Interpretive Matters. Wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, feminine and neuter genders. The words “including”, “includes” and “include” shall be deemed to be followed by the words “without limitation”; the word “or” is not exclusive; references to Persons include their respective successors and assigns (to the extent and only to the extent permitted by the Loan Documents) or, in the case of governmental Persons, Persons succeeding to the relevant functions of such Persons; and all references to agreements and instruments, statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Party, such words are intended to signify that such Credit Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition, for purposes hereof, (a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (b) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness; (c) the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of a Person dated such date prepared in accordance with GAAP; (d) the principal amount of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater; and (e) 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 GAAP; provided, that, if Borrower notifies Agent that Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if 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.
Appears in 7 contracts
Sources: Refinancing Amendment (XPO, Inc.), Revolving Credit Agreement (XPO, Inc.), Incremental Amendment to Credit Agreement (XPO, Inc.)
Interpretive Matters. Wherever from Unless the context otherwise requires, (a) all references to Articles, Sections, Schedules or Exhibits shall mean and refer to Articles, Sections, Schedules or Exhibits in this Agreement; (b) each accounting term not otherwise defined in this Agreement has the meaning assigned to it appears appropriate, each term stated in either accordance with GAAP; (c) words in the singular or plural shall include the singular and the plural, and pronouns stated in either the masculine, feminine or neuter gender shall include the masculine, feminine and neuter genders. The words neuter; (d) the term “including” shall mean “including, without limitation,” (i.e., by way of example and not by way of limitation); (e) all references to statutes and related regulations shall include all amendments of the same and any successor or replacement statutes and regulations; (f) references to “hereof”, “includesherein”, “hereby” and “include” similar terms shall refer to this entire Agreement (including the Schedules and Exhibits hereto); (g) references to any Person shall be deemed to be followed by mean and include the words “without limitation”; the word “or” is not exclusive; references to Persons include their respective successors and permitted assigns of such Person (to the extent and only to the extent permitted by the Loan Documents) or, in the case of governmental Personsa Governmental Authority, Persons succeeding to the relevant functions of such PersonsPerson); and all references (h) whenever this Agreement refers to agreements a number of days, such number shall refer to calendar days, unless such reference is specifically to “business days.” The Parties intend that each representation, warranty and instrumentscovenant contained herein shall have independent significance. If any Party has breached any representation, statutes and related regulations shall include warranty or covenant contained herein in any amendments respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the same relative levels of specificity) that the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of such representation, warranty or covenant. The section headings of this Agreement are included for reference purposes only and any successor statutes and regulations. Whenever any provision in any Loan Document refers to shall not affect the knowledge (construction or an analogous phrase) interpretation of any Credit Party, such words are intended to signify of the provisions of this Agreement. Each of the Parties acknowledges that such Credit Party it has actual knowledge or awareness been represented by independent counsel of a particular fact or circumstance or its choice throughout all negotiations that such Credit Party, if have preceded the execution of this Agreement and that it had exercised reasonable diligence, would has executed the same with consent and upon the advice of said independent counsel. The Parties have known or been aware participated jointly in the negotiation and drafting of such fact or circumstancethis Agreement. In additionthe event an ambiguity or question of intent arises, for purposes hereofthis Agreement shall be construed as if drafted jointly by the Parties, (a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (b) unsecured Indebtedness and no presumption or burden of proof shall not be deemed to be subordinate arise, or junior to secured Indebtedness merely rule of strict construction applied, favoring or disfavoring any Party by virtue of its nature as unsecured Indebtedness; (c) the principal amount authorship of any non-interest bearing of the provisions of this Agreement. Accordingly, any rule of law or other discount security at any date shall be the principal amount thereof legal decision that would be shown on a balance sheet of a Person dated such date prepared in accordance with GAAP; (d) the principal amount require interpretation of any Preferred Stock shall be (i) ambiguities in this Agreement against the maximum liquidation value Party that drafted it is of such Preferred Stock or (ii) no application and is hereby expressly waived by the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater; and (e) 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 GAAP; provided, that, if Borrower notifies Agent that Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if 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 herewithParties hereto.
Appears in 5 contracts
Sources: Asset Purchase Agreement (Patriot National, Inc.), Asset Purchase Agreement (Patriot National, Inc.), Asset Purchase Agreement (Patriot National, Inc.)
Interpretive Matters. Wherever from Unless the context otherwise requires, (a) all references to Articles, Sections, Schedules or Exhibits shall mean and refer to Articles, Sections, Schedules or Exhibits in this Agreement; (b) each accounting term not otherwise defined in this Agreement has the meaning assigned to it appears appropriate, each term stated in either accordance with GAAP; (c) words in the singular or plural shall include the singular and the plural, and pronouns stated in either the masculine, feminine or neuter gender shall include the masculine, feminine and neuter genders. The words neuter; (d) the term “including” shall mean “including without limitation” (i.e., by way of example and not by way of limitation); (e) all references to statutes and related regulations shall include all amendments of the same and any successor or replacement statutes and regulations; (f) references to “hereof”, “includesherein”, “hereby” and “include” similar terms shall refer to this entire Agreement (including the Schedules and Exhibits hereto); (g) references to any Person shall be deemed to be followed by mean and include the words “without limitation”; the word “or” is not exclusive; references to Persons include their respective successors and permitted assigns of such Person (to the extent and only to the extent permitted by the Loan Documents) or, in the case of governmental Personsa Governmental Authority, Persons succeeding to the relevant functions of such PersonsPerson); and all references (h) whenever this Agreement refers to agreements a number of days, such number shall refer to calendar days, unless such reference is specifically to “business days.” The Parties intend that each representation, warranty and instrumentscovenant contained herein shall have independent significance. If any Party has breached any representation, statutes and related regulations shall include warranty or covenant contained herein in any amendments respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the same relative levels of specificity) that the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of such representation, warranty or covenant. The section headings of this Agreement are included for reference purposes only and any successor statutes and regulations. Whenever any provision in any Loan Document refers to shall not affect the knowledge (construction or an analogous phrase) interpretation of any Credit Party, such words are intended to signify of the provisions of this Agreement. Each of the Parties acknowledges that such Credit Party it has actual knowledge or awareness been represented by independent counsel of a particular fact or circumstance or its choice throughout all negotiations that such Credit Party, if have preceded the execution of this Agreement and that it had exercised reasonable diligence, would has executed the same with consent and upon the advice of said independent counsel. The Parties have known or been aware participated jointly in the negotiation and drafting of such fact or circumstancethis Agreement. In additionthe event an ambiguity or question of intent arises, for purposes hereofthis Agreement shall be construed as if drafted jointly by the Parties, (a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (b) unsecured Indebtedness and no presumption or burden of proof shall not be deemed to be subordinate arise, or junior to secured Indebtedness merely rule of strict construction applied, favoring or disfavoring any Party by virtue of its nature as unsecured Indebtedness; (c) the principal amount authorship of any non-interest bearing of the provisions of this Agreement. Accordingly, any rule of law or other discount security at any date shall be the principal amount thereof legal decision that would be shown on a balance sheet of a Person dated such date prepared in accordance with GAAP; (d) the principal amount require interpretation of any Preferred Stock shall be (i) ambiguities in this Agreement against the maximum liquidation value Party that drafted it is of such Preferred Stock or (ii) no application and is hereby expressly waived by the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater; and (e) 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 GAAP; provided, that, if Borrower notifies Agent that Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if 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 herewithParties hereto.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Patriot National, Inc.), Asset Purchase Agreement (Patriot National, Inc.), Asset Purchase Agreement (Patriot National, Inc.)
Interpretive Matters. Wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, feminine and neuter genders. The words “including”, “includes” and “include” shall be deemed to be followed by the words “without limitation”; the word “or” is not exclusive; references to Persons include their respective successors and assigns (to the extent and only to the extent permitted by the Loan Documents) or, in the case of governmental Persons, Persons succeeding to the relevant functions of such Persons; and all references to agreements and instruments, statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Party, such words are intended to signify that such Credit Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition, for purposes hereof, (a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (b) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness; (c) the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of a Person dated such date prepared in accordance with GAAP; (d) the principal amount of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater; and (e) 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 GAAP; provided, that, if Borrower Representative notifies Agent that Borrower Representative requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Amendment No. 3 Effective Date in GAAP or in the application thereof on the operation of such provision (or if Agent notifies Borrower Representative 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.
Appears in 3 contracts
Sources: Revolving Loan Credit Agreement (XPO, Inc.), Revolving Loan Credit Agreement (XPO Logistics, Inc.), Revolving Loan Credit Agreement (XPO Logistics, Inc.)
Interpretive Matters. Wherever from In this Agreement, unless otherwise specified or where the context it appears appropriate, each otherwise requires:
(a) the headings of particular provisions of this Agreement are inserted for convenience only and will not be construed as a part of this Agreement or serve as a limitation or expansion on the scope of any term stated in either or provision of this Agreement;
(b) words importing any gender shall include other genders;
(c) words importing the singular or plural only shall include the singular plural and vice versa;
(d) the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, feminine and neuter genders. The words “including”, include,” “includes” and “includeincluding” shall be deemed to be followed by the words “without limitation”; ” for all purposes outside this Section 9.6;
(e) the word words “orhereof,” is “herein” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not exclusive; to any particular provision of this Agreement;
(f) references to Persons “Articles,” “Sections,” “Schedules” or “Exhibits” shall be to Articles, Sections, Schedules or Exhibits of or to this Agreement;
(g) references to any Person include their respective the permitted successors and assigns of such Person;
(h) except as otherwise expressly provided herein, wherever a conflict exists between this Agreement and any other agreement referenced herein, this Agreement shall control but solely to the extent of such conflict;
(i) references to any agreement or contract, unless otherwise stated, are to such agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and only to thereof; and PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT; [***] DENOTES OMISSIONS.
(j) the extent permitted by parties hereto have participated jointly in the Loan Documents) ornegotiation and drafting of this Agreement; accordingly, in the case event an ambiguity or question of governmental Personsintent or interpretation arises, Persons succeeding to this Agreement shall be construed as if drafted jointly by the relevant functions parties hereto, and no presumption or burden of such Persons; and all references to agreements and instruments, statutes and related regulations proof shall include arise favoring or disfavoring any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Party, such words are intended to signify that such Credit Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition, for purposes hereof, (a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (b) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely party hereto by virtue of its nature as unsecured Indebtedness; (c) the principal amount authorship of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet provisions of a Person dated such date prepared in accordance with GAAP; (d) the principal amount of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater; and (e) 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 GAAP; provided, that, if Borrower notifies Agent that Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if 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 herewiththis Agreement.
Appears in 2 contracts
Sources: Contribution Agreement (Mascoma Corp), Contribution Agreement (Mascoma Corp)
Interpretive Matters. Wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, feminine and neuter genders. The words “including”, “includes” and “include” shall be deemed to be followed by the words “without limitation”; the word “or” is not exclusive; references to Persons include their respective successors and assigns (to the extent and only to the extent permitted by the Loan Documents) or, in the case of governmental Persons, Persons succeeding to the relevant functions of such Persons; and all references to agreements and instruments, statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Party, such words are intended to signify that such Credit Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition, for purposes hereof, (a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (b) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness; (c) the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of a Person dated such date prepared in accordance with GAAP; (d) the principal amount of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater; and (e) 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 GAAP; provided, that, if Borrower Representative notifies Agent that Borrower Representative requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Restatement Date in GAAP or in the application thereof on the operation of such provision (or if Agent notifies Borrower Representative 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.
Appears in 2 contracts
Sources: Revolving Loan Credit Agreement (XPO Logistics, Inc.), Revolving Loan Credit Agreement (XPO Logistics, Inc.)
Interpretive Matters. Wherever from (a) All references in this Agreement to Exhibits, Schedules, Articles, Sections and subsections refer to the context it appears appropriatecorresponding Exhibits, each term stated in either the singular Schedules, Articles, Sections and subsections of or plural shall include the singular and the pluralto this Agreement, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, feminine and neuter gendersunless expressly provided otherwise. The words 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. Any capitalized terms used in any Schedule or Exhibit but not otherwise defined therein shall be defined as set forth in this Agreement.
(b) The word “including”, “includes” and “include” shall be deemed to be followed by the words “(in its various forms) means including without limitation”; the . The word “or” is not exclusive; references exclusive and the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to Persons include their respective successors this Agreement as a whole and assigns (not to the extent particular provision in which such words appear. Pronouns in masculine, feminine or neuter genders shall be construed to state and include any other gender, and words, terms and titles (including terms defined herein) in the singular form shall be construed to include the plural and vice versa, unless the context otherwise requires. Any reference in this Agreement to $ shall mean U.S. dollars. The Parties agree that all amounts required to be paid hereunder shall be paid in United States currency and, except as otherwise expressly set forth in this Agreement, without discount, rebate or reduction and subject to no counterclaim or offset, on the dates specified herein.
(c) References to any Laws shall be deemed also to include any and all rules and regulations promulgated thereunder and shall refer to such Laws, rules and regulations as amended from time to time and include any successor legislation thereto; provided, however, that, for the purposes of the representations and warranties set forth herein, with respect to any violation or alleged violation of any Laws, rules and regulations, the reference to such Laws, rules and regulations means such Laws, rules and regulations as in effect at the time of such violation or alleged violation and only such Laws, rules and regulations as to which the Governmental Body that enacted or promulgated such Laws, rules and regulations has jurisdiction over such Person, thing or matter as determined under the Laws, rules and regulations of the United States as required to be applied thereunder by a state or federal court sitting in the State of Delaware.
(d) References to an agreement, instrument or document means such agreement, instrument or document as amended, supplemented and modified from time to time to the extent permitted by the Loan Documentsprovisions thereof and not prohibited by this Agreement.
(e) orThe Parties confirm that they and their respective counsel have reviewed, in negotiated and adopted this Agreement as the case of governmental Persons, Persons succeeding to the relevant functions of such Persons; joint agreement and all references to agreements and instruments, statutes and related regulations shall include any amendments understanding of the same Parties, and any successor statutes and regulations. Whenever any provision the language used in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Party, such words are intended to signify that such Credit Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition, for purposes hereof, (a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (b) unsecured Indebtedness this Agreement shall not be deemed to be subordinate or junior the language chosen by the Parties to secured Indebtedness merely by virtue express their mutual intent, and no rule of its nature as unsecured Indebtedness; strict construction shall be applied against any Person.
(cf) the principal amount The specification of any non-interest bearing dollar amount or other discount security at the inclusion of any date item in the representations and warranties contained in this Agreement is not intended to imply that the amounts, or higher or lower amounts, or the items so included, are required to be disclosed (including whether such amounts or items are required to be disclosed as material or threatened), are within or outside of the Ordinary Course of Business, or are or are not material, and no Party shall use the fact of the setting of the amounts or the fact of the inclusion of any item in this Agreement in any dispute or controversy between the Parties as to whether any obligation, item or matter not described or included in this Agreement is material within or outside of the Ordinary Course of Business for purposes of this Agreement.
(g) Disclosure of any item on the disclosure schedules (the “Schedules”) attached to this Agreement shall be deemed disclosure with respect to all Sections of this Agreement if the principal amount thereof that would be shown on a balance sheet relevance of a Person dated such date prepared item is reasonably apparent from the face of the Schedules. The information contained in accordance with GAAP; (d) this Agreement, the principal amount of any Preferred Stock shall be Schedules and the Exhibits: (i) the maximum liquidation value is disclosed solely for purposes of such Preferred Stock this Agreement, and no information contained herein or therein shall be deemed to be an admission by any Party to any third party of any matter whatsoever; (ii) does not constitute an admission by any Party, or otherwise imply, that such matter is required to be disclosed or is or is not material for the maximum mandatory redemption purposes of the this Agreement, gives or mandatory repurchase price does not give rise to a Material Adverse Effect or is or is not outside the Ordinary Course of Business; (iii) may not be limited to matters required by the Agreement to be disclosed in the Schedules, and any such additional matter is disclosed for informational purposes only and does not necessarily include other matters of a similar nature; (iv) with respect to the enforceability of agreements with third parties, the existence or non-existence of third-party rights, the absence of breaches or defaults by third parties, or similar matters or statements, is intended only to allocate rights and risks among the Parties and is not intended to be admissions against interests, give rise to any inference or proof of accuracy, be admissible against any party by any Person who is not a Party, or give rise to any claim or benefit to any Person who is not a Party; (v) is not an admission that such Preferred Stockmatter actually constitutes noncompliance with, whichever is greateror a violation of, any Law, Permit, Contract or other topic to which such disclosure applies; and (evi) 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 does not waive any attorney-client privilege associated with GAAP; provided, that, if Borrower notifies Agent that Borrower requests an amendment such item or information or any protection afforded by the work-product doctrine with respect to any provision hereof to eliminate of the effect matters disclosed or discussed herein.
(h) For purposes of any change occurring after the Agreement, the following terms have meanings set forth on the pages indicated. Agreement 1 Allocation 7 Assumed Liabilities 4 Attrition Rate Statement 10 Basket 29 Business 1 Closing 11 Closing Date in GAAP or in the application thereof on the operation of such provision (or if 11 Closing Date Cash Payment 8 Closing Statement 8 Continuing Business 1 Covered Matters 33 Customer Contracts 16 Customers 19 Dispute Notice 10 Escrow 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.31 Escrow Agreement 31 Estimated Closing RMR 7 Estimated Purchase Price 7 Excess Attrition 11 Excluded Assets 3 Excluded Liabilities 5 Final Attrition Rate 10 Final Purchase Price 9 FIRPTA Affidavit 25 Fundamental Representations 26 General Survival Date 26 Hawk 1 Indemnity Escrow Account 31 Indemnity Escrow Amount 31 Lender 37 Loss 27 Losses 27 Material Contracts 16 Nonassignable Assets 6 Non-Party Affiliates 38 Overpayment 9 Parties 1 Party 1 Personal Data 15 Personal Property Leases 13 Preliminary Closing Statement 7 Prior Owners 15 Purchase Price 7 Purchased Assets 1 Purchased Contracts 2 Purchased Intellectual Property 2 Purchaser 1 Purchaser Documents 21 Purchaser Indemnified Parties 27 Purchaser Indemnified Party 27 Purchaser’s Attrition Claim 10 Real Property Lease 14 Real Property Leases 14 Schedules 39 Seller 1 Seller Documents 12 Seller Indemnified Parties 27 Seller Indemnified Party 27 Seller Marks 23 Seller Permits 19 Seller Properties 14 Seller Property 14 Seller Retained Marks 23 Specified IP Representation 26 Survival Date 27 Tangible Assets 2 Third-Party Claim 28 Total Consideration 7 Transfer Taxes 34 Transferred Employees 24 Transition Services Agreement 25 Underpayment 9 Unresolved Claims 32 Web Site Privacy Policy 15 WIP 2 WIP Schedule 21
Appears in 2 contracts
Sources: Asset Purchase Agreement (Interface Security Systems, L.L.C.), Asset Purchase Agreement (Interface Security Systems Holdings Inc)
Interpretive Matters. Wherever from Any reference in this Agreement to a “Section”, “Article” or “Schedule” refers to the corresponding Section, Article or Schedule of or to this Agreement, unless the context indicates otherwise. The headings of Articles herein are provided for convenience of reference only and are not intended to affect the construction or interpretation of this Agreement. The words “including,” “includes” or “include” are to be read as listing non-exclusive examples of the matters referred to, whether or not words such as “without limitation” or “but not limited to” are used in each instance. Where this Agreement states that a Party “shall,” “will” or “must” perform in some manner or otherwise act or omit to act, it appears appropriatemeans that the Party is legally obligated to do so in accordance with the terms of this Agreement. Any reference to a statute, each term stated rule or regulation is deemed also to refer to any amendments or successor legislation, rule or regulation as in either effect at the relevant time. Any reference to a contract or other document as of a given date means the contract or other document as amended, supplemented and modified from time to time through such date. Any words (including initial capitalized terms defined herein) in the singular or plural shall will be held to include the singular plural and vice versa. The terms “hereof,” “herein” and “herewith” and words of similar import will, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement. All accounting terms not otherwise defined herein have the pluralmeanings given to them in accordance with GAAP. This Agreement has been freely and fairly negotiated by the Parties. If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties, no presumption or burden of proof will arise favoring or disfavoring any Party because of the authorship of any provision of this Agreement and pronouns stated prior drafts of this Agreement will be disregarded in interpreting this Agreement. If the date upon or by which any Party hereto is required to perform any covenant or obligation hereunder falls on a day that is not a Business Day, then such date of performance will be automatically extended to the next Business Day thereafter. Unless the context otherwise requires, (a) “or” is disjunctive but not necessarily exclusive and (b) the use in this Agreement of a pronoun in reference to a Party hereto includes the masculine, feminine or neuter gender shall include neuter, as the masculine, feminine and neuter genderscontext may require. The words “including”, “includes” and “include” shall be deemed to be followed by the words “without limitation”; the word “or” is not exclusive; references to Persons include their respective successors and assigns (to the extent and only to the extent permitted by the Loan Documents) or, in the case of governmental Persons, Persons succeeding to the relevant functions of such Persons; and all references to agreements and instruments, statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers Any representation or warranty made to the knowledge (or an analogous phrase) of any Credit Party, such words are intended to signify that such Credit Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition, for purposes hereof, (a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (b) unsecured Indebtedness shall not Party will be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness; (c) the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of a Person dated such date prepared in accordance with GAAP; (d) the principal amount of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater; and (e) 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 GAAP; provided, that, if Borrower notifies Agent that Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if 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 herewithParty’s actual knowledge.
Appears in 2 contracts
Sources: Share Purchase Agreement (Westinghouse Air Brake Technologies Corp), Tender Offer Agreement (Westinghouse Air Brake Technologies Corp)
Interpretive Matters. Wherever from Unless otherwise expressly provided, for purposes of this Agreement and any Annexes, Exhibits and Schedules attached hereto, the context it appears appropriatefollowing rules of interpretation shall apply:
(a) When calculating the period of time before which, each term stated 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 either 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;
(b) Any reference in this Agreement to $ shall mean U.S. dollars;
(c) The Annexes, Exhibits and Schedules to this Agreement are hereby incorporated and made a part hereof and are an integral part of this Agreement. All Annexes, Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Annex, Exhibit or Schedule but not otherwise defined therein shall be defined as set forth in this Agreement;
(d) Any reference in this Agreement to gender shall include all genders, and words imparting the singular or plural number only shall include the singular plural and vice versa;
(e) The provision of a Table of Contents, the division of this Agreement into Articles, Sections and other subdivisions and the plural, insertion of headings are for convenience of reference only and pronouns stated shall not affect or be utilized in construing or interpreting this Agreement. All references in this Agreement to any “Section” are to the masculine, feminine or neuter gender shall include the masculine, feminine and neuter genders. corresponding Section of this Agreement unless otherwise specified;
(f) The words such as “including”, herein,” “includeshereinafter,” “hereof,” and “includehereunder” shall be deemed refer to be followed by the words “without limitation”; the word “or” is this Agreement as a whole and not exclusive; references merely to Persons include their respective successors and assigns (to the extent and only to the extent permitted by the Loan Documents) or, a subdivision in the case of governmental Persons, Persons succeeding to the relevant functions of such Persons; and all references to agreements and instruments, statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Party, which such words are intended to signify that such Credit Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition, for purposes hereof, (a) an accounting term not appear unless the context otherwise defined has the meaning assigned to it in accordance with GAAP; (b) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness; (c) the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of a Person dated such date prepared in accordance with GAAP; (d) the principal amount of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater; and (e) 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 GAAP; provided, that, if Borrower notifies Agent that Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if 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.expressly requires;
Appears in 2 contracts
Sources: Merger Agreement (Liberator Medical Holdings, Inc.), Merger Agreement (Rochester Medical Corporation)
Interpretive Matters. Wherever from Unless the context otherwise requires, (a) all references to Articles, Sections or Schedules are to Articles, Sections or Schedules in this Agreement, (b) each accounting term not otherwise defined in this Agreement has the meaning assigned to it appears appropriatein accordance with GAAP, each term stated (c) words in either the singular or plural shall include the singular and the plural, and pronouns stated in either the masculine, the feminine or neuter gender shall include the masculine, feminine and neuter genders. The neuter, (d) whenever the words “including”, include,” “includes” and or “includeincluding” are used in this Agreement they shall be deemed to be followed by the words “without limitation”; the word “orbut not limited to” is not exclusive; references to Persons include their respective successors and assigns (to the extent and only to the extent permitted by the Loan Documents) or, in the case of governmental Persons, Persons succeeding to the relevant functions of such Persons; and all references to agreements and instruments, statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Party, such words are intended to signify that such Credit Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition, for purposes hereof, (a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (b) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness; (c) the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of a Person dated such date prepared in accordance with GAAP; (d) the principal amount of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater; and (e) unless otherwise specified hereinthe word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, all accounting terms used and such phrase shall not simply mean “if”. The Parties intend that each representation, warranty, covenant and agreement contained herein shall be interpretedhave independent significance. If any Party has breached any representation, all accounting determinations hereunder warranty, covenant or agreement contained herein in any respect, the fact that there exists another representation, warranty, covenant or agreement relating to the same subject matter that the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of the first representation, warranty, covenant or agreement. All uses of “written” contained in Articles 2, 3 and 4 shall be madedeemed to include information transmitted via electronic mail, facsimile or other electronic transmission. For purposes of Article 3, information shall be deemed to have been “made available” to Buyer only if such information was posted to the electronic data room maintained by Fenwick & West LLP in a manner accessible and reviewable by Buyer at least 2 days prior to the date hereof. The Parties agree that any drafts of this Agreement or any Transaction Document prior to the final fully executed drafts shall not be used for purposes of interpreting any provision of this Agreement or any Transaction Document, and all financial statements required to be delivered hereunder each of the Parties agrees that no Party, Indemnifying Party or Indemnified Party shall be prepared make any claim, assert any defense or otherwise take any position inconsistent with the foregoing in accordance connection with GAAP; provided, that, if Borrower notifies Agent that Borrower requests an amendment to any provision hereof to eliminate dispute or Proceeding among any of the effect of foregoing or for any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if Agent notifies Borrower that the Requisite Lenders request an amendment to any provision hereof for such other 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.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Lin Television Corp), Stock Purchase Agreement (LIN Media LLC)
Interpretive Matters. Wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, feminine and neuter genders. The words “including”, “includes” and “include” shall be deemed to be followed by the words “without limitation”; the word “or” is not exclusive; references to Persons include their respective successors and assigns (to the extent and only to the extent permitted by the Loan Documents) or, in the case of governmental Persons, Persons succeeding to the relevant functions of such Persons; and all references to agreements and instruments, statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Party, such words are intended to signify that such Credit Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition, for purposes hereof, (a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (b) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness; (c) the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of a Person dated such date prepared in accordance with GAAP; (d) the principal amount of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater; and (e) 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 GAAP; provided, that, if the U.S. Borrower notifies the Agent that the U.S. Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if the Agent notifies the U.S. 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.
Appears in 1 contract
Interpretive Matters. Wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, feminine and neuter genders. The words “including”, “includes” and “include” shall be deemed to be followed by the words “without limitation”; the word “or” is not exclusive; references to Persons include their respective successors and assigns (to the extent and only to the extent permitted by the Loan Documents) or, in the case of governmental Persons, Persons succeeding to the relevant functions of such Persons; and all references to agreements and instruments, statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Party, such words are intended to signify that such Credit Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition, for purposes hereof, (a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (b) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness; (c) the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of a Person dated such date prepared in accordance with GAAP; (d) the principal amount of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater; and (e) 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 GAAP; provided, that, if Borrower Representative notifies Agent that Borrower Representative requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing RestatementAmendment No. 3 Effective Date in GAAP or in the application thereof on the operation of such provision (or if Agent notifies Borrower Representative 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.
Appears in 1 contract
Sources: Revolving Loan Credit Agreement (XPO Logistics, Inc.)
Interpretive Matters. Wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, feminine and neuter genders. The words “including”, “includes” and “include” shall be deemed to be followed by the words “without limitation”; the word “or” is not exclusive; references to Persons include their respective successors and assigns (to the extent and only to the extent permitted by the Loan Documents) or, in the case of governmental Persons, Persons succeeding to the relevant functions of such Persons; and all references to agreements and instruments, statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Party, such words are intended to signify that such Credit Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition, for purposes hereof, (a) The Exhibits, the Disclosure Letter, the Annexes and the Schedules to this Agreement are hereby incorporated and made a part hereof and are an accounting term integral part of this Agreement. Sellers and the Companies may, at their option, include in the Disclosure Letter items that are not otherwise defined has the meaning assigned material in order to it in accordance with GAAP; (b) unsecured Indebtedness avoid any misunderstanding, and such inclusion, or any reference to dollar amounts, shall not be deemed to be subordinate an acknowledgement or junior representation that such items are material, to secured Indebtedness merely by virtue establish any standard of its nature as unsecured Indebtedness; (c) materiality or to define further the principal amount meaning of such terms for purposes of this Agreement or otherwise. Any matter set forth in any non-interest bearing or other discount security at any date section of the Disclosure Letter shall be deemed to be referred to and incorporated in any section to which it is specifically referenced or cross-referenced, and also in all other sections of the principal amount thereof that would be shown Disclosure Letter to which such matter’s application or relevance is reasonably apparent on a balance sheet the face of a Person dated such date prepared disclosure. Any matters set forth in accordance with GAAP; (d) the principal amount of any Preferred Stock Parent SEC Documents shall be deemed to be referred to and incorporated in any section to which it is specifically referenced or cross-referenced and also in all other sections to which such matter’s application or relevance is reasonably apparent on the face of such disclosure. Except as expressly contemplated by this Agreement or the Disclosure Letter, nothing in the Disclosure Letter (i) shall broaden the maximum liquidation value scope of such Preferred Stock any representation, warranty or covenant of any Party or (ii) the maximum mandatory redemption shall constitute a representation, warranty or mandatory repurchase price covenant with respect to such Preferred Stock, whichever is greater; and (e) unless otherwise specified herein, all accounting the matters being disclosed. Any capitalized terms used herein in the Disclosure Letter or any Schedule, Annex or Exhibit hereto but not otherwise defined therein shall be interpreteddefined as set forth in this Agreement.
(b) Any reference in this Agreement to gender shall include all genders and the neuter.
(c) The Parties have participated jointly in the negotiation and drafting of this Agreement and, all accounting determinations hereunder in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be made, construed as jointly drafted by the Parties and all financial statements required to be delivered hereunder no presumption or burden of proof shall be prepared in accordance with GAAP; provided, that, if Borrower notifies Agent that Borrower requests an amendment to arise favoring or disfavoring any Party by virtue of the authorship of any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if 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 herewiththis Agreement.
Appears in 1 contract
Sources: Contribution and Equity Purchase Agreement (McAfee Corp.)
Interpretive Matters. (a) All other undefined terms contained in any of the Loan Documents shall, unless the context indicates otherwise, have the meanings provided for by the Code as in effect in the State of New York to the extent the same are used or defined therein. Unless otherwise specified, references in this Agreement or any of the Appendices to a Section, subsection or clause refer to such Section, subsection or clause as contained in this Agreement. The words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole, including all Annexes, Exhibits and Schedules, as the same may from time to time be amended, restated, modified or supplemented, and not to any particular section, subsection or clause contained in this Agreement or any such Annex, Exhibit or Schedule.
(b) Wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, feminine and neuter genders. The words “including”, ,” “includes” and “include” shall be deemed to be followed by the words “without limitation”; the word “or” is not exclusive; references to Persons include their respective successors and assigns (to the extent and only to the extent permitted by the Loan Documents) or, in the case of governmental Persons, Persons succeeding to the relevant functions of such Persons; and all references to agreements and instruments, statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Loan Party, such words are intended to signify that such Credit Loan Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Loan Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition.
(c) Unless otherwise specifically provided herein, for purposes hereof, (a) an any accounting term not otherwise defined has used in this Agreement shall have the meaning assigned to it customarily given such term in accordance with GAAP; (b) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness; (c) the principal amount of any non-interest bearing or other discount security at any date , and all financial computations hereunder shall be computed in accordance with GAAP consistently applied. That certain items or computations are explicitly modified by the principal amount thereof that would be shown on a balance sheet of a Person dated such date prepared phrase “in accordance with GAAP; ” shall in no way be construed to limit the foregoing. If any “Accounting Changes” (das defined below) occur and such changes result in a change in the principal amount calculation of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred Stock financial covenants, standards or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater; and (e) 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 GAAP; provided, that, if Borrower notifies Agent that Borrower requests an amendment to this Agreement or any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if 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 thereofother Loan Document, then such provision shall be interpreted on the basis of GAAP as in effect Borrower, Administrative Agent and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.Lenders agree to negotiate to amend
Appears in 1 contract
Interpretive Matters. Wherever from Any reference in this Agreement to a “Section”, “Article” or “Schedule” refers to the corresponding Section, Article or Schedule of or to this Agreement, unless the context indicates otherwise. The headings of Articles herein are provided for convenience of reference only and TxCell Sangamo TOA are not intended to affect the construction or interpretation of this Agreement. The words “including,” “includes” or “include” are to be read as listing non-exclusive examples of the matters referred to, whether or not words such as “without limitation” or “but not limited to” are used in each instance. Where this Agreement states that a Party “shall,” “will” or “must” perform in some manner or otherwise act or omit to act, it appears appropriatemeans that the Party is legally obligated to do so in accordance with the terms of this Agreement. Any reference to a statute, each term stated rule or regulation is deemed also to refer to any amendments or successor legislation, rule or regulation as in either effect at the relevant time. Any reference to a contract or other document as of a given date means the contract or other document as amended, supplemented and modified from time to time through such date. Any words (including initial capitalized terms defined herein) in the singular or plural shall will be held to include the singular plural and vice versa. The terms “hereof,” “herein” and “herewith” and words of similar import will, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement. All accounting terms not otherwise defined herein have the pluralmeanings given to them in accordance with GAAP. This Agreement has been freely and fairly negotiated by the Parties. If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties, no presumption or burden of proof will arise favoring or disfavoring any Party because of the authorship of any provision of this Agreement and pronouns stated prior drafts of this Agreement will be disregarded in interpreting this Agreement. If the date upon or by which any Party hereto is required to perform any covenant or obligation hereunder falls on a day that is not a Business Day, then such date of performance will be automatically extended to the next Business Day thereafter. Unless the context otherwise requires, (a) “or” is disjunctive but not necessarily exclusive and (b) the use in this Agreement of a pronoun in reference to a Party hereto includes the masculine, feminine or neuter gender shall include neuter, as the masculine, feminine and neuter genders. The words “including”, “includes” and “include” shall be deemed to be followed by the words “without limitation”; the word “or” is not exclusive; references to Persons include their respective successors and assigns (to the extent and only to the extent permitted by the Loan Documents) or, in the case of governmental Persons, Persons succeeding to the relevant functions of such Persons; and all references to agreements and instruments, statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Party, such words are intended to signify that such Credit Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition, for purposes hereof, (a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (b) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness; (c) the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of a Person dated such date prepared in accordance with GAAP; (d) the principal amount of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater; and (e) 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 GAAP; provided, that, if Borrower notifies Agent that Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if 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 herewithcontext may require.
Appears in 1 contract
Sources: Tender Offer Agreement
Interpretive Matters. Wherever from For purposes of this Agreement, each of the Company and the Rights Agent agrees that: (a) whenever the context it appears appropriaterequires, the singular number shall include the plural, and vice versa; (b) the word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and does not simply mean “if”; (c) where a word or phrase is defined in this Agreement, each of its other grammatical forms has a corresponding meaning unless the context otherwise requires; (d) the word “or” shall be deemed to mean “or” unless the Company determines the context requires otherwise; (e) the meaning assigned to each capitalized term stated defined and used in either the singular or plural shall include this Agreement is equally applicable to both the singular and the pluralplural forms of such term, and pronouns stated in words denoting any gender include all genders; and (f) the masculine, feminine or neuter gender shall include the masculine, feminine and neuter genders. The words “including”, “includesinclude” and “includeincluding,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.” The parties hereto have caused this Agreement to be duly executed as of the day and year first above written. By: /s/ By: /s/___________________________ Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ Name: Title: Chief Executive Officer Title: Vice President Neuphoria Therapeutics Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware (the “Corporation”; ), hereby certifies that the word following resolution was adopted by the Board of Directors of the Corporation (the “or” is not exclusive; references to Persons include their respective successors and assigns (Board of Directors”) as required by Section 151 of the General Corporation Law on October 25, 2025: RESOLVED, that pursuant to the extent and only to the extent permitted by the Loan Documents) or, authority vested in the case Board of governmental Persons, Persons succeeding to the relevant functions of such Persons; and all references to agreements and instruments, statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Party, such words are intended to signify that such Credit Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition, for purposes hereof, (a) an accounting term not otherwise defined has the meaning assigned to it Directors in accordance with GAAP; the provisions of the Amended and Restated Certificate of Incorporation of the Corporation (b) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue the “Certificate of its nature as unsecured Indebtedness; (c) the principal amount Incorporation”), a series of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of a Person dated such date prepared in accordance with GAAP; (d) the principal amount of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever par value $0.00001 per share, of the Corporation (“Preferred Stock”) be and it hereby is greater; and (e) unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be madecreated, and all financial statements required to be delivered hereunder shall be prepared in accordance with GAAP; providedthat the designation and amount thereof and the powers, thatpreferences and relative, if Borrower notifies Agent that Borrower requests an amendment to any provision hereof to eliminate participating, optional and other special rights of the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation shares of such provision (series, and the qualifications, limitations or if 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 restrictions thereof are 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.follows:
Appears in 1 contract
Interpretive Matters. Wherever from Any reference in this Agreement to a “Section”, “Article” or Schedule refers to the corresponding Section, Article or Schedule of or to this Agreement, unless the context indicates otherwise. The headings of Articles and Sections herein are provided for convenience of reference only and are not intended to affect the construction or interpretation of this Agreement. The words “including,” “includes” or “include” are to be read as listing non-exclusive examples of the matters referred to, whether or not words such as “without limitation” or “but not limited to” are used in each instance. Where this Agreement states that a Party “shall,” “will” or “must” perform in some manner or otherwise act or omit to act, it appears appropriatemeans that the party is legally obligated to do so in accordance with the terms of this Agreement. Any reference to a statute, each term stated rule or regulation is deemed also to refer to any amendments or successor legislation, rule or regulation as in either effect at the relevant time. Any reference to a contract or other document as of a given date means the contract or other document as amended, supplemented and modified from time to time through such date. Any words (including initial capitalized terms defined herein) in the singular or plural shall will be held to include the singular plural and vice versa. The terms “hereof,” “herein” and “herewith” and words of similar import will, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement. All references herein to “$” or dollars will refer to United States dollars. All accounting terms not otherwise defined herein have the pluralmeanings given to them in accordance with GAAP. This Agreement has been freely and fairly negotiated by the Parties. If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties, no presumption or burden of proof will arise favoring or disfavoring any Party because of the authorship of any provision of this Agreement and pronouns stated prior drafts of this Agreement will be disregarded in interpreting this Agreement. If the date upon or by which any party hereto is required to perform any covenant or obligation hereunder falls on a day that is not a Business Day, then such date of performance will be automatically extended to the next Business Day thereafter. Unless the context otherwise requires, (a) “or” is disjunctive but not necessarily exclusive and (b) the use in this Agreement of a pronoun in reference to a Party hereto includes the masculine, feminine or neuter gender shall include neuter, as the masculinecontext may require. If, feminine and neuter genders. The words “including”as often as, “includes” and “include” shall be deemed to be followed by the words “without limitation”; the word “or” there is not exclusive; references to Persons include their respective successors and assigns (to the extent and only to the extent permitted by the Loan Documents) or, any change in the case outstanding shares of governmental PersonsCommon Stock, Persons succeeding to the relevant functions of such Persons; and all references to agreements and instruments, statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Party, such words are intended to signify that such Credit Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition, for purposes hereof, (a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (b) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness; (c) the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of a Person dated such date prepared in accordance with GAAP; (d) the principal amount of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory redemption other equity securities of Wabtec by reason of a share dividend or mandatory repurchase price with respect to such Preferred Stockdistribution, whichever is greater; and (e) unless otherwise specified hereinor stock split or other subdivision, 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 GAAP; provided, that, if Borrower notifies Agent that Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in connection with a combination of stock, recapitalization, reclassification, merger, amalgamation, arrangement, consolidation or other reorganization or other similar capital transaction, appropriate anti-dilution adjustments consistent with the application thereof on the operation of such provision (or if 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 anti-dilution provisions otherwise set forth in the application thereof, then such provision shall Certificate of Designation for the Preferred Shares will be interpreted on made in the basis provisions of GAAP this Agreement so as in effect to fairly and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewithequitably preserve the rights and obligations set forth herein.
Appears in 1 contract
Sources: Shareholders Agreement (Westinghouse Air Brake Technologies Corp)
Interpretive Matters. Wherever from 22.1 The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.
22.2 The headings and captions herein are included for convenience of reference only and shall be ignored in the context it appears appropriateconstruction or interpretation hereof.
22.3 References to Articles, each Sections or Exhibits are to Articles and Sections of, and Exhibits to, this Agreement unless otherwise specified.
22.4 All Exhibits annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein.
22.5 Any capitalized terms used in any Exhibit but not otherwise defined therein shall have the meaning as defined in this Agreement.
22.6 Where there is any inconsistency between the definitions set out in this Section 22 and the definitions set out in any other Section or any Schedule (including the Seller Disclosure Schedule) or Exhibit, then, for the purposes of construing such Section, Schedule or Exhibit, the definitions set out in such Section, Schedule or Exhibit shall prevail.
22.7 The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other theory extends and such phrase shall not mean “if”.
22.8 The Parties have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.
22.9 Any singular term stated in either the singular or plural this Agreement shall be deemed to include the singular and the plural, and pronouns stated in any plural term the masculine, feminine or neuter singular.
22.10 References to one gender shall include all genders.
22.11 Whenever the masculine, feminine and neuter genders. The words “includinginclude”, “includes” and or “includeincluding” are used in this Agreement, they shall be deemed to be followed by the words “without limitation, but not limited to,”; , whether or not they are in fact followed by those words or words of like import.
22.12 “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form.
22.13 References to any statute shall be deemed to refer to such statute as amended from time to time and to any rules or regulations promulgated thereunder.
22.14 References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms thereof.
22.15 References to any Person include the successors and permitted assigns of that Person.
22.16 References from or through any date mean, unless otherwise specified, from and including or through and including, respectively.
22.17 References to “$” are to United States dollars.
22.18 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.
22.19 The word “or” is not exclusive; references to Persons include their respective successors and assigns (to , unless the extent and only to the extent permitted by the Loan Documents) or, in the case of governmental Persons, Persons succeeding to the relevant functions of such Persons; and all references to agreements and instruments, statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Party, such words are intended to signify that such Credit Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition, for purposes hereof, (a) an accounting term not context otherwise defined has the meaning assigned to it in accordance with GAAP; (b) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness; (c) the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of a Person dated such date prepared in accordance with GAAP; (d) the principal amount of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater; and (e) unless requires.
22.20 Unless otherwise specified herein, all accounting undefined terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required given the meaning customarily applied to be delivered hereunder shall be prepared in accordance with GAAP; provided, that, if Borrower notifies Agent that Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or such terms in the application thereof on the operation of such provision (or if 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 railroad industry 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 herewithUnited States.
Appears in 1 contract
Sources: Railway Services Agreement (Fortress Transportation & Infrastructure Investors LLC)
Interpretive Matters. Wherever from Any reference in this Agreement to a “Section”, “Article” or “Schedule” refers to the corresponding Section, Article or Schedule of or to this Agreement, unless the context indicates otherwise. The headings of Articles herein are provided for convenience of reference only and are not intended to affect the construction or interpretation of this Agreement. The words “including,” “includes” or “include” are to be read as listing non-exclusive examples of the matters referred to, whether or not words such as “without limitation” or “but not limited to” are used in each instance. Where this Agreement states that a Party “shall,” “will” or “must” perform in some manner or otherwise act or omit to act, it appears appropriatemeans that the Party is legally obligated to do so in accordance with the terms of this Agreement. Any reference to a statute, each term stated rule or regulation is deemed also to refer to any amendments or successor legislation, rule or regulation as in either effect at the relevant time. Any reference to a contract or other document as of a given date means the contract or other document as amended, supplemented and modified from time to time through such date. Any words (including initial capitalized terms defined herein) in the singular or plural shall will be held to include the singular plural and vice versa. The terms “hereof,” “herein” and “herewith” and words of similar import will, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement. All accounting terms not otherwise defined herein have the pluralmeanings given to them in accordance with GAAP. This Agreement has been freely and fairly negotiated by the Parties. If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties, no presumption or burden of proof will arise favoring or disfavoring any Party because of the authorship of any provision of this Agreement and pronouns stated prior drafts of this Agreement will be disregarded in interpreting this Agreement. If the date upon or by which any Party hereto is required to perform any covenant or obligation hereunder falls on a day that is not a Business Day, then such date of performance will be automatically extended to the next Business Day thereafter. Unless the context otherwise requires, (a) “or” is disjunctive but not necessarily exclusive and (b) the use in this Agreement of a pronoun in reference to a Party hereto includes the masculine, feminine or neuter gender shall include neuter, as the masculine, feminine and neuter genders. The words “including”, “includes” and “include” shall be deemed to be followed by the words “without limitation”; the word “or” is not exclusive; references to Persons include their respective successors and assigns (to the extent and only to the extent permitted by the Loan Documents) or, in the case of governmental Persons, Persons succeeding to the relevant functions of such Persons; and all references to agreements and instruments, statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Party, such words are intended to signify that such Credit Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition, for purposes hereof, (a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (b) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness; (c) the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of a Person dated such date prepared in accordance with GAAP; (d) the principal amount of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater; and (e) 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 GAAP; provided, that, if Borrower notifies Agent that Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if 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 herewithcontext may require.
Appears in 1 contract
Interpretive Matters. Wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, feminine and neuter genders. The words “including”, “includes” and “include” shall be deemed to be followed by the words “without limitation”; the word “or” is not exclusive; references to Persons include their respective successors and assigns (to the extent and only to the extent permitted by the Loan Documents) or, in the case of governmental Persons, Persons succeeding to the relevant functions of such Persons; and all references to agreements and instruments, statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Party, such words are intended to signify that such Credit Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition, for purposes hereof, (a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (b) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness; (c) the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of a Person dated such date prepared in accordance with GAAP; (d) the principal amount of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater; and (e) 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 GAAP; provided, that, if Borrower notifies Agent that Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Escrow Funding Date in GAAP or in the application thereof on the operation of such provision (or if 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.
Appears in 1 contract
Sources: Credit Agreement (Forward Air Corp)
Interpretive Matters. Wherever from For purposes of this Agreement, each of the Company and the Rights Agent agrees that: (a) whenever the context it appears appropriaterequires, the singular number shall include the plural, and vice versa; (b) the word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and does not simply mean “if”; (c) where a word or phrase is defined in this Agreement, each of its other grammatical forms has a corresponding meaning unless the context otherwise requires; (d) the word “or” shall be deemed to mean “or” unless the Company determines the context requires otherwise; (e) the meaning assigned to each capitalized term stated defined and used in either the singular or plural shall include this Agreement is equally applicable to both the singular and the pluralplural forms of such term, and pronouns stated in words denoting any gender include all genders; and (f) the masculine, feminine or neuter gender shall include the masculine, feminine and neuter genders. The words “including”, “includesinclude” and “includeincluding,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.” The parties hereto have caused this Agreement to be duly executed as of the day and year first above written. By: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ Title: Chief Executive Officer Name: ▇▇▇▇▇ ▇▇▇▇▇ Title: Vice President The undersigned, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, does hereby certify:
1. That she is duly elected and acting Chief Executive Officer of Heliogen, Inc., a Delaware corporation (the “Corporation”; the word “or” is not exclusive; references to Persons include their respective successors and assigns ().
2. That pursuant to the extent and only to authority conferred upon the extent permitted Board of Directors of the Corporation (the “Board”) by the Loan Documents) orSecond Amended and Restated Certificate of Incorporation, in the case of governmental Personsas amended, Persons succeeding to the relevant functions of such Persons; and all references to agreements and instruments, statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to said Corporation, the knowledge said Board on April 16, 2023 adopted the following resolutions (or an analogous phrasethe “Resolutions”) creating a series of any Credit Party, such words are intended to signify that such Credit Party has actual knowledge or awareness 2,000,000 shares of a particular fact or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition, for purposes hereof, Preferred Stock designated as Series A Junior Participating Preferred Stock (a“Preferred Stock”) an accounting term (capitalized terms not otherwise defined has herein shall have the meaning assigned meanings ascribed to it them in accordance with GAAP; (b) unsecured Indebtedness shall not be deemed the Resolutions): “RESOLVED, that pursuant to be subordinate or junior to secured Indebtedness merely the authority vested in the Board by virtue the Second Amended and Restated Certificate of its nature Incorporation of the Corporation, as unsecured Indebtedness; (c) amended, the principal amount of any non-interest bearing or other discount security at any date shall be Board does hereby provide for the principal amount thereof that would be shown on a balance sheet issue of a Person dated such date prepared in accordance with GAAP; (d) the principal amount series of any Preferred Stock shall be (i) and does hereby fix and herein state and express the maximum liquidation value designations, powers, preferences and relative and other special rights and the qualifications, limitations and restrictions of such series of Preferred Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater; and (e) 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 GAAP; provided, that, if Borrower notifies Agent that Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if 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.follows:
Appears in 1 contract
Sources: Rights Agreement (Heliogen, Inc.)
Interpretive Matters. Wherever from For purposes of this Agreement, each of the Company and the Rights Agent agrees that: (a) whenever the context it appears appropriaterequires, the singular number shall include the plural, and vice versa; (b) the word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and does not simply mean “if”; (c) where a word or phrase is defined in this Agreement, each of its other grammatical forms has a corresponding meaning unless the context otherwise requires; (d) the word “or” shall be deemed to mean “or” unless the Company determines the context requires otherwise; (e) the meaning assigned to each capitalized term stated defined and used in either the singular or plural shall include this Agreement is equally applicable to both the singular and the pluralplural forms of such term, and pronouns stated in words denoting any gender include all genders; and (f) the masculine, feminine or neuter gender shall include the masculine, feminine and neuter genders. The words “including”, “includesinclude” and “includeincluding,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.” The parties hereto have caused this Agreement to be duly executed as of the day and year first above written. By: /s/ W. ▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: W. ▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Senior Vice President and General Counsel Title: Senior Vice President The undersigned, W. ▇▇▇▇▇▇ ▇▇▇▇▇, does hereby certify:
1. That he is duly elected and acting Senior Vice President, General Counsel, Chief Compliance Officer, Corporate Secretary and member of the Office of the President of Neuronetics, Inc., a Delaware corporation (the “Corporation”; the word “or” is not exclusive; references to Persons include their respective successors and assigns ().
2. That pursuant to the extent authority conferred upon the Board of Directors by the Ninth Amended and only Restated Certificate of Incorporation, as amended, of the said Corporation, the said Board of Directors of the Corporation on April 7, 2020 adopted the following resolutions creating a series of 50,000 shares of Preferred Stock designated as Series A Junior Participating Preferred Stock: RESOLVED, that pursuant to the extent permitted authority vested in the Board of Directors of the corporation by the Loan Documents) orNinth Amended and Restated Certificate of Incorporation, in as amended, the case Board of governmental PersonsDirectors does hereby provide for the issue of a series of Preferred Stock of the Corporation and does hereby fix and herein state and express the designations, Persons succeeding to powers, preferences and relative and other special rights and the relevant functions qualifications, limitations and restrictions of such Persons; and all references to agreements and instruments, statutes and related regulations shall include any amendments series of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Party, such words are intended to signify that such Credit Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition, for purposes hereof, (a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (b) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness; (c) the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of a Person dated such date prepared in accordance with GAAP; (d) the principal amount of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater; and (e) 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 GAAP; provided, that, if Borrower notifies Agent that Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if 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.follows:
Appears in 1 contract
Sources: Rights Agreement (Neuronetics, Inc.)
Interpretive Matters. Wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, feminine and neuter genders. The words “including”, “includes” and “include” shall be deemed to be followed by the words “without limitation”; the word “or” is not exclusive; references to Persons include their respective successors and assigns (to the extent and only to the extent permitted by the Loan Documents) or, in the case of governmental Persons, Persons succeeding to the relevant functions of such Persons; and all references to agreements and instruments, statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Party, such words are intended to signify that such Credit Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition, for purposes hereof, (a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (b) “or” is not exclusive; (c) words in the singular include the plural and words in the plural include the singular; (d) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Secured Indebtedness merely by virtue of its nature as unsecured Indebtedness; (ce) the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of a Person dated such date prepared in accordance with GAAP; (df) the principal amount of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater; and (eg) 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 GAAP; provided, that, if Borrower notifies Agent that Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if 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.
Appears in 1 contract
Sources: Senior Unsecured Bridge Term Loan Credit Agreement (XPO Logistics, Inc.)
Interpretive Matters. (a) All other undefined terms contained in any of the Loan Documents shall, unless the context indicates otherwise, have the meanings provided for by the Code as in effect in the State of New York to the extent the same are used or defined therein. Unless otherwise specified, references in this Agreement or any of the Appendices to a Section, subsection or clause refer to such Section, subsection or clause as contained in this Agreement. The words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole, including all Annexes, Exhibits and Schedules, as the same may from time to time be amended, restated, modified or supplemented, and not to any particular section, subsection or clause contained in this Agreement or any such Annex, Exhibit or Schedule.
(b) Wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, feminine and neuter genders. The words “including”, “includes” and “include” shall be deemed to be followed by the words “without limitation”; the word “or” is not exclusive; references to Persons include their respective successors and assigns (to the extent and only to the extent permitted by the Loan Documents) or, in the case of governmental Persons, Persons succeeding to the relevant functions of such Persons; and all references to agreements and instruments, statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Loan Party, such words are intended to signify that such Credit Loan Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Loan Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition.
(c) Unless otherwise specifically provided herein, for purposes hereof, (a) an any accounting term not otherwise defined has used in this Agreement shall have the meaning assigned to it customarily given such term in accordance with GAAP, and all financial computations hereunder shall be computed in accordance with GAAP consistently applied. That certain items or computations are explicitly modified by the phrase “in accordance with GAAP” shall in no way be construed to limit the foregoing. If any “Accounting Changes” (as defined below) occur and such changes result in a change in the calculation of the financial covenants, standards or terms used in this Agreement or any other Loan Document, then Borrower, Administrative Agent and Lenders 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 Borrower’s and its Subsidiaries’ financial condition shall be the same after such Accounting Changes as if such Accounting Changes had not been made; provided, however, that the agreement of Requisite Lenders to any required amendments of such provisions shall be sufficient to bind all Lenders. “Accounting Changes” means (a) changes in 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 successor thereto or any agency with similar functions), (b) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely changes in accounting principles concurred in by virtue of its nature as unsecured Indebtednessthe Borrower’s certified public accountants; (c) purchase accounting adjustments under A.P.B. 16 and/or 17 and EITF 88-16, and the principal amount application of the accounting principles set forth in FASB 109, including the establishment of reserves pursuant thereto and any non-interest bearing subsequent reversal (in whole or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet in part) of a Person dated such date prepared in accordance with GAAPreserves; and (d) the principal amount reversal of any Preferred Stock shall be (i) reserves established as a result of purchase accounting adjustments. If Administrative Agent, Borrower and Requisite Lenders agree upon the maximum liquidation value required amendments, then after appropriate amendments have been executed and the underlying Accounting Change with respect thereto has been implemented, any reference to GAAP contained in this Agreement or in any other Loan Document shall, only to the extent of such Preferred Stock or Accounting Change, refer to GAAP, consistently applied after giving effect to the implementation of such Accounting Change. If Administrative Agent, Borrower and Requisite Lenders cannot agree upon the required amendments within thirty (ii30) days following the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stockdate of implementation of any Accounting Change, whichever is greater; and (e) unless otherwise specified herein, then all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, Financial Statements delivered and all calculations of financial statements required to be delivered hereunder shall be prepared covenants and other standards and terms in accordance with GAAP; provided, that, if Borrower notifies Agent that Borrower requests an amendment to any provision hereof to eliminate this Agreement and the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if 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 other Loan Documents shall be interpreted on prepared, delivered and made without regard to 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 herewithunderlying Accounting Change.
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