Definitions

Definitions. As used in this Agreement, the following terms shall have the following meanings: a. "Business Day" means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close. b. "Investor" means the Investor, any transferee or assignee thereof to whom the Investor assigns its rights under this Agreement in accordance with... Section 9 and who agrees to become bound by the provisions of this Agreement, and any transferee or assignee thereof to whom a transferee or assignee assigns its rights under this Agreement in accordance with Section 9 and who agrees to become bound by the provisions of this Agreement. c. "Person" means any individual or entity including, but not limited to, any corporation, a limited liability company, an association, a partnership, an organization, a business, an individual, a governmental or political subdivision thereof or a governmental agency. d. "Register," "Registered," and "Registration" refer to a registration effected by preparing and filing one or more registration statements of the Company in compliance with the Securities Act and/or pursuant to Rule 415 under the Securities Act or any successor rule providing for the offering of securities on a continuous basis ("Rule 415"), and the declaration or ordering of effectiveness of such registration statement(s) by the United States Securities and Exchange Commission (the "SEC"). e. "Registrable Securities" means all of the (i) Shares (as defined in the Purchase Agreement), (ii) any and all shares of capital stock issued or issuable with respect to each of the Transaction Documents, and (iii) any and all shares of capital stock issued or issuable with respect to the Execution Shares and the Purchase Agreement as a result of any stock split, stock dividend, recapitalization, exchange or similar event or otherwise, without regard to any limitation on purchases under the Purchase Agreement. f. "Registration Statement" means one or more registration statements of the Company on Form S-1 covering the resale of the Registrable Securities including the Initial Registration Statement and any New Registration Statement or Other Registration Statement (each as defined herein). View More

Definitions. Capitalized terms used in this Amendment and not otherwise defined herein will have the meanings given such terms in the Agreement.

Definitions. Customers means any individual or entity to whom Units are or may be distributed by U&I, including, without limitation, distributors, resellers and retailers. Customer Specific Programs means the costs associated with marketing and merchandising programs that are either required by Customer or mutually agreed to between U&I and Customer. Customer Event Fees means the costs associated with attending or exhibiting at Customer specific events. Defective Returns means any returns from Customers in... accordance with their defective return policy. Distribution Fee means an amount equal to the Net Proceeds multiplied by the applicable [***]. End Users means those persons who purchase for use one or more Units from Customers. Future Authorized Deductions means all price protection and returns that have been offered to retail customers but not yet deducted from receipts. Imminent Deductions Hold Back means a hold back from Gross Receipts based on potential deductions from retail. NASCAR Royalty shall be an amount equal to [***] of the Wholesale Price minus the Cost of Goods. Marketing Development Fund or MDF means the costs associated with the marketing and merchandising of each Version at Customer locations. Net Proceeds means total Payments received in any given calendar month, minus the following paid in such calendar month: (i) Cost of Goods, (ii) MDF, (iii) Defective Returns and Pre-Approved Returns, (iv) Customer Specific Programs, (v) Customer Event Fees, (vi) Placement Fees, (vii) Price Protection, (viii) Future Authorized Deductions, (ix) Imminent Deductions Hold Back, (x) NASCAR Royalty, and the (xi) Reserve. Payments means wholesale proceeds actually received by U&I from the distribution of the product in any given calendar month. Placement Fees means the costs associated with securing retail shelf placement at Customer. Price Protection means price reductions granted to Customers after order and delivery of Units to the Customer to facilitate retail sale efforts. U&I shall be entitled to Price Protection for the Title or Product to ensure it remains on the shelf with Customers and continues to sell through to End Users at a satisfactory rate. Pre-Approved Returns means Units of any Version of the Title or Product returned by a Customer that are pre-approved for return by Publisher/Manufacturer. To the extent that there are Returns of any Units, fifty percent (50%) of the Distribution Fee attributable to said Returns shall be credited to Publisher/Manufacturer and fifty percent (50%) of the Distribution Fee attributable to said Returns shall be retained by U&I as a restocking fee. Reserve means an amount equal to the invoice value of Units still held and not yet sold through by Customers to End Users. Term means the period during which this Agreement shall be in effect, as set forth in Section 6 below. Territory shall be set forth in the attached Exhibit A, as may be amended from time to time. Title or Product means each software or accessory product published or manufactured by Publisher/Manufacturer and listed in the attached Exhibit A, as may be amended from time to time, together with all printed artwork, booklets, manuals, pamphlets or other materials, prepared by or on behalf of Publisher/Manufacturer, which refer to or relate to each respective Title or Product. Unit means one copy of one Version embodied on any storage device embodied on CD-ROM, DVD, cartridge, or any other tangible medium now known or later devised, fully packaged as a finished good and ready for shipment to Customers. Version means the Title or Product as designed to operate with software, console or accessory or other interactive media environment or platform now known or later devised. Examples of Versions include software or accessory products developed for: the IBM PC platform utilizing the Windows XP operating system; the Apple Macintosh platform; and console platform versions such as Sony Playstation products, Sony Playstation 4, PSP, DSi, 3DS, Microsoft Xbox One, Microsoft Xbox 360, and Nintendo Wii. View More

Definitions. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires, (a) the terms defined in this Section have the meanings assigned to them in this Section and include the plural as well as the singular; (b) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles as at the time applicable; and (c) all references in this Agreement to designated 'Sections' and... other subdivisions are to the designated Sections and other subdivisions of this Agreement: View More

Definitions. As used in this Agreement, the following terms shall have the meanings set forth in this Section 1. Terms used but not otherwise defined in this Agreement that are defined in Article 9 of the UCC (such as "account", "chattel paper", "commercial tort claim", "deposit account", "document", "equipment", "fixtures", "general intangibles", "goods", "instruments", "inventory", "investment property", "letter-of-credit rights", "proceeds" and "supporting obligations") shall have the respective meanings... given such terms in Article 9 of the UCC. Terms used herein but not otherwise defined in this Agreement or in the UCC shall have the respective meanings given such terms in the Purchase Agreement. (a) "Collateral" means all personal property of the Debtors, whether presently owned or existing or hereafter acquired or coming into existence, wherever situated, and all additions and accessions thereto and all substitutions and replacements thereof, and all proceeds, products and accounts thereof, including, without limitation, all proceeds from the sale or transfer of the Collateral and of insurance covering the same and of any tort claims in connection therewith, and all dividends, interest, cash, notes, securities, equity interests or other property at any time and from time to time acquired, receivable or otherwise distributed in respect of, or in exchange for, any or all of the Pledged Securities (as defined below): (i) All goods, including, without limitation, (A) all machinery, equipment, computers, motor vehicles, trucks, tanks, boats, ships, appliances, furniture, special and general tools, fixtures, test and quality control devices and other equipment of every kind and nature and wherever situated, together with all documents of title and documents representing the same, all additions and accessions thereto, replacements therefor, all parts therefor, and all substitutes for any of the foregoing and all other items used and useful in connection with any Debtor's businesses and all improvements thereto; and (B) all inventory; (ii) All contract rights and other general intangibles, including, without limitation, all partnership interests, membership interests, stock or other securities, rights under any of the Organizational Documents, agreements related to the Pledged Securities, licenses, distribution and other agreements, computer software (whether "off-the-shelf", licensed from any third party or developed by any Debtor), computer software development rights, leases, franchises, customer lists, quality control procedures, grants and rights, goodwill, Intellectual Property and income tax refunds; (iii) All accounts, together with all instruments, all documents of title representing any of the foregoing, all rights in any merchandising, goods, equipment, motor vehicles and trucks which any of the same may represent, and all right, title, security and guaranties with respect to each account, including any right of stoppage in transit; (iv) All documents, letter-of-credit rights, instruments and chattel paper; (v) All commercial tort claims; (vi) All deposit accounts and all cash (whether or not deposited in such deposit accounts); (vii) All investment property; (viii) All supporting obligations; (ix) All files, records, books of account, business papers, and computer programs; and (x) The products and proceeds of all of the foregoing Collateral set forth in clauses (i)-(ix) above. Without limiting the generality of the foregoing, the "Collateral" shall include all investment property and general intangibles respecting ownership and/or other equity interests in each Subsidiary Guarantor, including, without limitation, the shares of capital stock and the other equity interests listed on Schedule H hereto (as the same may be modified from time to time pursuant to the terms hereof), and any other shares of capital stock and/or other equity interests of any other direct or indirect subsidiary of any Debtor obtained in the future, and, in each case, all certificates representing such shares and/or equity interests and, in each case, all rights, options, warrants, stock, other securities and/or equity interests that may hereafter be received, receivable or distributed in respect of, or exchanged for, any of the foregoing and all rights arising under or in connection with the Pledged Securities, including, but not limited to, all dividends, interest and cash. 2 Notwithstanding the foregoing, nothing herein shall be deemed to constitute an assignment of any asset which, in the event of an assignment, becomes void or voidable by operation of applicable law or the assignment of which is otherwise prohibited by applicable law (in each case to the extent that such applicable law is not overridden by Sections 9-406, 9-407 and/or 9-408 of the UCC or other similar applicable law); provided, however, that to the extent permitted by applicable law and solely to the extent doing so does not void or invalidate such asset, this Agreement shall create a valid security interest in such asset and, to the extent permitted by applicable law, this Agreement shall create a valid security interest in the proceeds of such asset. (b) "Intellectual Property" means the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including, without limitation, (i) all copyrights arising under the laws of the United States, any other country or any political subdivision thereof, whether registered or unregistered and whether published or unpublished, all registrations and recordings thereof, and all applications in connection therewith, including, without limitation, all registrations, recordings and applications in the United States Copyright Office, (ii) all letters patent of the United States, any other country or any political subdivision thereof, all reissues and extensions thereof, and all applications for letters patent of the United States or any other country and all divisions, continuations and continuations-in-part thereof, (iii) all trademarks, trade names, corporate names, trade dress, service marks, logos, domain names and other source or business identifiers, and all goodwill associated therewith, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications in connection therewith, whether in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof or any other country or any political subdivision thereof, or otherwise, and all common law rights related thereto, (iv) all trade secrets arising under the laws of the United States, any other country or any political subdivision thereof, (v) all rights to obtain any reissues, renewals or extensions of the foregoing, (vi) all licenses for any of the foregoing, and (vii) all causes of action for infringement of the foregoing. (c) "Majority in Interest" means, at any time of determination, the majority in interest (based on then-outstanding principal amounts of the Notes at the time of such determination) of the Purchasers. (d) "Necessary Endorsement" means undated stock powers endorsed in blank or other proper instruments of assignment duly executed and such other instruments or documents as the Agent may reasonably request. 3 (e) "Obligations" means all of the liabilities and obligations (primary, secondary, direct, contingent, sole, joint or several) due or to become due, or that are now or may be hereafter contracted or acquired, or owing to, of any Debtor to the Secured Parties, including, without limitation, all obligations under this Agreement, the Notes, the Purchase Agreement and any other instruments, agreements or other documents executed and/or delivered in connection herewith or therewith (excluding the Warrants), in each case, whether now or hereafter existing, voluntary or involuntary, direct or indirect, absolute or contingent, liquidated or unliquidated, whether or not jointly owed with others, and whether or not from time to time decreased or extinguished and later increased, created or incurred, and all or any portion of such obligations or liabilities that are paid, to the extent all or any part of such payment is avoided or recovered directly or indirectly from any of the Secured Parties as a preference, fraudulent transfer or otherwise as such obligations may be amended, supplemented, converted, extended or modified from time to time. Without limiting the generality of the foregoing, the term "Obligations" shall include, without limitation: (i) principal of, and interest on the Notes and the loans extended pursuant thereto; (ii) any and all other fees, prepayment charges, indemnities, costs, obligations and liabilities of the Debtors from time to time under or in connection with this Agreement, the Notes, the Purchase Agreement and any other instruments, agreements or other documents executed and/or delivered in connection herewith or therewith (excluding the Warrants); and (iii) all amounts (including but not limited to post-petition interest) in respect of the foregoing that would be payable but for the fact that the obligations to pay such amounts are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving any Debtor. (f) "Organizational Documents" means with respect to any Debtor, the documents by which such Debtor was organized (such as a certificate of incorporation, certificate of limited partnership or articles of organization, and including, without limitation, any certificates of designation for preferred stock or other forms of preferred equity) and which relate to the internal governance of such Debtor (such as bylaws, a partnership agreement or an operating, limited liability or members agreement). (g) "Permitted Liens" shall have the meaning ascribed to such term in the Notes. (h) "Pledged Interests" shall have the meaning ascribed to such term in Section 4(j). (i) "Pledged Securities" shall have the meaning ascribed to such term in Section 4(i). (j) "UCC" means the Uniform Commercial Code of the State of New York and or any other applicable law of any state or states which has jurisdiction with respect to all, or any portion of, the Collateral or this Agreement, from time to time. It is the intent of the parties that defined terms in the UCC should be construed in their broadest sense so that the term "Collateral" will be construed in its broadest sense. Accordingly if there are, from time to time, changes to defined terms in the UCC that broaden the definitions, they are incorporated herein and if existing definitions in the UCC are broader than the amended definitions, the existing ones shall be controlling. View More

Definitions. For all purposes of this Agreement, the following terms shall have the following meanings: "AAR" means the Association of American Railroads and any successor organization or administrative agency performing substantially the same functions as the AAR as of the date hereof. "Agreement" has the meaning set forth in the Preamble to this Agreement. "Assignment and Assumption Agreement" means the Assignment and Assumption Agreement between Seller and Buyer dated as of the Closing Date and... substantially in the form attached hereto as Exhibit G. "Assumed Obligations" shall mean Seller's obligations as: (i) owner of the Purchased Assets; and/or (ii) lessor, of the Purchased Assets under the Lease Documents, in either case, with respect to the period on and after the Closing Date. "Badger Mining Litigation" means that certain matter referred to as CAI Rail, Inc. vs. Badger Mining Corporation, as filed in the Southern District of New York, Case No. 1:20-cv-04644. "Bill of Sale" shall mean and refer to the document substantially in the form attached hereto as Exhibit C. "Buyer" has the meaning set forth in the Preamble to this Agreement. "Buyer Indemnified Parties" is defined in Section 31(b). "Buyer Affiliate" has the meaning set forth in the Preamble to this Agreement. "Car Hire" means any hourly charge paid by a railroad for its use of any Unit. "Casualtied Unit" is defined in Section 13. "Claim" is defined in Section 31(a). "Closing Date" is defined in Section 12. "Cut-off Date" shall mean January 1, 2021. "Equipment Lease Transactions" shall mean the transactions pursuant to which the Units are being leased to Lessees under the Lease Documents. "Excluded Other Contracts" is defined in Section 2(a)(1)(C). "Exclusivity Letter" is defined in Section 9(c). "Funds Flow Memorandum" is defined in Section 3. "Governmental Authority" means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of law), or any arbitrator, court or tribunal of competent jurisdiction. "Governmental Order" means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority. "HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. "HSR Act Condition" is defined in Section 12(e)(i). "Indemnified Party" is defined in Section 31(d). "Indemnifying Party" is defined in Section 31(d). 2 "Lease Confirmation" means a Lease Confirmation substantially in the form attached hereto as Exhibit E, with such changes as may be approved by Buyer in its reasonable discretion, executed by the relevant Lessee. "Lease Documents" shall mean the agreements, documents and instruments listed on Exhibit A-1 and summarized (with respect to certain terms) on Exhibit A-2, and any and all supplements and amendments related thereto (whether or not executed), but only with respect to, or relating to, the Units. Lease Documents shall include any lease supplement, schedule or rider to a master lease agreement by which the master lease agreement is incorporated into such supplement, schedule or rider. "Lessee" has the meaning set forth in the Recitals to this Agreement. "Lien" means any lien, charge, demand, pledge, security interest or other encumbrance, or any other claim or right of any person. "Marks" means all railcar reporting and identification marks which are registered in the name of Seller under the Uniform Machine Language Equipment Register or any succeeding registry of the AAR, as more particularly set forth on Schedule A attached hereto, together with all goodwill associated therewith. "Memorandum of Assignment of Lease" shall mean and refer to the document substantially in the form attached hereto as Exhibit D. "Other Contracts" means, with respect to any Unit, each of the car storage agreements, repair and maintenance agreements, mark administration agreements, Car Hire management agreements and other agreements set forth on Schedule B attached hereto, excluding Excluded Other Contracts. "Other Items" means, except to the extent expressly contemplated as a Retained Interest, all books and records and information (whether stored in electronic media or otherwise) pertaining to any of the Units, Leases and/or Related Assets. "Permitted Liens" means (i) Liens created or permitted by the Lease Documents, and for which other parties to the Lease Documents indemnify the lessor thereunder, its successors and assigns, pursuant to the Lease Documents and (ii) Liens created or incurred by Buyer or by persons claiming by, through or under Buyer. "Pre-Closing Period" is defined in Section 9(a). "Prior Claim" is defined in Section 4(a). "Purchase Price" is defined in Section 3. "Purchased Assets" is defined in Section 2(a). "Purchased Other Contracts" means all Other Contracts (other than the Excluded Other Contracts). 3 "Railroad Mileage Credits" means the mileage credit payments made by the railroads under their applicable tariffs to the owner of the Marks on the Units. "Related Assets" means, with respect to the Purchased Assets: (i) all licenses, manufacturer's warranties set forth on Schedule C and other warranties and all other rights and obligations related to any Unit or arising out of the use or operation of such Unit; (ii) all Railroad Mileage Credits and Car Hire payments attributable to each Unit; (iii) all (A) Other Contracts relating to any Unit and all amendments, additions and supplements with respect thereto and, (B) except for the Retained Interest and as otherwise provided in Sections 4 and 13 hereof, all claims (whether choate or inchoate, known or unknown, or contingent or otherwise), demands, causes of action, choses in action and/or similar rights (contractual or otherwise) of any kind or nature in respect thereof, and, (C) all rights, powers, privileges, options and other benefits under or in connection with the items listed in the foregoing clauses (A) and (B) to receive moneys and other property due and to become due thereunder or pursuant to any guaranty or credit enhancement with respect thereto, including all rights, powers, privileges, options and other benefits to receive and collect rental payments, income, revenues, profits and other amounts, payments, tenders or security (including any cash collateral or letters of credit); and (iv) without duplication, any Other Items. "Retained Interest" is defined in Section 2(e). "RGC" shall mean the Registrar General of Canada and any successor to such entity. "Sale Documents" shall mean this Agreement, each Bill of Sale, each Assignment and Assumption Agreement and each Memorandum of Lease Assignment. "Seller" has the meaning set forth in the Preamble to this Agreement. "Seller Indemnified Parties" is defined in Section 31(a). "Seller Parent" has the meaning set forth in the Preamble to this Agreement. "STB" shall mean the Surface Transportation Board and any successor to such entity. "Subsequent Claims" is defined in Section 4(a). "Taxes" means all federal, state, local, foreign and other income, gross receipts, sales, use, production, ad valorem, transfer, documentary, franchise, registration, profits, license, lease, service, service use, withholding, payroll, employment, unemployment, estimated, excise, severance, environmental, stamp, occupation, premium, property (real or personal), real property gains, windfall profits, customs, duties or other taxes, fees, assessments or charges of any kind whatsoever, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties. 4 "Third Party Damages" is defined in Section 31(a). "Third Party Mark" is defined in Section 5(o)(i). "Total Purchase Price" is defined in Section 3. "UCC" means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in any applicable jurisdiction. "Unit" is defined in Section 2(a)(i)(A). View More

Definitions. The following terms used herein shall have the meanings set forth in this Section 1. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Merger Agreement (as defined below).

Definitions. The Original Indenture together with this Eleventh Supplemental Indenture are hereinafter sometimes collectively referred to as the "Indenture." For the avoidance of doubt, references to any "Section" of the "Indenture" refer to such Section of the Original Indenture as supplemented and amended by this Eleventh Supplemental Indenture. All capitalized terms which are used herein and not otherwise defined herein are defined in the Original Indenture and are used herein with the same meanings as... in the Original Indenture. View More

Definitions. The following definitions shall be applicable throughout the Plan: a. "Adjusted Stockholders' Equity" shall mean the stockholders equity of the Company at the end of any fiscal year as determined by the Company's independent auditors determined in accordance with generally accepted accounting principles as adjusted by excluding from such calculation any increase or decrease in stockholders' equity resulting from purchases or redemptions of equity securities or other derivative securities. b.... "Annual Period" means the twelve-month period representing the Company's fiscal year starting January 1 and ending December 31. c. "Award" means the amount of cash paid to a Participant under the Plan with respect to Annual Periods. d. "Award Determination Date" means the date following the end of each Annual Period that the Committee meets to review individual and Company performance, which shall in any event be no later than 30 days from the Payment Date. e. "Board" means the Company's board of directors. f. "Book Value" equals the amount of Adjusted Stockholders' Equity as set forth in the Company's consolidated financial statements, prepared in accordance with the accounting principles adopted by the Company (as set forth in the Company's Annual Report on Form 10-K for the applicable fiscal year), as of the applicable Incentive Compensation Calculation Date. Book Value as of the applicable Incentive Compensation Calculation Date shall be determined by reference to the consolidated net income and other comprehensive income of the Company, and appropriate adjustments to such Book Value shall be made for any dividends, share issuances or buybacks and other factors in accordance with Exhibit A hereto. The computations and procedures required to calculate Book Value, including without limitation, any accounting procedures used to implement any adjustments, allocations and other matters, shall be made in such reasonable manner as the Company in good faith shall determine to be appropriate and in accordance with Exhibit A hereto, and shall be subject to the approval of the Committee. g. "Committee" shall mean the Compensation Committee of the Company's Board of Directors. h. "Effective Date" means October 1, 2020. i. "Employee" means any individual, including an officer, who is a full service employee of the Company or any entity in which the Company owns more than 50% of the outstanding ownership interests entitled to vote for the election of directors or the equivalent managing body of such entity, determined on a worldwide basis. j. "High Water Mark" equals the highest Book Value after reduction for the Incentive Compensation Amount then paid into the Plan as of any preceding Incentive Compensation Calculation Date (but without giving effect to any adjustments made with respect to such Incentive Compensation Calculation Date). In the case of the first Incentive Compensation Calculation Date, such High Water Mark shall mean the Book Value as of December 31, 2019. k. "New Book Value" equals the Book Value as the most recent Award Determination Date. l. "Participant" means any individual who meets the requirements of Section 4 of the Plan. m. "Participation Date" means 90 days from the Employee's date of hire. n. "Term of the Plan" means the period during which the Plan is effective. This period shall begin on the Effective Date and end on a date to be determined in accordance with Section 10 of the Plan. View More

Definitions. (R)"Items" include documents, reports, drawings, photographs, designs, specifications, formulae, plans, samples, research or development information, prototypes, tools, equipment, proposals, marketing or sales plans, customer information, customer lists, patient lists, patient information, regulatory files, financial data, costs, pricing information, supplier information, written, printed or graphic matter, or other information and materials that concern the Company's or the Subsidiaries'... business that come into his possession or about which the Executive has knowledge by reason of his employment. View More