Definitions. Capitalized terms used and not otherwise defined herein that are defined in the Purchase Agreement shall have the meanings given such terms in the Purchase Agreement. As used in this Agreement, the following terms shall have the following meanings: "Advice" shall have the meaning set forth in Section 6(f). "Affiliate" means, with respect to any person, any other person which directly or indirectly controls, is controlled by, or is under common control with, such person. "Business Day" means a... day, other than a Saturday or Sunday, on which banks in New York City are open for the general transaction of business. "Closing" has the meaning set forth in the Purchase Agreement. "Closing Date" has the meaning set forth in the Purchase Agreement. "Commission" means the United States Securities and Exchange Commission. "Common Stock" means the common stock of the Company, par value $0.001 per share, and any securities into which such common stock may hereinafter be reclassified. "Effective Date" means the date that the Registration Statement filed pursuant to Section 2(a) is first declared effective by the Commission. "Effectiveness Deadline" means, with respect to the Initial Registration Statement or the New Registration Statement, the earlier of: (i) the 90th calendar day following the Closing Date, provided, that, if the Commission reviews and has written comments to a filed Registration Statement, then the Effectiveness Deadline under this clause (i) shall be the 120th calendar day following the Closing Date, and (ii) the fifth (5th) Trading Day following the date on which the Company is notified by the Commission that the Registration Statement will not be reviewed or is no longer subject to further review and comments and the effectiveness of the Registration Statement may be accelerated; provided, however, that if the Effectiveness Deadline falls on a Saturday, Sunday or other day that the Commission is closed for business, the Effectiveness Deadline shall be extended to the next Business Day on which the Commission is open for business.View More
Definitions. The following terms shall have the meanings set forth below when capitalized herein: "Administrator" shall mean such individual employed by Manager, at the expense of the Facility as an Operating Expense. The Administrator will be under the direct supervision of Manager, who is responsible for the daily operations of the Facility. "Annual Budget" shall have the meaning set forth in Section 2.01(o). "Base Management Fee" shall have the meaning set forth in Section 3.01. "Books and Records"... means all books and records of Manager pertaining to the Facility for the period after the Effective Date, including customer referral lists, reports, plans, projections and advertising and marketing materials and financial and accounting books and records. "Business Day" shall mean any day other than a Saturday, Sunday or legal holiday in the State of Iowa. "Code" shall have the meaning set forth in Section 6.03. "Contracts" means all agreements between Manager and any other Person, written or oral, for the provision of goods or services to the Facility. "Control" (including the correlative meanings of the terms "Controlling", "Controlled by", and "under common control with") as used with respect to Manager, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of Manager whether through the ownership of voting securities, by contract or otherwise. "Covered Revenue" shall mean all Revenues booked, recognized or recorded in the period beginning on the Effective Date and continuing through the Termination Date. "CPI" shall mean the Consumer Price Index for all items for the United States as published by the United States Department of Labor, Bureau of Labor Statistics. "Current Control Party" shall have the meaning set forth in Section 4.02(a)(iii). "Effective Date" means the date of this Agreement. "Excess Cash Flow" means NOI above the Incentive Management Fee Threshold. "Exclusion" shall have the meaning set forth in Section 5.03. "Facility Employees" shall have the meaning set forth in Section 2.06(a). "Fee Year" shall mean the calendar year. "Fixed Asset Supplies" means supply items necessary for the operation of the Facility. "FFE Reserve" means, from the Effective Date through August 31, 2013, an amount equal to the sum of Three Hundred Fifty Dollars ($350) multiplied by the total number of rental units on an annual basis, and increasing on September 1, 2013, and each anniversary thereof, by three percent (3%). "GAAP" means generally accepted accounting principles in the United States. "HIPAA" shall have the meaning set forth in Section 8.16. "Improvements" shall mean all buildings, structures and other improvements of every kind, including, without limitation, all roofs, plumbing systems, electric systems and HVAC systems, roadways, pavilions, alleyways, sidewalks, curbs, connecting tunnels, utility pipes, irrigation systems, conduits and lines (on site and off site), appurtenant to or presently situated at the Facility, and all columns and other support structures and any additions or subsequent modifications thereto. "Incentive Management Fee" shall have the meaning set forth in Section 3.02. "Incentive Management Fee Threshold" shall mean an amount equal to (a) Five Hundred Seventy-Five Thousand Dollars ($575,000) for the period between January 1, 2013 and December 31, 2013, (b) Seven Hundred Thousand Dollars ($700,000) for the period between January 1, 2014 and December 31, 2014; and (c) an amount each calendar year thereafter determined by taking an amount equal to the previous year's amount and increasing the same by the lesser of (i) three percent (3%) and (ii) CPI, prorated for any partial Fee Year during the Term. At such time as certain existing real estate tax abatements expire in the future, the parties agree to adjust the foregoing thresholds to adjust for the loss of the same, dollar for dollar. "Increased Insurance Requirements" shall have the meaning set forth in 2.05. "Insurance" shall mean all of the insurance listed in Exhibit "A" to this Agreement. "Inventories" means inventories as defined by GAAP and provisions in storerooms, medical supplies, other merchandise intended for sale, mechanical supplies, stationery and other expenses, supplies and similar items. "Landlord" has the meaning set forth in the Recitals. "Lease" has the meaning set forth in the Recitals. "Legal Requirements" means any (i) law, code, rule, ordinance or regulation applicable to Tenant, Manager and/or the Facility or the operation thereof; (ii) any order of any governmental authority having jurisdiction over Tenant, Manager and/or the Facility or the operation thereof; and (iii) any law, code, rule, regulation, bulletin, decision, ruling or opinion applicable to reimbursement by Medicare, Medicaid or any other governmental healthcare program for services or items rendered by the Facility. "Management Fees" means the Base Management Fee and Incentive Management Fee. "Manager" has the meaning set forth in the Recitals. "Manager Default" shall have the meaning set forth in Section 4.02(a). "Manager Losses" shall have the meaning set forth in Section 7.01. "Minimum Threshold Return" means (i) from January 1, 2013 through December 31, 2013, the sum of Four Hundred Eighty-Five Thousand Dollars ($485,000), (ii) from January 1, 2014 through December 31, 2014, the sum of Six Hundred Twenty-Five Thousand Dollars ($625,000) and (iii) for each calendar year thereafter, an amount determined by taking an amount equal to the previous year's amount and increasing the same by the lesser of (i) three percent (3%) and (ii) CPI. At such time as certain existing real estate tax abatements expire in the future, the parties agree to adjust the foregoing thresholds to adjust for the loss of the same, dollar for dollar. "NOI" means Revenues less Operating Expenses. "Operating Account" has the meaning set forth in Paragraph 2.01(j). "Operating Expenses" means any or all, as the context requires, of the following: (i) all costs and expenses incurred in connection with the Tenant, operation, management and maintenance of the Facility, including, without limitation, all administrative and general expenses, expenses relating to employment of employees at the Facility, advertising and business promotion expenses; (ii) Management Fees; (iii) the cost of Inventories and Fixed Asset Supplies consumed in the operation of the Facility; (iv) costs and expenses for preparation of claims and billing submissions; (v) insurance costs; (vii) all real property and personal property taxes and assessments; (vi) those costs and expenses that are expressly identified as Operating Expenses in this Agreement; (vii) budgeted costs related to accounting software fees and Manager's server utilization fees; and (viii) any other non capital costs and expenses incurred in connection with the Tenant or operation of the Facility or as are specifically provided for elsewhere in this Agreement. Operating Expenses shall not include any deductions for interest for property debt service, the FFE Reserve, or depreciation or amortization, income, franchise or similar taxes, or rent payable from Tenant to Landlord pursuant to the Lease, or costs relating to the Landlord's or Tenant's ownership structure nor shall Operating Expenses include costs incurred by Manager's or Tenant's corporate offices, including salaries, other staffing related costs, corporate overhead, and any other charges unless they are used in the direct operations of the Facility and are approved in advance in writing by the Tenant. "PEO" shall have the meaning set forth in Paragraph 2.06(a). "Person" means an individual, corporation, partnership, limited liability company, limited liability partnership, joint venture, trust or unincorporated organization, joint stock company or other similar organization, government or any political subdivision thereof, or any other legal entity. "Pooling Agreement" means that certain Pooling Agreement dated on or about the date hereof by and between Manager, Tenant and certain affiliates of Tenant. "Real Property" means the real property upon which the Facility is located and the Improvements. "Receivables" means all billed and unbilled accounts receivable, trade receivables, work in progress, notes receivable and other receivables arising out of or related to the Facility. "Revenues" shall mean, for the applicable period of time, but without duplication, all gross revenues and receipts of every kind derived by or for the benefit of Tenant, Manager or their affiliates from operating or causing the operation of the Facility and all departments and parts thereof, determined in accordance with GAAP for each accounting period (with the exception of any pass-through fees), including, but not limited to: income from both cash and credit transactions (after reasonable deductions for rent concessions or rebates given, paid or returned in ordinary course of obtaining Revenues, bad debt allowance, discounts for prompt or cash payments, refunds and credit card payment fees) from rental or subleasing of every kind; community fees; monthly occupancy fees; healthcare fees and ancillary service fees received pursuant to various agreements with residents of the Facility; license, lease and concession fees and rentals, off premises catering, if any, and parking; income from vending machines; proceeds, if any, from business interruption (but only to the extent it reimburses Tenant for lost income and not for additional or other expenses) or other loss of income insurance; club membership fees; income from food and beverage and catering sales; wholesale and retail sales of merchandise (other than proceeds from the sale of furnishings, fixtures and equipment no longer necessary to the operation of the Facility); and service charges, to the extent not distributed to Facility Employees as gratuities; all determined in accordance with GAAP; provided, however, that Revenues shall not include the following: (i) Management Fees or reimbursements paid by Tenant to Manager pursuant to this Agreement; (ii) gross receipts of revenue generated by lessees, sublessees, licensees or concessionaires; (iii) gratuities to Facility Employees; (iv) federal, state or municipal excise, sales, occupancy, use or similar taxes collected directly from residents or guests of the Facility or included as part of the sales price of any goods or services; (v) proceeds of any insurance policy (except for business interruption or loss of income insurance as provided above) or condemnation or other taking; (vi) any proceeds from any sale of the Facility or any other capital transaction; (vii) proceeds of any financing or refinancing of any debt encumbering the Facility or any portion thereof; (viii); proceeds from the disposition of furnishings, fixtures and equipment or any capital asset no longer necessary for the operation of the Facility; (ix) and interest received or accrued with respect to amounts deposited in any operating or reserve accounts of the Facility; (x) security deposits until such time as the same are applied to current fees due for services rendered for the Facility; (xi) awards of damages, settlement proceeds and other payments received by Tenant in respect of any litigation other than litigation to collect fees due for services rendered from the Facility or otherwise compensating Tenant or Landlord for lost revenue; and (xii) payments under any policy of title insurance. Any community fees or deposits or other amounts that are refunded to a resident shall be credited against Revenues during the month in which such refunds are made, if previously included in Revenues. Notwithstanding any GAAP accounting treatment requirement, for the express purpose of calculating Management Fees and Incentive Management Fees due and payable, any and all non-refundable community fees and non-refundable security deposits earned when residents move into the Facility shall be deemed earned in the month received (or reflected as a reduction in fees in the month refunded, if applicable) and included in the definition of Revenues contained in this paragraph. "Shortfall Termination Option" shall have the meaning set forth in Section 4.02(c). "Subordinated Base Management Fee" shall have the meaning set forth in Section 3.03. "Tenant" has the meaning set forth in the Recitals. "Tenant Default" shall have the meaning set forth in Section 4.02(b). "Tenant Losses" shall have the meaning set forth in Section 7.02. "Term" shall have the meaning set forth in Section 4.01. "Termination Date" means the date this Agreement terminates or expires per the terms hereof. "Termination Threshold" means (a) $60,000 for the period commencing September 1, 2012 and ending December 31, 2012; (b) $430,000 for the period commencing January 1, 2013 and ending December 31, 2013; (c) $550,000 for the period commencing January 1, 2014 and ending on December 31, 2014, and (d) for each calendar year thereafter, an determined by taking an amount equal to the previous year's amount and increasing the same by the lesser of (i) three percent (3%) and (ii) CPI. At such time as certain existing real estate tax abatements expire in the future, the parties agree to adjust the foregoing thresholds to adjust for the loss of the same, dollar for dollar. "Threshold Shortfall" shall have the meaning set forth in Section 3.03.View More
Definitions. Granting Clause; Quiet Enjoyment. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises for the Term subject to the provisions of this Lease. Tenant shall have peaceful and quiet enjoyment of the Premises during the Term against any person claiming by, through or under Landlord provided no uncured Event of Default (defined below) exists. Tenant shall have access to the Premises 24 hours per day, seven days per week, 365 days per year and the non-exclusive use of... the Common Areas (defined below) of the Project for their intended purposes and in accordance with the Rules, Regulations, and Legal Requirements (defined below). The term "Common Areas" means all areas of the Project designated for the common use by tenants.View More
Definitions. Capitalized terms used in this instrument and not otherwise defined herein shall have the meanings assigned to such terms in the Original Indenture.
Definitions. As used in this Agreement, the following terms have the definitions set forth below; provided, however, that in no event is this Agreement intended to modify any substantive provision of the Articles of Incorporation. In the event of a conflict between the terms of this Agreement and the terms of the Articles of Incorporation, the terms of the Articles of Incorporation shall control.
Definitions. Capitalized terms used but not otherwise defined herein (including the preamble and recitals hereof) shall have the meanings assigned thereto in the Existing Credit Agreement, as amended by this Amendment (as so amended, the "Credit Agreement").
