, sales, use, stamp, registration, value added and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement and the Ancillary Documents (including any real property transfer Tax and any other similar Tax) shall be borne and paid by Seller when due. Seller shall, at its own expense, timely file any Tax Return or other document with respect to such Taxes or fees (and Buyer shall cooperate with respect thereto as necessary)."
"Section 6.02 Termination of Existing Tax Sharing Agreements. Any and all existing Tax sharing agreements (whether written or not) binding upon the Company shall be terminated as of the Closing Date. After such date none of the Company, Seller nor any of Sellers Affiliates and their respective Representatives shall have any further rights or liabilities thereunder."
"(a) No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Governmental Order which is in effect and has the effect of making the transactions contemplated by this Agreement illegal, otherwise restraining or prohibiting consummation of such transactions or causing any of the transactions contemplated hereunder to be rescinded following completion thereof."
"(p) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Seller authorizing the execution, delivery and performance of this Agreement and Ancillary 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."
"Section 8.01 Survival. Subject to the limitations and other provisions of this Agreement, the representations and warranties contained herein (other than any representations or warranties contained in Section 3.22 which are subject to Article VI) shall survive the Closing and shall remain in full force and effect until the date that is two (2) years from the Closing Date; provided, that the representations and warranties in (a) Sections 3.01, 3.03, 3.24 and 4.01 shall survive indefinitely, (b) Section 3.19 shall survive for a period of six (6) years after the Closing; and (c) Section 3.20 shall survive for the full period of all applicable statutes of limitations (giving effect to any waiver, mitigation or extension thereof) plus 60 days. All covenants and agreements of the parties contained herein (other than any covenants or agreements contained in Article VI which are subject to Article VI) shall survive the Closing indefinitely or for the period explicitly specified therein. Notwithstanding the foregoing, any claims asserted in good faith with reasonable specificity (to the extent known at such time) and in writing by notice from the non-breaching party to the breaching party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of the relevant representation or warranty and such claims shall survive until finally resolved."
"(d) any Action (whenever instituted) of any third party (including any Governmental Authority) that, if successful, would give rise to or evidence the existence of or relate to a misrepresentation or breach of any of the representations and warranties (construed in accordance with Section 8.04 below) or covenants or agreements to be performed by the Seller or any of its Affiliates, in each case, which are contained in this Agreement or in any other agreement contemplated herein or in any writing delivered in connection herewith (including any attachment, exhibit, schedule or certificate)"
"(a) Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a Third Party Claim) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 calendar days after receipt of such notice of such Third Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third Party Claim at the Indemnifying Partys expense and by the Indemnifying Partys own counsel, and the Indemnified Party shall cooperate in good faith in such defense; provided, that if the Indemnifying Party is Seller, such Indemnifying Party shall not have the right to defend or direct the defense of any such Third Party Claim that (x) is asserted directly by or on behalf of a Person that is a supplier or customer of the Company, or (y) seeks an injunction or other equitable relief against the Indemnified Party. In the event that the Indemnifying Party assumes the defense of any Third Party Claim, subject to Section 8.05(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims"
"(b) Settlement of Third Party Claims. Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not enter into settlement of any Third Party Claim without the prior written consent of the Indemnified Party, except as provided in this Section 8.05(b). If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party and provides, in customary form, for the unconditional release of each Indemnified Party from all liabilities and obligations in connection with such Third Party Claim and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to that effect to the Indemnified Party. If the Indemnified Party fails to consent to such firm offer within ten days after its receipt of such notice, the Indemnified Party may continue to contest or defend such Third Party Claim and in such event, the maximum liability of the Indemnifying Party as to such Third Party Claim shall not exceed the amount of such settlement offer. If the Indemnified Party fails to consent to such firm offer and also fails to assume defense of such Third Party Claim, the Indemnifying Party may settle the Third Party Claim upon the terms set forth in such firm offer to settle such Third Party Claim. If the Indemnified Party has assumed the defense pursuant to Section 8.05(a), it shall not agree to any settlement without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed)."
"Section 10.03 Interpretation. For purposes of this Agreement, (a) the words include, includes and including shall be deemed to be followed by the words without limitation; (b) the word or is not exclusive; and (c) the words herein, hereof, hereby, hereto and hereunder refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Articles, Sections, Disclosure Schedules and Exhibits mean the Articles and Sections of, and Disclosure Schedules and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Disclosure Schedules and Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein."
"(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE ANCILLARY DOCUMENTS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.10(c)."
"Section 10.12 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement."
"THIS STOCK PURCHASE AGREEMENT is made and entered into this 17th day of October, 2017 by and among Sprit International, Inc., a Nevada corporation (the Company), Kimho Consultants Company Limited, a Hong Kong limited liability company (the Purchaser), and Zur Dadon, as the selling stockholder (the Seller). Seller owns 4,000,000 shares (collectively, the Shares), representing 78.3% of the issued and outstanding shares of common stock of the Company. Purchaser desires to purchase from Seller, and Seller is willing to sell the Shares, subject to the terms and conditions contained in this Agreement."
"| 3.6.| Agreements. Except for this Agreement and the Escrow Agreement (as hereinafter defined), and except as disclosed in SEC Reports(as hereinafter defined), there are no agreements, understandings, instruments, contracts or proposed transactions, or judgments, orders, writs or decrees, to which the Company is a party or by which it is bound. The Company is not a guarantor or indemnitor of any indebtedness of any other person, party or entity. The Company has not declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its equity securities. ---|---|--- "
3.9. Financial Statements. The Companys financial statements fairly present the financial condition of the Company at the dates of said statements and the results of its operations for the periods covered thereby and will be prepared in accordance with generally accepted accounting principles and practices consistently applied and consistent with the books and records of the Company.
"3.141. From and after the Closing Date until the filing of the Immediate Report with the SEC, the Seller shall timely collect and deliver necessary information of the Companys business or operation prior to and as of the Closing Date for the purpose of preparing the Immediate Report and shall use its best efforts to cooperate with the Company and the Companys auditor in connection with the auditors review on the Immediate Report."
"| (b)| THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN SOLD PURSUANT TO AN EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH REGULATION S (17 C.F.R. 230.901THROUGH 230.905 AND ITS PRELIMINARY NOTES) UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE SECURITIES MAY NOT BE OFFERED, SOLD OR TRANSFERRED TO A U.S. PERSON, OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON, OR INTO THE UNITED STATES EXCEPT PURSUANT TO A REGISTRATION STATEMENT, OR A VALID EXEMPTION FROM REGISTRATION BASED ON AN OPINION OF COUNSEL APPROVED BY THE ISSUER. HEDGING TRANSACTIONS INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED, DIRECTLY OR INDIRECTLY, UNLESS IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED. ---|---|--- "
"| 5.| Acknowledgement of Escrow Agent as Purchaser Counsel. The Seller and Purchaser hereby acknowledge that they are parties to that certain Escrow Agreement of even date hereof, by and among McMurdo Law Group, LLC (the Escrow Agent), the Purchaser and the Seller (the Escrow Agreement), pursuant to which the Seller and the Purchaser established an escrow account and appointed Escrow Agent to serve as the escrow agent thereto in accordance with the terms and conditions of the Escrow Agreement. The Seller and the Purchaser hereby acknowledge that Escrow Agent: (i) is legal counsel to the Purchaser; (ii) has explained to each of it the potential conflicts arising from having legal counsel to the Purchaser serve as the Escrow Agent; and (iii) has advised each of them to seek independent counsel to review the terms of this Agreement and the Escrow Agreement. The Purchaser and the Seller hereby expressly acknowledge their appointment of Escrow Agent to serve as the escrow agent in accordance with the terms and conditions of the Escrow Agreement. ---|---|--- "
"Exempt Issuance means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company pursuant to any stock or option 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 for services rendered to the Company or approved by the stockholders of the Company, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable for 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, exchange 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, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, provided that such securities are issued as restricted securities (as defined in Rule 144) and do not contain resale registration rights providing for or allowing such securities to be resold until after the thirtieth (30th) Trading Day following the Closing Date, (d) unregistered shares of Common Stock or warrants to independent contractors, consultants and advisors of the Company pursuant to any consulting agreement or similar agreement duly adopted 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 for services rendered to the Company provided that such securities are issued as restricted securities (as defined in Rule 144) and do not contain resale registration rights providing for or allowing such securities to be resold until after the thirtieth (30th) Trading Day following the Closing Date and (e) securities issued for the payment of dividends on preferred shares outstanding on the date hereof to the extent consistent with the Certificate of Designations establishing the terms of such preferred stock in effect on the date hereof (and provided such Certificate of Designation is not amended or otherwise restated following the date hereof)."
"(v) from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Companys principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Closing."
"(a) Subsidiaries. All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1(a). The Company owns, directly or indirectly, the percentage of the capital stock or other equity interests of each Subsidiary as set forth on Schedule 3.1(a), subject only to the Liens indicated on Schedule 3.1(a). 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."
"(k) 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."
"(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."
"(t) Certain Fees. Except as set forth in the Prospectus Supplement, no brokerage or finders fees or commissions are or will be payable by the Company or any Subsidiary 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."
"(u) Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities, will not be or be an Affiliate of, an investment company within the meaning of the Investment Company Act of 1940, as amended. The Company shall conduct its business in a manner so that it will not become an investment company subject to registration under the Investment Company Act of 1940, as amended."
"(ff) Acknowledgement Regarding Purchasers Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding (except for Sections 3.2(e) and 4.14 hereof), it is understood and acknowledged by the Company that: (i) none of the Purchasers has been asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities of the Company, or derivative securities based on securities issued by the Company or to hold the Securities for any specified term; (ii) past or future open market or other transactions by any Purchaser, specifically including, without limitation, Short Sales or derivative transactions, before or after the closing of this or future private placement transactions, may negatively impact the market price of the Companys publicly-traded securities; (iii) any Purchaser, and counter-parties in derivative transactions to which any such Purchaser is a party, directly or indirectly, presently may have a short position in the Common Stock, and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arms length counter-party in any derivative transaction. The Company further understands and acknowledges that (y) one or more Purchasers may engage in hedging activities at various times during the period that the Securities are outstanding, including, without limitation, during the periods that the value of the Warrant Shares deliverable with respect to Securities are being determined, and (z) such hedging activities (if any) could reduce the value of the existing stockholders' equity interests in the Company at and after the time that the hedging activities are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute a breach of any of the Transaction Documents."
"(jj) 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 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."
"(kk) Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in material 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 or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened."
"(nn) No Disqualification Events. With respect to the Warrant and Warrant Shares to be offered and sold hereunder in reliance on Rule 506 under the Securities Act, none of the Company, any of its predecessors, any affiliated issuer, nor, to its knowledge, any director, executive officer, other officer of the Company participating in the offering hereunder, any beneficial owner of 20% or more of the Companys outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with the Company in any capacity at the time of sale (each, an ""Issuer Covered Person"") is subject to any of the ""Bad Actor"" disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a ""Disqualification Event""), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event. The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e), and has furnished to the Purchasers a copy of any disclosures provided thereunder."
"(c)Purchaser Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on the Closing Date it will be,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."
"(g) General Solicitation. Such Purchaser is not purchasing the Warrants as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or, to the knowledge of such Purchaser, any other general solicitation or general advertisement."
"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. 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."
"(a) The Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser 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 Warrant under the Securities Act."
"(c) Certificates evidencing the Warrant Shares shall not contain any legend (including the legend set forth in Section 4.1(b) hereof): (i) while a registration statement covering the resale of such security is effective under the Securities Act, or (ii) following any sale of such Warrant Shares pursuant to Rule 144 (assuming cashless exercise of the Warrants), or (iii) if such Warrant Shares are eligible for sale under Rule 144 (assuming cashless exercise of the Warrants), or (iv) 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 Company shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Warrant Shares, or if such Warrant Shares may be sold under Rule 144 (assuming cashless exercise of the Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission) then such Warrant Shares shall be issued free of all legends. The Company agrees that following such time as such legend is no longer required under this Section 4.1(c), the Company will, no later than the earlier of (i) two Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing Warrant Shares, as applicable, issued with a restrictive legend (such second 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 in this Section 4. Certificates for Warrant Shares 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. As used herein, Standard Settlement Period means the standard settlement period, expressed in a number of Trading Days, on the Companys primary Trading Market with respect to the Common Stock as in effect on the date of delivery of a certificate representing Warrant Shares issued with a restrictive legend."
"(a) From the date hereof until ninety (90) Trading Days after the Closing Date, neither the Company nor any Subsidiary shall issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents at a price below $3.50 per share of Common Stock (Subsequent Placement)."
"(ii) To accept an Offer, in whole or in part, such Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Purchasers receipt of the Offer Notice (the Offer Period), setting forth the portion of such Purchasers Basic Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase (in either case, the Notice of Acceptance). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, that if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the Available Undersubscription Amount), each Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent its deems reasonably necessary."
"(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, the Purchasers shall acquire from the Company, and the Company shall issue to the Purchasers, the number or amount of Offered Securities specified in the Notices of Acceptance, as reduced pursuant to Section 4(o)(iii)(3) above if the Purchasers have so elected, upon the terms and conditions specified in the Offer. Notwithstanding anything to the contrary contained in this Agreement, if the Company does not consummate the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, within twenty (20) Business Days of the expiration of the Offer Period, the Company shall issue to the Purchasers, the number or amount of Offered Securities specified in the Notice of Acceptance, as reduced pursuant to Section 4(o)(iii)(4) above if the Purchasers have so elected, upon the terms and conditions specified in the Offer. The purchase by the Purchasers of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and the Purchasers of a purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to the Purchasers and their respective counsel."
"4.14 Certain 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 pursuant to the initial press release as described in Section 4.4. 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 pursuant to the initial press release as described in Section 4.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in 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 pursuant to the initial press release as described in Section 4.4, (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 or duty not to trade in the securities of the Company to the Company or its Subsidiaries after the issuance of the initial press release as described in Section 4.4. 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."
"5.2 Fees and Expenses. 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; provided however the Company will reimburse a Purchaser for its legal fees and expenses in an amount not to exceed $10,000 The Company shall pay all Transfer Agent fees (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any exercise notice delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Purchasers."
"5.7 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of each Purchaser (other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom such Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred Securities, by the provisions of the Transaction Documents that apply to the Purchasers."
"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."
"5.15 Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law would be adequate."
"5.19 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."
"d. Information. The Buyer and its advisors, if any, have been, and for so long as the Notes 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 requested by the Buyer or its advisors. The Buyer and its advisors, if any, have been, and for so long as the Notes remain outstanding will continue to be, afforded the opportunity to ask questions of the Company. Notwithstanding the foregoing, the Company has not disclosed to the Buyer any material nonpublic information and will not disclose such information unless such information is disclosed to the public prior to or promptly following such disclosure to the Buyer. Neither such inquiries nor any other due diligence investigation conducted by Buyer or any of its advisors or representatives shall modify, amend or affect Buyers right to rely on the Companys representations and warranties contained in Section 3 below. The Buyer understands that its investment in the Securities involves a significant degree of risk. The Buyer is not aware of any facts that may constitute a breach of any of the Companys representations and warranties made herein."
g. Acknowledgment Regarding Buyer Purchase of Securities. The Company acknowledges and agrees that the Buyer is acting solely in the capacity of arms length purchasers with respect to this Agreement and the transactions contemplated hereby. The Company further acknowledges that the Buyer is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement and the transactions contemplated hereby and any statement made by the Buyer or any of its respective representatives or agents in connection with this Agreement and the transactions contemplated hereby is not advice or a recommendation and is merely incidental to the Buyer purchase of the Securities. The Company further represents to the Buyer that the Companys decision to enter into this Agreement has been based solely on the independent evaluation of the Company and its representatives.
"b. Corporate Existence. So long as the Buyer beneficially owns any Notes, 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 Shares is listed for trading on the OTCQB, Nasdaq, Nasdaq SmallCap, NYSE or AMEX."
"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 person that purchases Securities in a private transaction from the Buyer or to any of its affiliates, as that term is defined under the 1933 Act, without the consent of the Company."
"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."
"WHEREAS, on September 28, 2017, the Purchaser and the Company entered into a Warrants Purchase Agreement (the Original Agreement), wherein the Purchaser agreed to purchase from the Company an aggregate of 7,000,000 warrants (the Sponsor Warrants), each Sponsor Warrant entitling the holder to purchase one Share at an exercise price of $11.50 per Share;"
"(ii) The closing of the purchase and sale of the Sponsor Warrants shall take place simultaneously with the closing of the Public Offering (the Closing Date). The closing of the purchase and sale of the Sponsor Warrants shall take place at the offices of EG&S, 1345 Avenue of the Americas, New York, New York, 10105, or such other place as may be agreed upon by the parties hereto."
"A.Organization and Corporate Power. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and is qualified to do business in every jurisdiction in which the failure to so qualify would reasonably be expected to have a material adverse effect on the financial condition, operating results or assets of the Company. The Company possesses all requisite corporate power and authority necessary to carry out the transactions contemplated by this Agreement and the Warrant Agreement."
"(i) The execution, delivery and performance of this Agreement and the Sponsor Warrants have been duly authorized by the Company. This Agreement constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms. Upon issuance in accordance with, and payment pursuant to, the terms of the Warrant Agreement and this Agreement, the Sponsor Warrants will constitute valid and binding obligations of the Company, enforceable in accordance with their terms."
"(ii) The execution and delivery by the Company of this Agreement and the Sponsor Warrants, the issuance and sale of the Sponsor Warrants, the issuance of the Shares upon exercise of the Sponsor Warrants and the fulfillment of, and compliance with, the respective terms hereof and thereof by the Company, do not and will not as of the Closing Date (a)conflict with or result in a breach of the terms, conditions or provisions of, (b)constitute a default under, (c)result in the creation of any lien, security interest, charge or encumbrance upon the Companys capital stock or assets under, (d)result in a violation of, or (e)require any authorization, consent, approval, exemption or other action by or notice or declaration to, or filing with, any court or administrative or governmental body or agency pursuant to the certificate of incorporation or the bylaws of the Company (in effect on the date hereof or as may be amended prior to completion of the contemplated Public Offering), or any material law, statute, rule or regulation to which the Company is subject, or any agreement, order, judgment or decree to which the Company is subject, except for any filings required after the date hereof under federal or state securities laws."
"(v) The Purchaser 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 which have been requested by the Purchaser. The Purchaser has been afforded the opportunity to ask questions of the executive officers and directors of the Company. The Purchaser understands that its investment in the Securities involves a high degree of risk and it has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to the acquisition of the Securities."
"(vii) The Purchaser understands that: (a)the Securities have not been and are not being registered under the Securities Act or any state securities laws, and may not be offered for sale, sold, assigned or transferred unless (1)subsequently registered thereunder or (2)sold in reliance on an exemption therefrom; and (b)except as specifically set forth in the Registration Rights Agreement, neither the Company nor any other person is under any obligation to register the Securities under the Securities Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder. In this regard, the Purchaser understands that the Securities and Exchange Commission has taken the position that promoters or affiliates of a blank check company and their transferees, both before and after an initial business combination, are deemed to be underwriters under the Securities Act when reselling the securities of a blank check company. Based on that position, Rule144 adopted pursuant to the Securities Act would not be available for resale transactions of the Securities despite technical compliance with the certain requirements of such Rule, and the Securities can be resold only through a registered offering or in reliance upon another exemption from the registration requirements of the Securities Act."
"(viii) The Purchaser has such knowledge and experience in financial and business matters, knowledge of the high degree of risk associated with investments in the securities of companies in the development stage such as the Company, is capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risk of an investment in the Securities in the amount contemplated hereunder for an indefinite period of time. The Purchaser has adequate means of providing for its current financial needs and contingencies and will have no current or anticipated future needs for liquidity which would be jeopardized by the investment in the Securities. The Purchaser can afford a complete loss of its investments in the Securities."
"Section6\. Termination.This Agreement may be terminated at any time after December 31, 2017 upon the election by either the Company or a Purchaser entitled to purchase a majority of the Sponsor Warrants upon written notice to the other parties if the closing of the Public Offering does not occur prior to such date."
"B.Severability. Whenever possible, each provision of this Agreement shall 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 prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement."
"(a)Designation of Shares. The Company shall adopt and file with the Secretary of State of the State of Florida, on or before the Closing Date (as defined below), Articles of Amendment to the Articles of Incorporation of the Company Designating the Series B Convertible Preferred Stock of the Company in the form of Exhibit A attached to this Agreement (the Certificate of Designation)."
"(a)Closing. The Closing of the sale and purchase of the Units under this Agreement (the Closing) shall take place remotely at 10:00 a.m. on the date hereof by the exchange of documents and signatures, or at such other time or place as the Company and the Purchasers purchasing a majority of the Units to be sold at the Closing mutually agree (the date of the Closing is hereinafter referred to as the Closing Date)."
"(d)Due Authorization. All corporate actions on the part of the Company necessary for (i) the authorization, execution and delivery of, and the performance of all obligations of the Company under, this Agreement, including, without limitation, the filing of the Certificate of Designation, (ii) the authorization, issuance, and delivery of the Shares and Warrants, and the authorization of the Conversion Shares and Warrant Shares, have been taken, and this Agreement constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its respective terms."
"(h)Litigation. There is no material action, suit, proceeding, claim, arbitration or investigation pending or, to the Companys knowledge, threatened: (i) against the Company, its Subsidiaries, their activities, properties or assets, (ii) any officer, director or employee of the Company or any of its Subsidiaries in connection with such officers, directors or employees relationship with, or actions taken on behalf of, the Company or its Subsidiaries, or (iii) that seeks to prevent, enjoin, alter, challenge or delay the transactions contemplated by this Agreement. Neither the Company nor any of its Subsidiaries is a party to or subject to the provisions of, any order, writ, injunction, judgment or decree of any court or government agency or instrumentality. The Company and its Subsidiaries have, to the Companys knowledge, in all material respects, complied with all laws, regulations and orders applicable to their business, and have all material permits and licenses required thereby."
"(ii)Neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or employs any member of a union. No executive officer (as defined in Rule 501(f) of the Securities Act) of the Company has notified the Company that such officer intends to leave the Company or otherwise terminate such officers employment with the Company. No executive officer of the Company, to the knowledge of the Company, is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement, non- competition agreement, or any other contract or agreement or any restrictive covenant, and the continued employment of each such executive officer does not subject the Company to any liability with respect to any of the foregoing matters."
"(r)Transactions with Affiliates. Except as set forth in the SEC Documents, none of the officers, directors or employees of the Company or any of its Subsidiaries has entered into any transaction with the Company or any of its Subsidiaries that would be or will be required to be disclosed pursuant to Item 404(a) of Regulation S-K of the SEC."
"(s)General Solicitation. Neither the Company, nor any of its affiliates, nor any other person or entity authorized by the Company to act on its behalf has engaged in a general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) of investors with respect to offers or sales of the Units."
"(aa)Brokers. Except as set forth in the Disclosure Letter or the SEC Documents, the Company has not engaged any brokers, finders or agents, or incurred, or will incur, directly or indirectly, any liability for brokerage or finders fees or agents commissions or any similar charges in connection with this Agreement and the transactions contemplated hereby."
"(g)Receipt of Information. The Purchaser has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the issuance and sale of the Shares, the business, properties, prospects, management and financial condition of the Company and to obtain any additional information requested and has received and considered all information it deems relevant to make an informed decision to purchase the Units. Neither such inquiries nor any other investigation conducted by or on behalf of such Purchaser or its representatives or counsel shall modify, amend or affect the Purchasers right to rely on the truth, accuracy and completeness of such information and the Companys representations and warranties contained in this Agreement."
"(e)No Statute or Rule Challenging Transaction. No statute, rule, regulation, executive order, decree, ruling, injunction, action, proceeding or interpretation shall have been enacted, entered, promulgated, endorsed or adopted by any court or governmental authority of competent jurisdiction or any self-regulatory organization or the staff of any of the foregoing, having authority over the matters contemplated hereby which questions the validity of, or challenges or prohibits the consummation of, any of the transactions contemplated by this Agreement."
"(b)Governing Law; Submission to Jurisdiction. This Agreement will be governed by and construed and enforced under the internal laws of the State of Florida, without reference to principles of conflict of laws or choice of laws. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY. The Company hereby irrevocably and unconditionally submits, for itself and its property to the exclusive jurisdiction of any Florida state court or federal court of the United States sitting in the State of Florida, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement."
"(g)Amendments and Waivers. This Agreement may be amended and the observance of any term of this Agreement may be waived only with the written consent of the Company and the Purchasers holding at least a majority of the total aggregate number of the Units then held by the Purchasers; provided, however, any amendment to this Agreement that disproportionately adversely affects any Purchaser in any material respect shall require the prior written consent of such Purchaser. Any amendment effected in accordance with this Section 9(g) will be binding upon the Company, each Purchaser and their respective successors and permitted assigns."
" | (viii) | No person or firm has, or will have, any right, interest or valid claim against the Corporation for any commission, fee or other compensation in connection with the sale of the Shares herein as a finder or broker or in any similar capacity as a result of any act or omission by the Corporation and/or Seller or anyone acting on behalf of the Corporation and/or Seller; ---|---|--- "
" | (ii) | The execution, delivery and performance of this Agreement is in compliance with and does not conflict with or result in a breach of or in violation of the terms, conditions or provisions of any agreement, mortgage, lease or other instrument or indenture to which Purchaser is a party or by which Purchaser is bound; ---|---|--- "
"10. SEVERABILITY. In the event that any term, covenant, condition, or other provision contained herein is held to be invalid, void or otherwise unenforceable by any court of competent jurisdiction, the invalidity of any such term, covenant, condition, provision or Agreement shall in no way affect any other term, covenant, condition or provision or Agreement contained herein, which shall remain in full force and effect."
"13. GENDER AND NUMBER; SECTION HEADINGS. Words importing a particular gender mean and include the other gender and words importing a singular number mean and include the plural number and vice versa, unless the context clearly indicated to the contrary. The section and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement."
"a. Closing Date. The date and time of the first issuance and sale of the Note pursuant to this Agreement (the Closing Date) shall be on or about October 2, 2017, or such other mutually agreed upon time. The closing of the transactions contemplated by this Agreement (the Closing) shall occur on the Closing Date at such location as may be agreed to by the parties. The Closing of each of back end notes shall be on or before the dates specified in the relevant Buyer Notes. The Company may reject the closing of the back end financing by giving the Buyer written notice at least 30 days prior to the 6 month anniversary of the Notes of its intent to reject the funding of each of the Buyer Notes. In such base both the Buyer Notes and the back end notes shall be terminated."
"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. --- "
"f. Absence of Litigation. Except as disclosed in the Companys Periodic Report filings with the SEC, there is no action, suit, claim, proceeding, inquiry or investigation before or by any court, public board, government agency, self- regulatory organization or body pending or, to the knowledge of the Company or any of its subsidiaries, threatened against or affecting the Company or any of its subsidiaries, or their officers or directors in their capacity as such, that could have a material adverse effect. Schedule 3(f) contains a complete list and summary description of any pending or, to the knowledge of the Company, threatened proceeding against or affecting the Company or any of its subsidiaries, without regard to whether it would have a material adverse effect. The Company and its subsidiaries are unaware of any facts or circumstances which might give rise to any of the foregoing."
g. Acknowledgment Regarding Buyer Purchase of Securities. The Company acknowledges and agrees that the Buyer is acting solely in the capacity of arms length purchasers with respect to this Agreement and the transactions contemplated hereby. The Company further acknowledges that the Buyer is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement and the transactions contemplated hereby and any statement made by the Buyer or any of its respective representatives or agents in connection with this Agreement and the transactions contemplated hereby is not advice or a recommendation and is merely incidental to the Buyer purchase of the Securities. The Company further represents to the Buyer that the Companys decision to enter into this Agreement has been based solely on the independent evaluation of the Company and its representatives.
"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 MARKETPLACE or any equivalent replacement market, the Nasdaq stock market (Nasdaq) or the New York Stock Exchange (NYSE) 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 MARKETPLACE 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. No other Convertible Securities. For a period of 90 days following the closing and sale of the Note, the Company shall not consummate the sale of any other convertible securities unless the net proceeds to be received by the Company from the sale of such convertible security, in one single closing, is sufficient to permit the Company to redeem the Note being sold herein along with any prepay premiums, and provided that such redemption occurs with 5 business days of the closing of the sale of the convertible note. In addition, during the 90-day period, the Company shall not restructure any other notes to add a convertibility feature. If the Company violates this provision then both the conversion discount set forth in Section 2(a) of the Note and the prepay premium set forth in Section 2(c) of the Note shall be increased by 15%."
"h. S1 Payments. In the event the Company is able to raise amounts in excess of $1,500,000 pursuant to the S1 registration filed on August 31, 2017, then the Company covenants that, at the election of the Buyer, it shall use an amount of up to 33% of the net proceeds to the Company (the amount being specified by the Buyer) to prepay or retire the Note. Such payment will be made within 5 business days of request by Buyer. If the Company violates this provision then both the conversion discount set forth in Section 2(a) of the Note and the prepay premium set forth in Section 2(c) of the Note shall be increased by 15%."
"i. Piggy Back Registration. The Buyer shall be granted piggyback registration rights for the 66,000 restricted shares being issued to Buyer as well as for the shares convertible under the Note, provided that the current S1 registration filed on August 31, 2017 shall be exempt from the piggyback rights held by the Buyer."
"WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to an effective registration statement under 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."
"(iii) if settlement of the Shares is not occurring via DVP in accordance with the last sentence of Section 2.1, a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver on an expedited basis via The Depository Trust Company (the DTC) Deposit and Withdrawal at Custodian system (DWAC) Shares equal to such Purchasers Subscription Amount divided by the Per Share Purchase Price, registered in the name of such Purchaser;"
"(iv) a Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to 50% of such Purchasers Shares, with an exercise price equal to $2.85 per share of Common Stock underlying the Warrant, subject to adjustment therein (such Warrant certificate may be delivered within three Trading Days of the Closing Date); and"
"(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);"
"(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 Securities and the consummation by it of the transactions contemplated hereby and thereby do not and will not (i) conflict with or violate any provision of the 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."
"(m) Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all applicable 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, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, individually or in the aggregate, have a Material Adverse Effect."
"(q) Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but not limited to, directors and officers insurance coverage at least equal to the aggregate Subscription Amount. Neither the Company nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost."
"(r) Transactions With Affiliates and Employees. Except as set forth in Schedule 3.1(r), 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 agreements under any stock option plan of the Company."
"(dd) Accountants. The Companys independent registered public accounting firm is Baker Tilly Virchow Krause, LLP. To the knowledge and belief of the Company, such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its opinion with respect to the financial statements to be included in the Companys Annual Report for the fiscal year ending December 31, 2017."
"(kk) 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 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."
"3.2 Representations and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein in which case they shall be accurate as of such date):"
"4.10 Listing of Common Stock. For so long as the Warrant remains outstanding and exercisable, the Company hereby agrees to use commercially reasonable efforts to maintain the listing or quotation of the Common Stock on the Trading Market on which it is currently listed, and the Company shall apply to list or quote all of the Shares and Warrant Shares on such Trading Market and promptly secure the listing of all of the Shares and Warrant Shares on such Trading Market. The Company further agrees, if the Company applies to have the Common Stock traded on any other Trading Market, it will then include in such application all of the Shares and Warrant Shares, and will take such other action as is necessary to cause all of the Shares and Warrant Shares to be listed or quoted on such other Trading Market as promptly as possible. The Company will then take all action reasonably necessary to continue the listing and trading of its Common Stock on a Trading Market and will comply in all respects with the Companys reporting, filing and other obligations under the bylaws or rules of the Trading Market. For so long as the Company maintains a listing or quotation of the Common Stock on a Trading Market, it agrees to maintain the eligibility of the Common Stock for electronic transfer through the DTC or another established clearing corporation, including, without limitation, by timely payment of fees to the DTC or such other established clearing corporation in connection with such electronic transfer."
"(b) From the date hereof until the one year anniversary of 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 exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock or (ii) enters into any agreement, including, but not limited to, an equity line of credit, whereby the Company may issue securities at a future determined price. Any Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages."
"5.7 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of each Purchaser (other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom such Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred Securities, by the provisions of the Transaction Documents that apply to the Purchasers."
"5.17 Independent Nature of Purchasers Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently protect and enforce its rights including, without limitation, the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any proceeding for such purpose. Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. For reasons of administrative convenience only, each Purchaser and its respective counsel have chosen to communicate with the Company through the legal counsel of the Placement Agent. The legal counsel of the Placement Agent does not represent any of the Purchasers and only represents the Placement Agent. The Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained in this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and the Purchasers collectively and not between and among the Purchasers."
"(a) Company is a corporation duly organized, validly existing and in good standing under the laws of the state its incorporation and has the requisite corporate power and authority to enter into and perform its obligations under this Agreement without the consent approval or authorization of or obligation to notify any person, entity or governmental agency which consent has not been obtained."
"(c) The Securities to be received by Purchaser will be acquired by Purchaser for investment only for Purchasers own account, not as a nominee or agent, and not with a view to the sale or distribution of any part thereof in violation of applicable U.S. federal or state or foreign securities laws. Purchaser has no current intention of selling, granting participation in or otherwise distributing the Securities in violation of applicable U.S. federal or state or foreign securities laws. Purchaser does not have any contract, undertaking, agreement or arrangement with any person or entity to sell, transfer or grant participation to such person or entity, or to any third person or entity, with respect to any of the Securities, in each case, in violation of applicable U.S. federal or state or foreign securities laws."
"(a) The Company is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, and has the requisite corporate power and authority to own its properties and to carry on its business as now being conducted. The Company is duly qualified as a foreign corporation 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 could not reasonably be expected to have a material adverse effect on any of: (i)the business, properties, assets, operations, results of operations or financial condition of the Company or (ii)the authority or ability of the Company to perform its obligations hereunder."
"(a) Entire Agreement. This Agreement supersede all other prior oral or written agreements between Purchaser, the Company, their affiliates and persons acting on their behalf with respect to the matters discussed herein, and this Agreement 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 Purchaser makes any representation, warranty, covenant or undertaking with respect to such matters."
"(b) Binding Effect; Assignability; Benefit. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors, legal representatives and permitted assigns. Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by any party hereto without the consent of the other party. Nothing in this Agreement is intended to confer on any person other than the parties hereto, and their respective heirs, successors, legal representatives and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement."
(d) Waiver; Amendment; Termination. No provision of this Agreement may be waived except by an instrument in writing executed by the party against whom the waiver is to be effective. No provision of this Agreement may be amended or otherwise modified except by an instrument in writing executed by the parties hereto. This Agreement may be terminated only by an instrument in writing executed by the parties hereto.
"|  | |  | NumberofShares: |  | No less than 221,682 Shares and Name: |  | Terry M. Rich |  | |  | |  | no more than 442,478 Shares Title: |  | Chief Executive Officer |  | |  | |  | | | | | |  | |  | |  | Purchase Price: |  | $2.26 per share, for an aggregate |  | |  | |  | |  | Purchase Price of no less than |  | |  | |  | |  | $501,001.32 and no more than $1,000,000.28 | | | | | | | | ---|---|---|---|---|---|---|---|--- | | | | |  | |  | |  | Address: |  |"
"2.1Closing. On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, up to an aggregate of $53,996,250 of Shares. Each Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchasers Subscription Amount as set forth on the signature page hereto executed by such Purchaser and the Company shall deliver to each Purchaser its respective Shares as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur at the offices of Company Counsel or such other location as the parties shall mutually agree."
"(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) 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);"
"(a)Subsidiaries. All of the significant subsidiaries (as defined in Regulation S-X) of the Company are set forth in the SEC Reports. Except as set forth in the SEC Reports, the Company owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens except for standard blanket security interests from lenders as described in the SEC Reports, 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."
"(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 financial condition 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) and, to the Companys knowledge, 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."
"(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 Securities and the consummation by it of the transactions contemplated hereby and thereby do not and will not (i) conflict with or violate any provision of the 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, 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 would not have or reasonably be expected to result in a Material Adverse Effect."
"(h)SEC Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the one year preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Registration Statement, Prospectus and the Prospectus Supplement, being collectively referred to herein as the SEC Reports) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in all material respects in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (GAAP), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements do not contain all items required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments."
"(k)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 would 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 current 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 material 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."
"(t)Certain Fees. Except as set forth in the Prospectus Supplement, no brokerage or finders fees or commissions are or will be payable by the Company or any Subsidiary 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."
"(y)Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or counsel with any information that it believes constitutes or might constitute material, non-public information which is not otherwise disclosed in the Prospectus Supplement. The Company understands and confirms that the Purchasers will rely on the foregoing representation in effecting transactions in securities of the Company. All of the disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company and its Subsidiaries, their respective businesses and the transactions contemplated hereby, is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. The Company acknowledges and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof."
"(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. The SEC Reports set forth all outstanding secured and 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 $200,000 (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. Except as set forth in the SEC Reports, neither the Company nor any Subsidiary is in default with respect to any Indebtedness."
"(ff)Acknowledgement Regarding Purchasers Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding (except for Sections 3.2(f) and 4.14 hereof), it is understood and acknowledged by the Company that: (i) none of the Purchasers has been asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities of the Company, or derivative securities based on securities issued by the Company or to hold the Securities for any specified term; (ii) past or future open market or other transactions by any Purchaser, specifically including, without limitation, Short Sales or derivative transactions, before or after the closing of this or future private placement transactions, may negatively impact the market price of the Companys publicly-traded securities; (iii) any Purchaser, and counter-parties in derivative transactions to which any such Purchaser is a party, directly or indirectly, presently may have a short position in the Common Stock, and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arms length counter-party in any derivative transaction. The Company further understands and acknowledges that (y) one or more Purchasers may engage in hedging activities at various times during the period that the Securities are outstanding, and (z) such hedging activities (if any) could reduce the value of the existing stockholders' equity interests in the Company at and after the time that the hedging activities are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute a breach of any of the Transaction Documents."
"(d)Experience of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the Securities and, at the present time, is able to afford a complete loss of such investment."
(g)Validity. The execution and delivery of the Transaction Documents to which such Purchaser is a party and the consummation by it of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary action on the part of such Purchaser and no further consent or authorization of such Purchaser or its members (or shareholders) is required.
"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 transaction contemplated hereby."
"4.7Use 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."
"5.9Governing Law. 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. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan 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 under Section 4.8, 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."
"5.12Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable."
"b) Form of Payment. On the Closing Date (i) the Purchaser shall pay the Purchase Price by wire transfer of immediately available funds to the Company, in accordance with the Company's written wiring instructions, simultaneously with delivery of the Note, and (ii) the Company shall deliver such Note duly executed on behalf of the Company to the Purchaser, simultaneously with delivery of such Purchase Price."
"c) Reliance on Exemptions. The Purchaser 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 Purchaser's compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of the Purchaser to acquire the Securities."
"t) Title to Property. The Company and its Subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them which is material to the business of the Company and its Subsidiaries, in each case free and clear of all liens, encumbrances and defects except such as are described in Schedule 3(t) or such as would not have a Material Adverse Effect. Any real property and facilities held under lease by the Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as would not have a Material Adverse Effect."
"v) Internal Accounting Controls. Except as disclosed in the SEC Documents, the Company and each of its Subsidiaries maintain a system of internal accounting controls sufficient, in the judgment of the Company's board of directors, to provide reasonable assurance that (i) transactions are executed in accordance with management's general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management's 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 differences."
"w) 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 Subsidiary has, in the course of his actions for, or on behalf of, the Company, used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or domestic government official or employee."
"x) Solvency. Except as disclosed in the SEC Documents, the Company (after giving effect to the transactions contemplated by this Agreement) is solvent (i.e., its assets have a fair market value in excess of the amount required to pay its probable liabilities on its existing debts as they become absolute and matured) and currently the Company has no information that would lead it to reasonably conclude that the Company would not, after giving effect to the transaction contemplated by this Agreement, have the ability to, nor does it intend to take any action that would impair its ability to, pay its debts from time to time incurred in connection therewith as such debts mature."
"y) No Investment Company. The Company is not, and upon the issuance and sale of the Securities as contemplated by this Agreement will not be, an ""investment company"" required to be registered under the Investment Company Act of 1940 (an ""Investment Company""). The Company is not controlled by an Investment Company."
g) 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.
"h) Securities Laws Disclosure; Publicity. The Company shall comply with applicable securities laws by filing a Current Report on Form 8-K, within four (4) Trading Days following the date hereof, disclosing all the material terms of the transactions contemplated hereby, if the Company deems the transactions contemplated hereby to constitute material non-public information. The Company and Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor Purchaser shall issue any such press release or otherwise make any such public statement without the prior consent of the Company, with respect to any press release of any Purchaser, or without the prior consent of Purchaser, with respect to any press release of the Company, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication."
"n) Future Financings: From the date hereof until such time as the Purchaser no longer holds any of the Securities, in the event the Company issues or sells any shares of Common Stock or securities directly or indirectly convertible into or exercisable for Common Stock (""Common Stock Equivalents"") or amends the transaction documents relating to any sale or issuance of Common Stock or Common Stock Equivalents, if the Purchaser reasonably believes that the terms and conditions thereunder are more favorable to such investors as the terms and conditions granted under the Transaction Documents, upon notice to the Company by such Purchaser, the Transaction Documents shall be deemed automatically amended so as to give the Purchasers the benefit of such more favorable terms or conditions. Promptly following a request to the Company the Company shall provide Purchaser with all executed transaction documents relating to any such sale or issue of Common Stock or Common Stock Equivalents. Company shall deliver acknowledgment of such automatic amendment to the Transaction Documents to Purchaser in form and substance reasonably satisfactory to the Purchaser ( the ""Acknowledgment"") within three (3) business days of Company's receipt of request from Purchaser (the ""Deadline""), provided that Company's failure to timely provide the Acknowledgement shall not affect the automatic amendments contemplated hereby. If the Acknowledgement is not delivered by the Deadline, Company shall pay to the Purchaser $1000.00 per day in cash, for each day beyond the Deadline that the Company fails to deliver such Acknowledgement."
"transferable on the books and records of the Company as and to the extent provided in this Agreement and the Note; (ii) it will not direct its transfer agent not to transfer or delay, impair, and/or hinder its transfer agent in transferring (or issuing)(electronically or in certificated form) any certificate for Conversion Shares to be issued to the Purchaser upon conversion of or otherwise pursuant to the Note as and when required by the Note and this Agreement; and (iii) it will not fail to remove (or direct its transfer agent not to remove or impair, delay, and/or hinder its transfer agent from removing) any restrictive legend (or to withdraw any stop transfer instructions in respect thereof) on any certificate for any Conversion Shares issued to the Purchaser upon conversion of or otherwise pursuant to the Note as and when required by the Note and this Agreement. Nothing in this Section shall affect in any way the Purchaser's obligations and agreement set forth in Section 2(g) hereof to comply with all applicable prospectus delivery requirements, if any, upon re-sale of the Securities. If the Purchaser provides the Company with (i) an opinion of counsel in form, substance and scope customary for opinions in comparable transactions, to the effect that a public sale or transfer of such Securities may be made without registration under the 1933 Act and such sale or transfer is effected or (ii) the Purchaser provides reasonable assurances that the Securities can be sold pursuant to Rule 144, the Company shall permit the transfer, and, in the case of the Conversion Shares, promptly instruct its transfer agent to issue one or more certificates, free from restrictive legend, in such name and in such denominations as specified by the Purchaser. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Purchaser, by vitiating the intent and purpose of the transactions contemplated hereby. Accordingly, the Company acknowledges that the remedy at law for a breach of its obligations under this Section 5 may be inadequate and agrees, in the event of a breach or threatened breach by the Company of the provisions of this Section, that the Purchaser shall be entitled, in addition to all other available remedies, to an injunction restraining any breach and requiring immediate transfer, without the necessity of showing economic loss and without any bond or other security being required."
"6. Injunction Posting of Bond. In the event the Purchaser shall elect to convert the Note or any parts thereof, the Company may not refuse conversion or exercise based on any claim that Purchaser or anyone associated or affiliated with Purchaser has been engaged in any violation of law, or for any other reason. In connection with any injunction sought or attempted by the Company, the Company shall be required to post a bond at least equal to the greater of either: (i) the outstanding principal amount of the Note; and (ii) the market value of the Conversion Shares sought to be converted, exercised or issued, based on the sale price per share of Common Stock on the principal market on which it is traded."
"8. Conditions to the Company's Obligation to Sell. The obligation of the Company hereunder to issue and sell the Note to the Purchaser at the Closing is subject to the satisfaction, at or before the Closing Date of each of the following conditions thereto, provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole discretion:"
"d) The representations and warranties of the Company 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 such time (except for representations and warranties that speak as of a specific date) and the Company 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 Company at or prior to the Closing Date. The Purchaser shall have received a certificate or certificates, executed by the chief executive officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Purchaser including, but not limited to certificates with respect to the Company's Certificate of Incorporation, By-laws, incumbency, and Board of Directors' resolutions relating to the transactions contemplated hereby."
"f) Usury. To the extent it may lawfully do so, the Company hereby agrees not to insist upon or plead or in any manner whatsoever claim, and will resist any and all efforts to be compelled to take the benefit or advantage of, usury laws wherever enacted, now or at any time hereafter in force, in connection with any claim, action or proceeding that may be brought by the Purchaser in order to enforce any right or remedy under the Note. Notwithstanding any provision to the contrary contained in herein or under the Note, it is expressly agreed and provided that the total liability of the Company under the Note for payments in the nature of interest shall not exceed the maximum lawful rate authorized under applicable law (the ""Maximum Rate""), and, without limiting the foregoing, in no event shall any rate of interest or default interest, or both of them, when aggregated with any other sums in the nature of interest that the Company may be obligated to pay under the Note or herein exceed such Maximum Rate. It is agreed that if the maximum contract rate of interest allowed by law and applicable to the Note is increased or decreased by statute or any official governmental action subsequent to the date hereof, the new maximum contract rate of interest allowed by law will be the Maximum Rate applicable to the Note from the effective date forward, unless such application is precluded by applicable law. If under any circumstances whatsoever, interest in excess of the Maximum Rate is paid by the Company to the Purchaser with respect to indebtedness evidenced by the Note, such excess shall be applied by the Purchaser to the unpaid principal balance of any such indebtedness or be refunded to the Company, the manner of handling such excess to be at the Purchaser's election."
"i) 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 Purchaser 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 Purchaser."
| | | | | | ---|---|---|---|---|---|--- |  | |  |  | PAGE |  1. |  | Definitions |  |  | 1 |  | | 2. |  | Purchase and Sale of the Shares |  |  | 3 |  | | 3. |  | Representations and Warranties of the Company |  |  | 5 |  | | 4. |  | Representations and Warranties of the Purchaser |  |  | 12 |  | | 5. |  | Conditions of the Companys Obligations at the Closing |  |  | 14 |  | | 6. |  | Conditions of the Purchasers Obligations to Initiate Wire Transfer |  |  | 14 |  | | 7. |  | Conditions of the Purchasers Obligations at the Closing |  |  | 14 |  | | 8. |  | Indemnification |  |  | 15 |  | | 9. |  | Termination |  |  | 16 |  | | 10. |  | Miscellaneous |  |  | 16 |  | EXHIBITA. Form of Opinion of K&L Gates LLP |  | | | * * *
"THIS STOCK PURCHASE AGREEMENT (this Agreement) is made as of October 11, 2017, by and among ACM Research, Inc., a Delaware corporation (the Company), Xunxin (Shanghai) Capital Co., Limited (Sino IC Shanghai), Xinxin (Hongkong) Capital Co., Limited (the Purchaser), and, solely for the purpose of Section2(c)(iii), David H. Wang (Wang). Certain capitalized terms used in this Agreement are defined in Section1."
"(ii) Delivery of and payment for the Shares shall be made at 10:00 a.m., Eastern daylight saving time, on the closing date of the IPO (the Closing Date). Delivery of the Shares shall be made to the Purchaser against payment by or on behalf of the Purchaser of the Purchase Price therefor by transmission of a wire transfer to a bank account designated by the Company, provided that any payment by Wang pursuant to Section2(c)(iii) may be made in cash or by check, as acceptable to the Company. Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligation of the Purchaser under this Agreement. In furtherance of the foregoing with respect to the delivery of and payment for the Shares, the parties hereto agree as follows:"
"(A) The Company shall provide the Purchaser with written notice stating (1)the date (the Expected Pricing Date) on which the UA is expected to be signed and (2)whether the Company, in good faith and based on advice of Roth Capital, as representative of the several underwriters of the IPO, believes there is a reasonable possibility the IPO Price will be less than $8.40. The Company shall use commercially reasonable efforts to deliver such notice at least five Business Days in advance of the Expected Pricing Date, but in no event shall such notice be delivered later than the fourth Business Day before the Expected Pricing Date. If such notice states that there is a possibility the IPO Price will be less than $8.40, then"
"(iii) If and only if the Purchase Price per ClassA Share is equal to $10.50, then the Purchase Price payable by the Purchaser pursuant to this Agreement shall be paid as follows: (A)$8,750,000 by the Purchaser and (B)$7 by Wang, on behalf of the Purchaser, provided that the Purchaser shall have no obligation to pay or reimburse Wang for such amount."
"(i) No labor disturbance by or dispute with the employees of the Company or any of the Subsidiaries exists or, to the knowledge of the Company, is imminent that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of the Subsidiaries is in violation of or has received notice of any violation with respect to any U.S. federal or state or foreign law relating to discrimination in the hiring, promotion or pay of employees, nor any applicable U.S. federal or state or foreign wage and hour laws, the violation of any of which could reasonably be expected to have a Material Adverse Effect."
"(ii) The board of directors of the Company has adopted and approved a form of Confidentiality, Non-Competition and Intellectual Property Rights Agreement for execution by employees of the Company and its subsidiaries in the Peoples Republic of China, a true and correct copy of which form has been provided to the Purchaser. Such board has directed management of the Company to seek to enter into, by March31, 2018, agreements substantially in such form with all the Companys employees working in the Peoples Republic of China, except any such employee with whom the Company has previously entered into a similar agreement that continues to be in effect. The Company and the Chief Executive Officer and President of the Company will enter into an agreement in such form by no later than October12, 2017."
"(a) Authority. The Purchaser has all requisite power and authority to execute, deliver and perform its obligations under the Lock-Up Agreement and each of the Transaction Agreements. The Lock-Up Agreement and each of the Transaction Agreements has been duly and validly authorized, executed and delivered by the Purchaser and, when executed and delivered by the Company, will constitute a valid and legally binding obligation of the Purchaser, enforceable in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and any other laws of general application affecting enforcement of creditors rights generally and as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies."
"(c) Corporate Proceedings. All corporate proceedings and other legal matters incidental to the authorization, form and validity of this Agreement and all other legal matters relating to this Agreement and the transactions contemplated by this Agreement, including the filing of the Restated Certificate of Incorporation of ACM Research, Inc. (in the form filed with the SEC by the Company as"
"(a) Indemnity. The Company by this Agreement agrees to indemnify, defend and hold harmless the Purchaser, its Affiliates and each of their respective, directors, officers, employees, shareholders, representatives and agents (Indemnified Parties) from, against and in respect of any damages, losses, charges, liabilities, claims demands, actions, suits, proceedings, payments, judgments, settlements, assessments, deficiencies, interest and costs and expenses (Losses) imposed on, sustained, incurred or suffered by or asserted against any of the Indemnified Parties (whether in respect of third party claims, claims between the parties to this Agreement, or otherwise) directly or indirectly relating to or arising out of any breach by the Company of any of representations, warranty or agreement made by it in this Agreement. The indemnity set forth in this Section8 will not be prejudiced, adversely affected or deemed waived by:"
" | (iii) | any other act or thing that may be done by or on behalf of any Indemnified Party in connection with this Agreement and that might, apart from this clause, prejudice or adversely affect such rights or remedies. ---|---|--- The Company further agrees to indemnify each of the Indemnified Parties against any Losses incurred by such Indemnified Party related to or arising from efforts to enforce or protect its rights under this Agreement or from the exercise of its rights or powers consequent upon or arising out of any breach of this Agreement by the Company. The remedies set forth in this Section8 shall be without prejudice to all other rights and remedies that an Indemnified Party may have under applicable law and shall not be the sole and exclusive remedy of any Indemnified Party for any Loss suffered under this Agreement. Each Indemnified Party shall be entitled to pursue any remedy that is available to it under applicable law."
"9\. Termination. This Agreement shall terminate and be of no more force or effect upon the earliest to occur, if any, of: (a)the delivery by the Company or the Purchaser to each of the parties hereto, at any time before the Company files the Draft S-1 Amendment with the SEC under the Securities Act, of a notice to the effect that this Agreement is being terminated, (b)the execution of the UA, if the Purchaser has elected to terminate in accordance with Section2(a)(ii), (c)the delivery by the Company of notice to the Purchaser pursuant to Section3(a)(iv), (d)if the Company fails to satisfy any of the conditions set forth in Section6, the delivery by the Purchaser to the Company, at any time between 8 p.m., Pacific time, on the date of the UA and 8 p.m., Pacific time, on the first day on which ClassA Shares trade on the Nasdaq Global Market, of notice to the effect that the Purchaser has elected to terminate as the result of such failure, (e)the filing by the Company with the SEC of a request for withdrawal of the Registration Statement, (f)June 30, 2018, if the IPO has not consummated by such date, and (g)the written consent of each of the parties to this Agreement."
"(a) Governing Law; Forum and Remedies. The internal laws of the State of Delaware, irrespective of its conflicts of law principles, shall govern the validity of this Agreement, the construction of its terms, and the interpretation and enforcement of the rights and duties of the parties to this Agreement. The parties to this Agreement by this Agreement irrevocably submit to the exclusive jurisdiction of first, the Court of Chancery in the State of Delaware (and any appellate court thereof) and to the extent such Court of Chancery (or appellate court thereof) lacks jurisdiction over the matter, the Federal courts of the United States of America located in the State of Delaware (or"
"(b) WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SHARES OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL."
"(g) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes."
" | (viii) | this Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. ---|---|--- (m) Waiver of Immunity. With respect to any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated by this Agreement, each party irrevocably waives, to the fullest extent permitted by applicable law, all immunity (whether on the basis of sovereignty or otherwise) from jurisdiction, service of process, attachment (both before and after judgment) and execution to which it might otherwise be entitled, and with respect to any such suit or proceeding, each party waives any such immunity in any court of competent jurisdiction, and will not raise or claim or cause to be pleaded any such immunity at or in respect of any such suit or proceeding, including any immunity pursuant to the U.S. Foreign Sovereign Immunities Act of 1976."
"(n) Other Private Placement. To the extent that the Closing has not occurred and this Agreement has not been terminated in accordance with Section9, 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, including any amendment or supplement to the Stock Purchase Agreement between the Company and Victorious Way Limited."
"Closing Date means the Business 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 obligation to pay the Subscription Amount at such Closing, and (ii) the Companys obligations to deliver the Securities to be issued and sold at such Closing, in each case, have been satisfied or waived."
"Fully-Diluted Basis means the assumption that all options, warrants or other convertible securities or instruments or other rights to acquire Common Stock or any other existing or future classes of capital stock have been exercised or converted, as applicable, in full, regardless of whether any such options, warrants, convertible securities or instruments or other rights are then vested or exercisable or convertible in accordance with their terms."
"(vi)from the date hereof to the Closing Date, trading in securities in the United States generally as reported by Bloomberg L.P. shall not have been suspended or limited, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Closing."
"(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, could 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, prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, (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, or (iv) the occurrence of a Disqualification Event (any of (i), (ii), (iii) or (iv), 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."
"(r)Certain Fees. Except as set forth on Schedule 3.1(r), no brokerage, finders fees, commissions or due diligence fees are or will be payable by the Company or any Subsidiary 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 such fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section 3.1(r) that may be due in connection with the transactions contemplated by the Transaction Documents."
"(s)Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities, will not be or be an Affiliate of, an investment company within the meaning of the Investment Company Act of 1940, as amended. The Company shall conduct its business in a manner so that it will not become an investment company subject to registration under the Investment Company Act of 1940, as amended. The Company is not aware of any person that has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in connection with the sale of any Regulation D Securities."
"(x)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 and those set forth on Schedule 3.1(x), 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."
"(ff) No Disqualification Events. None of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company participating in the offering hereunder, any beneficial owner of 20% or more of the Companys outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with the Company in any capacity at the time of sale (each, an Issuer Covered Person and, together, Issuer Covered Persons) is subject to any of the Bad Actor disqualifications described in Rule 506(d)(l)(i) to (viii) under the Securities Act (a Disqualification Event), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event. The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e), and has furnished to the Purchasers a copy of any disclosures provided thereunder. 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, become a Disqualification Event relating to any Issuer Covered Person."
"(b)Understandings or Arrangements. Such Purchaser understands that the Securities are restricted securities and have not been registered under the Securities Act or any applicable state securities law and is acquiring the Securities as principal for its own account and not with a view to or for distributing or reselling such Securities or any part thereof in violation of the Securities Act or any applicable state securities law, has no present intention of distributing any of such Securities in violation of the Securities Act or any applicable state securities law and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Securities in violation of the Securities Act or any applicable state securities law (this representation and warranty not limiting such Purchasers right to sell the Securities pursuant to a 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."
"(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 converts a Note or exercises any Warrants, it will be either: (i) an accredited investor as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a qualified institutional buyer as defined in Rule 144A(a) under the Securities Act. Such Purchaser is not required to be registered as a broker-dealer under Section 15 of the Exchange Act. Such Purchaser has the authority and is duly and legally qualified to purchase and own the Securities. Such Purchaser is able to bear the risk of such investment for an indefinite period and to afford a complete loss thereof."
"3.3 Reliance. The Company acknowledges and agrees that the representations contained in 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 transaction contemplated hereby."
"(f)DWAC. Commencing after the Closing, in lieu of delivering physical certificates representing the Unlegended Shares, upon request of a Purchaser, so long as the certificates therefor do not bear a legend and the Purchaser is not obligated to return such certificate for the placement of a legend thereon, the Company shall cause its transfer agent to electronically transmit the Unlegended Shares by crediting the account of Purchasers prime broker with the Depository Trust Company through its Deposit Withdrawal At Custodian system, provided that the Companys Common Stock is DTC eligible and the Companys transfer agent participates in the Deposit Withdrawal at Custodian system. Such delivery must be made on or before the Legend Removal Date."
"4.4Conversion and Exercise Procedures. Each of the form of Notice of Conversion attached to the Note and form of Notice of Exercise included in the Warrants sets forth the totality of the procedures required of the Purchasers in order to convert the Note or exercise the Warrant. No additional legal opinion, other information or instructions shall be required of the Purchasers to convert their Note or exercise their Warrants. The Company shall honor conversions of the Note and exercises of the Warrants and shall deliver Underlying Shares in accordance with the terms, conditions and time periods set forth in the Transaction Documents."
"4.12Maintenance of Property and Insurance. Until the End Date, the Company shall keep all of its property, which is necessary or useful to the conduct of its business, in good working order and condition, ordinary wear and tear excepted. Until the End Date, the Company will maintain insurance coverage of the type and not less than the amount in effect as of the Closing Date."
"5.5Amendments: Waivers. No provision of this Agreement nor any other Transaction Document may be waived, modified, supplemented or amended nor consent obtained or approval deemed granted except in a written instrument signed, in the case of an amendment, by the Company and the Purchasers or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreement nor any other Transaction Document shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement thereof, nor shall any delay or omission of any party to exercise any right thereunder in any manner impair the exercise of any such right. Any Purchaser may waive in writing any right or benefit granted to or available to such Purchaser pursuant to the Transaction Documents."
"5.7Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of each Purchaser (other than by merger). Following the Closing, any Purchaser may assign, on ten (10) Business Day prior notice any or all of its rights under this Agreement to any Person to whom such Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound with respect to the transferred Securities by the provisions of the Transaction Documents that apply to the Purchasers and is able to make each and every representation made by Purchasers in this Agreement. No assignment by a Purchaser will be allowed if the result would be an increase in the number of actual or beneficial owners of the assigned securities."
"5.13Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction Document and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may, at any time prior to the Companys performance of such obligations, rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part without prejudice to its future actions and rights; provided, however, that in the case of a rescission of a conversion of a Note or exercise of a Warrant, the applicable Purchaser shall be required to return any shares of Common Stock subject to any such rescinded conversion or exercise notice concurrently with the return to such Purchaser of the aggregate exercise price paid to the Company for such shares and the restoration of such Purchasers right to acquire such shares pursuant to such Purchasers Note or Warrant (including, issuance of a replacement warrant certificate evidencing such restored right)."
"5.16Payment Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document or a Purchaser enforces or exercises its rights 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, 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."
"5.19Construction. 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."
"SECTION 1. Issuance of Securities.On the terms and subject to the conditions contained herein, at the Closing, Purchaser agrees to purchase, and the Company agrees to issue, the Securities at the Purchase Price. On the terms and subject to the conditions contained herein, at the Closing, Purchaser shall deliver the Purchase Price to the Company in immediately available funds by wire transfer to an account designated by the Company. The consummation of the purchase and sale of the Securities hereunder (the Closing) shall take place at a mutually agreed time and on a mutually agreed date on or before January1, 2018 (the Closing Date) following the satisfaction or waiver of the conditions set forth in Sections 4 and 5 below at the offices of the Company."
"(b) The execution, delivery and performance of this Agreement and any other agreements and instruments contemplated hereby to which Purchaser is a party and the fulfillment of and compliance with the respective terms hereof and thereof by Purchaser, do not and will not (i)violate any requirements of any material obligation of Purchaser, or (ii)result in or constitute (with or without the giving of notice, lapse of time or both) any default or event of default under any such material obligation of Purchaser, or give rise to a right of termination of, or accelerate the performance required by, any terms of any such material obligation or (iii)violate any statute, law ordinance, rule, regulation or order of any court or governmental authority or any judgment, order or decree (U.S. federal, state or local or foreign) applicable to Purchaser."
"(c) The Securities to be received by Purchaser will be acquired by Purchaser for investment only for Purchasers own account, not as a nominee or agent, and not with a view to the sale or distribution of any part thereof in violation of applicable U.S. federal or state or foreign securities laws. Purchaser has no current intention of selling, granting participation in or otherwise distributing the Securities in violation of applicable U.S. federal or state or foreign securities laws. Purchaser does not have any contract, undertaking, agreement or arrangement with any person or entity to sell, transfer or grant participation to such person or entity, or to any third person or entity, with respect to any of the Securities, in each case, in violation of applicable U.S. federal or state or foreign securities laws."
"(h) Purchaser understands that no U.S. federal or state or foreign agency has passed upon this investment or upon the Company, or upon the accuracy, validity or completeness of any documentation provided to Purchaser in connection with the transactions contemplated by this Agreement, nor has any such agency made any finding or determination as to this investment."
"(a) The Company is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, and has the requisite corporate power and authority to own its properties and to carry on its business as now being conducted. The Company is duly qualified as a foreign corporation 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 could not reasonably be expected to have a material adverse effect on any of: (i)the business, properties, assets, operations, results of operations or financial condition of the Company or (ii)the authority or ability of the Company to perform its obligations hereunder."
"(b) The Company has full right, capacity and power to execute and deliver this Agreement and any other agreements and instruments contemplated hereby to which the Company is a party, and to perform its obligations hereunder and thereunder. This Agreement and all other agreements and instruments contemplated hereby to which the Company is or will become a party have been (or, when executed, will be) duly executed and delivered by or on behalf of the Company and, assuming due execution by other parties, constitute legal, valid and binding agreements, enforceable against the Company 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."
"(a) Representations and Warranties. The representations and warranties made by Purchaser in Section2 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 Section2 above, in which case, such representations and warranties shall be true and correct without further qualification) as of the date of this Agreement and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct in all material respects as of such specific date)."
"(b) Binding Effect; Assignability; Benefit. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors, legal representatives and permitted assigns. Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by any party hereto without the consent of the other party. Nothing in this Agreement is intended to confer on any person other than the parties hereto, and their respective heirs, successors, legal representatives and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement."
"(g) No Financial Advisor, Placement Agent, Broker or Finder. Each party represents and warrants to the other that it has not engaged any financial advisor, placement agent, broker or finder in connection with the transactions contemplated hereby. Each party shall be responsible for the payment of any fees or commissions, if any, of any financial advisor, placement agent, broker or finder engaged by such party relating to or arising out of the transactions contemplated hereby. Each party shall pay, and hold the other party harmless against, any liability, loss or expense (including, without limitation, attorneys fees and out of pocket expenses) arising in connection with any such claim."
"c. Closing, Payment and Delivery of the Shares. Subject to fulfillment of the conditions set forth in Section6 below, the consummation of the transactions contemplated herein (theClosing) shall take place at the offices of DLA Piper LLP, 4365 Executive Drive, Suite 1100, San Diego, CA 92121 (or remotely via the exchange of documents and signatures) on the Effective Date. Immediately after the issuance of the Warrants and immediately after the Effective Time, Invesco shall cause the Funds to purchase the Shares by making payment to the Company and/or the Companys designee by wire transfer of immediately available funds of the Purchase Price in accordance with the letter of direction delivered by the Company to Invesco in the form set forth in Exhibit B hereto."
"f. General Solicitation. Invesco is not, to Invescos knowledge, purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement."
"76,359,923 are issued and outstanding, (ii)12,768,492 shares of Evofem Series A Preferred Stock, par value $0.001 per share of which 12,618,279 have been issued and are outstanding, (iii)31,034,696 shares of Evofem Series B Preferred Stock, par value $0.001 per share, of which 13,801,318 shares are issued and outstanding, (iv)5,037,784 shares of Company Series C Preferred Stock of which 5,037,784 shares are issued and outstanding, (v)8,660,572 shares of Evofem C-1 Preferred Stock, par value $0.001 per share, of which 8,558,686 shares are issued and outstanding, (vi)80 shares of Evofem Series D Preferred Stock, par value $0.001 per share, of which 75 are issued and outstanding. No shares of capital stock are held in Evofems treasury. All outstanding shares of capital stock of Evofem are duly authorized, validly issued, fully paid and non-assessable and were issued in compliance with all applicable federal and state securities laws. Immediately prior to the Effective Time of the Merger (assuming the Effective Time occurs on December31, 2017 and after giving effect to the conversion of the Company Preferred Stock (other than the Company Series D Preferred Stock) and the exercise of the Warrant as contemplated by the Merger Agreement), Evofems capitalization shall be as set forth on Exhibit E hereto."
"b. Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto. Nothing set forth in this Agreement shall be construed to confer upon or give to any person (including any direct or indirect creditors) any rights or remedies under or by reason of this Agreement or to confer upon or give to any person any rights or remedies"
"B equals the value of the aggregate amount to be distributed to holders of shares of common stock of Evofem in the Merger (as such term is defined in the Merger Agreement) which, solely for the purposes of this Warrant, shall be deemed to be $86,108,822 (subject to adjustment as provided in Section1.12(b) of the Merger Agreement); ---|---|---|--- "
"1.2Payment. At or prior to the Closing, each Purchaser will pay the Purchase Price set forth opposite its name on Exhibit A hereto by wire transfer of immediately available funds in accordance with wire instructions provided by the Company to the Purchasers not later than 5:00 p.m., Eastern time, on the second Business Day immediately preceding the Closing Date. The Company will instruct its transfer agent to credit each Purchaser (in the name of such Purchaser or its nominees in accordance with its delivery instructions) the number of Shares set forth on Exhibit A (and, upon request, will deliver physical stock certificates to the Purchasers representing the Shares) against delivery of the Purchase Price on the Closing Date."
"1.3Closing Date. The closing of the transaction contemplated by this Agreement will take place on October 12, 2017 (the Closing Date) and the closing (the Closing) will be held at the offices of Fenimore, Kay, Harrison & Ford, LLP, 812 San Antonio Street, Suite 600, Austin, Texas 78701 or at such other time and place as shall be agreed upon by the Company and the Purchasers hereunder of a majority in interest of the aggregate Shares."
"(b)Each Subsidiary of the Company is duly incorporated (or organized) and is validly existing as a corporation or other organization (or, in the case of Business First Bank (the Bank), as a Louisiana state banking association) in good standing under the laws of the jurisdiction of its incorporation (or organization), with power and authority to own, lease and operate its properties and conduct its business as disclosed in the SEC Documents. Each Subsidiary is duly qualified as a foreign corporation (or other organization) to do business and is in good standing under the laws of each other jurisdiction in which the nature of the business conducted by it or property owned or leased 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 reasonably be expected to have a Material Adverse Effect. The Company does not own, directly or indirectly, any corporation, association or other entity other than the Subsidiaries listed in Exhibit 21.1 to the Companys most recent Annual Report filed on Form 10-K."
"(b)The Company is not required to obtain any consent, approval, authorization or order of, or make any filing or registration with, any court or governmental agency or any regulatory or self regulatory agency in order for it to execute, deliver or perform any of its obligations under this Agreement in accordance with the terms hereof, or to issue and sell the Shares in accordance with the terms hereof other than such as have been made or obtained, and except for the registration of the Shares under the Securities Act pursuant to the Registration Rights Agreement, any filings required to be made under federal or state securities laws, which filings and/or notifications will be made prior to Closing or if permitted by such laws in the prescribed period after Closing."
"2.8Disclosure Controls and Procedures. Except as disclosed in the SEC Documents, the Company has established and maintains disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) that are effective in all material respects to ensure that material information relating to the Company, including any of its consolidated Subsidiaries, is made known to its chief executive officer and chief financial officer by others within those entities. The Companys certifying officers have evaluated the effectiveness of the Companys disclosure controls and procedures as of the end of the period covered by the most recently filed quarterly or annual periodic report under the Exchange Act (such date, the Evaluation Date). The Company presented in its most recently filed quarterly or annual periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, (i) there have been no significant changes in the Companys internal control over financial reporting (as such term is defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) or, to the Companys knowledge, in other factors that could significantly affect the Companys internal control over financial reporting or (ii) the Company has not been advised of any fraud, whether or not material, that involves management or other employees who have a significant role in the internal controls of the Company and each of the Subsidiaries."
2.15Acknowledgment Regarding Purchasers Purchase of Securities. The Company acknowledges and agrees that each of the Purchasers is acting solely in the capacity of an arms length purchaser with respect to this Agreement and the Transactions. 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 Company) with respect to this Agreement and the Transactions and any advice given by any Purchaser or any of their respective representatives or agents to the Company in connection with this Agreement and the Transactions is merely incidental to such Purchasers purchase of the Shares. The Company further represents to each Purchaser that the Companys decision to enter into this Agreement has been based on the independent evaluation of the Transactions by the Company and its representatives.
"(a)Neither the Company nor any of its Subsidiaries or Affiliates, nor any Person acting on its or their behalf, has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under any circumstances that would require registration of the offer and sale of the Shares under the Securities Act. Assuming the accuracy of the representations and warranties of the Purchasers contained in Article 3 hereof, the issuance of the Shares are exempt from registration under the Securities Act."
"2.23Application of Takeover Protections. The execution and delivery of the Transaction Documents and the consummation of the Transactions will not impose any restriction on any Purchaser, or create in any party (including any current stockholder of the Company) any rights, under any share acquisition, business combination, poison pill (including any distribution under a rights agreement), or other similar anti-takeover provisions under the Companys charter documents or the laws of its state of incorporation."
"2.34No Additional Agreements. Except pursuant to the Companys equity plans as described in the SEC Documents filed prior to the date of this Agreement, the Company has no agreements or understandings (including, without limitation, side letters) with any Purchaser or other Person to purchase shares of Common Stock on terms more favorable to such Person than as set forth herein."
"(b)Since January 1, 2016, no Agency, Loan Investor or Insurer has (A) claimed in writing that the Company or any of its Subsidiaries has violated or has not complied with the applicable underwriting standards with respect to mortgage loans sold by the Company or any of its Subsidiaries to a Loan Investor or Agency, or with respect to any sale of mortgage servicing rights to a Loan Investor, (B)imposed in writing restrictions on the activities (including commitment authority) of the Company or any of its Subsidiaries or (C) indicated in writing to the Company or any of its Subsidiaries that it has terminated or intends to terminate its relationship with the Company or any of its Subsidiaries for poor performance, poor loan quality or concern with respect to the Companys or any of its Subsidiaries compliance with laws."
"For purposes of this Section 2.36: (A) Agency means the Federal Housing Administration, the Federal Home Loan Mortgage Corporation, the Farmers Home Administration (now known as Rural Housing and Community Development Services), the Federal National Mortgage Association, the United States Department of Veterans Affairs, the Rural Housing Service of the U.S. Department of Agriculture or any other federal or state agency with authority to (i) determine any investment, origination, lending or servicing requirements with regard to mortgage loans originated, purchased or serviced by the Company or any of its Subsidiaries or (ii) originate, purchase, or service mortgage loans, or otherwise promote mortgage lending, including state and local housing finance authorities; (B) Loan Investor means any Person (including an Agency) having a beneficial interest in any mortgage loan originated, purchased or serviced by the Company or any of its Subsidiaries or a security backed by or representing an interest in any such mortgage loan; and (C) Insurer means a person who insures or guarantees for the benefit of the mortgagee all or any portion of the risk of loss upon borrower default on any of the mortgage loans originated, purchased or serviced by the Company or any of its Subsidiaries, including the Federal Housing Administration, the United States Department of Veterans Affairs, the Rural Housing Service of the U.S. Department of Agriculture and any private mortgage insurer, and providers of hazard, title or other insurance with respect to such mortgage loans or the related collateral."
"3.13No Commonly Controlled Insured Depository Institution. The Purchaser does not own any interest in any depository institution such that the acquisition by such Purchaser of its Shares would cause any Subsidiary of the Company and that depository institution to become commonly controlled insured depository institutions (as that term is defined for purposes of 12 U.S.C. 1815(e), as may be amended or supplemented from time to time, and any successor thereto)."
"3.14Acting in Concert. Purchaser is not acting in concert or as part of a group with any other Purchaser or any other Person in connection with the transactions contemplated by this Agreement other than its Affiliates. Purchaser is not party to any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of, in each case, any shares of Common Stock or other securities of the Company or any option, warrant or other right to acquire any of the foregoing."
"4.4Securities Laws Disclosure; Publicity. Within the period prescribed by Form 8-K, the Company shall issue a press release announcing the signing of Transaction Documents and describing the terms of the Transactions, the Minden Acquisition and any other material, non-public information set forth in the Investor Presentation. From and after the issuance of the press release, no Purchaser shall be in possession of any material, non-public information received from the Company or any of its officers, directors, employees or agents, that is not disclosed in the press release, including without limitation, information regarding the Minden Acquisition. The Company shall not publicly disclose the name of any Purchaser or its investment adviser, or include the name of any Purchaser or its investment adviser in any filing with the SEC (other than in a Registration Statement and any exhibits to filings made in respect of this transaction or, subject to review, and the consent of each Purchaser named herein (which shall not be unreasonably withheld or delayed)) in accordance with periodic filing requirements under the Exchange Act) or any regulatory agency, without the prior written consent of such Purchaser, except to the extent such disclosure is required by law or regulations, in which case the Company shall provide the Purchasers with prior notice of such disclosure."
"(g)Transfer Agent Instructions. If such Purchasers Shares are certificated, the Company shall have delivered to its transfer agent irrevocable instructions to issue to such Purchaser or in such nominee name(s) as designated by such Purchaser in writing one or more certificates representing such Shares, set forth opposite such Purchasers name on Exhibit A hereto. If such Shares are not certificated, such Purchaser shall have received a statement from the Companys transfer agent evidencing the issuance of such Shares to such Purchaser on and as of the Closing Date."
"7.4Severability. If any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, then such provision will be deemed modified in order to conform with such statute or rule of law. Any provision hereof that may prove invalid or unenforceable under any law will not affect the validity or enforceability of any other provision hereof."
"The Transaction Documents constitute a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as rights to indemnity and contribution under the Registration Rights Agreement may be limited or otherwise affected by applicable laws and except as enforcement may be limited or otherwise affected by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors rights, and subject to general equity principles, whether considered at law or in equity and to limitations on availability of equitable relief, including specific performance. ---|--- "
"Section 3.1 INTENT. The Investor is entering into this Agreement for its own account and the Investor has no present arrangement (whether or not legally binding) at any time to sell the Securities to or through any Person in violation of the Securities Act or any applicable state securities laws; provided, however, that the Investor reserves the right to dispose of the Securities at any time in accordance with federal and state securities laws applicable to such disposition."
"Section 4.3 CAPITALIZATION. As of the date hereof, the authorized capital stock of the Company consists of (a) 200,000,000 shares of Common Stock, par value of $0.0001 per share, of which approximately 105,072,899 shares of Common Stock are issued and outstanding and (b) 15,000,000 shares of preferred stock of which 409,500 shares are issued and outstanding. Except as set forth on Schedule 4.3, the Company has not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Companys stock option plans, the issuance of shares of Common Stock to employees pursuant to the Companys employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. Except as set forth on Schedule 4.3 and except as a result of the purchase and sale of the Securities, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire any shares of Common Stock, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents. The issuance and sale of the Securities will not obligate the Company to issue shares of Common Stock or other securities to any Person (other than the Investor) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. There are no stockholders agreements, voting agreements or other similar agreements with respect to the Companys capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Companys stockholders."
"(i) If the Indemnifying Party notifies the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 9.3(a), then the Indemnifying Party shall have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at the sole cost and expense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings shall be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which the Indemnified Party shall not be indemnified in full pursuant to Section 9.2). The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Partys delivery of the notice referred to in the first sentence of this clause (i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided, further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this clause (i), and except as provided in the preceding sentence, the Indemnified Party shall bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 9.2 with respect to such Third Party Claim."
"(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 10.7 FEES AND EXPENSES. Except as expressly set forth in the Transaction Documents or any other writing 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 (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Investor. Upon execution of this Agreement, the Company shall issue the Commitment Note and Warrant to Investor for its commitment to enter into this Agreement. The Commitment Note and Warrant shall be earned in full upon the execution of this Agreement, and the Commitment Note and Warrant is not contingent upon any other event or condition, including but not limited to the effectiveness of the Registration Statement or the Companys submission of a Put Notice to the Investor."
"Section 10.8 COUNTERPARTS. This Agreement may be executed in multiple counterparts, each of which may be executed by less than all of the parties and shall be deemed to be an original instrument which shall be enforceable against the parties actually executing such counterparts and all of which together shall constitute one and the same instrument. This Agreement may be delivered to the other parties hereto by email of a copy of this Agreement bearing the signature of the parties so delivering this Agreement."
"Pursuant to Section 7.2(k) of that certain equity purchase agreement, dated as of September 15, 2017 (the Agreement), by and between nFsz, Inc. (the Company) and Kodiak Capital Group, LLC (the Investor), the undersigned, in his capacity as Chief Executive Officer of the Company, and not in his individual capacity, hereby certifies, as of the date hereof (such date, the Condition Satisfaction Date), the following:"
"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 the Investor; and"
"1.1 Affiliate means, with respect to any specified Person, any other Person who, directly or indirectly, controls, is controlled by, or is under common control with such Person, including any general partner, managing member, officer or director of such Person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the same management company with, such Person."
"3.3 Compliance with Other Instruments. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement will not result in any such violation or be in conflict with or constitute, with or without the passage of time and giving of notice, either (i)a default under any such provision, instrument, judgment, order, writ, decree, contract or agreement or (ii)an event that results in the creation of any Encumbrance upon any assets of ACM or the suspension, revocation, forfeiture, or nonrenewal of any material permit or license applicable to ACM."
"4.8 Permits. Ninebell has all franchises, permits, licenses and any similar authority necessary for the conduct of its business as now being conducted by it, the lack of which could have an MAE. Ninebell is not in default in any material respect under any of such franchises, permits, licenses or other similar authority."
"(e) Any Proposed Shareholder Transfer not made in compliance with the requirements of this Agreement shall be null and void ab initio, shall not be recorded on the books of Ninebell or its transfer agent, and shall not be recognized by Ninebell. Ninebell and Shareholder acknowledge and agree that any breach of this Section5.3 would result in substantial harm to ACM for which monetary damages alone could not adequately compensate. Therefore, the parties hereto unconditionally and irrevocably agree that any non-breaching party hereto shall be entitled to seek protective orders, injunctive relief, and other remedies available at law or in equity (including seeking specific performance or the rescission of purchases, sales and other transfers of Shareholder Transfer Shares not made in strict compliance with this Agreement)."
"6.3 Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective 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."
"6.13 Dispute Resolution. The parties (a)hereby irrevocably and unconditionally submit to the jurisdiction of the state courts of the State of California and to the jurisdiction of the U.S. District Court for the Northern District of California for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (b)agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the state courts of California or the U.S. District Court for the Northern District of California, and (c)hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court."