Certain Definitions Contract Clauses (4,204)

Certain Definitions. 9.1 "Business Day" means any day that is not a Saturday, Sunday, federal holiday or bank holiday in any jurisdiction in which the Maker holds a substantial portion of its assets. 9.2 "Change of Control" means any liquidation, dissolution, or winding up of the Maker, either voluntary or involuntary, and shall be deemed to be occasioned by, or to include, (i) the acquisition of the Maker by another entity by means of any transaction or series of related transactions (including, without limitation,... any stock acquisition, reorganization, merger or consolidation) unless the Maker's shareholders of record as constituted immediately prior to such acquisition or sale will, immediately after such acquisition or sale (by virtue of securities issued as consideration for the Maker's acquisition or sale or otherwise) hold at least a majority of the voting power of the surviving or acquiring entity or its direct or indirect parent entity (except that any bona fide equity or debt financing transaction for capital raising purposes shall not be deemed a Change of Control for this purpose) and (ii) a sale, exclusive license or other disposition of all or substantially all of the assets of the Maker, including a sale, exclusive license or other disposition of all or substantially all of the assets of one or more of the Maker's subsidiaries, if such assets constitute substantially all of the assets of the Maker and such subsidiaries taken as a whole. View More

Certain Definitions. As used in this Certificate, the following terms shall have the following respective meanings: "Affiliate" of any specified person means any other person directly or indirectly controlling or controlled by or under common control with such specified person. For purposes of this definition, "control" when used with respect to any person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities or otherwise; and... the term "controlling" and "controlled" having meanings correlative to the foregoing. "Business Day" shall mean any day except a Saturday, Sunday or day on which the Federal Reserve Bank of New York, New York is closed in the ordinary course of business. "Capital Stock" of any person or entity means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in the common stock or preferred stock of such person or entity, including, without limitation, partnership and membership interests. "Change of Control" means the existence or occurrence of any of the following: (a) the sale, conveyance or disposition of all or substantially all of the assets of the Company; (b) the effectuation of a transaction or series of related transactions in which more than fifty percent (50%) of the voting power of the Company is disposed of (other than as a direct result of normal, uncoordinated trading activities in the Common Stock generally); (c) the consolidation, merger or other business combination of the Company with or into any other entity, immediately following which the prior stockholders of the Company fail to own, directly or indirectly, at least fifty percent (50%) of the voting equity of the surviving entity; (d) a transaction or series of transactions in which any person or "group" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) acquires more than fifty percent (50%) of the voting equity of the Company; (e) the replacement of a majority of the Board of Directors with individuals who were not nominated or elected by at least a majority of the directors at the time of such replacement; or (f) a transaction or series of transactions that constitutes or results in a "going private transaction" (as defined in Section 13(e) of the Exchange Act and the regulations of the Commission issued thereunder). "Common Stock" means the common stock, par value $0.0001 per share, of the Company. "Conversion Shares Proceeds Amount" means all proceeds of any Conversion Shares actually sold by the Holder. "Holder" means any holder of Series E Preferred Stock, all of such holders being the "Holders." "Liquidation Event" means, whether in a single transaction or series of transactions, the voluntary or involuntary liquidation, dissolution or winding up of the Company or such Subsidiaries the assets of which constitute all or substantially all of the assets of the business of the Company and its Subsidiaries, taken as a whole. "Minimum Proceeds Amount" means Four Hundred Thousand Dollars ($400,000). 10 "Minimum Redemption Price" means Two and 64/100 Dollars ($2.64) per share. "Person" means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity or a government or any department or agency thereof. "Redemption Price" means the amount equal to the Minimum Proceeds Amount less the Conversion Shares Proceeds Amount divided by the number of both shares of Series E Preferred Stock and unsold Conversion Shares following the Redemption Trigger Period, not less than the Minimum Redemption Price. "Required Holders" means the Holders of at least a majority of the outstanding Series E Preferred Stock. "Senior Preferred Stock" shall mean the Company's Series A Convertible Preferred Stock, Series B Convertible Preferred Stock, Series C Convertible Preferred Stock and Series D Convertible Preferred Stock. "Stated Value" shall mean $2.64 per share, subject to adjustment for stock splits, stock dividends, recapitalizations, reorganizations, reclassifications, combinations, subdivisions or other similar events occurring after November 28, 2018 with respect to the Series E Preferred Stock. View More

Certain Definitions. For purposes of this Agreement, the following capitalized terms have the following meanings: 9.1 "For Cause" shall mean, in the context of a basis for termination of your employment with the Company, that: 9.1.1 you breach any obligation, duty or agreement under this Agreement, which breach is not cured or corrected within 15 days of written notice thereof from the Company; or 9.1.2 you commit any act of personal dishonesty, fraud, breach of fiduciary duty or trust; or 9.1.3 you are convicted of..., or plead guilty or nolo contendere with respect to, theft, fraud, a crime involving moral turpitude, or a felony under federal or applicable state law; or 9.1.4 you commit any act of personal conduct that, in the reasonable opinion of the Board, gives rise to a material risk of liability under federal or applicable state law for discrimination or sexual or other forms of harassment or other similar liabilities to subordinate employees; or 9.1.5 you commit continued and repeated substantive violations of specific written directions of the Board, which directions are consistent with this Agreement and your position as Executive Chairman, or continued and repeated substantive failure to perform duties assigned by or pursuant to this Agreement; provided that no discharge shall be deemed For Cause under this subsection 9.1.5 unless you first receive written notice from the Company advising you of the specific acts or omissions alleged to constitute violations of written directions or a material failure to perform your duties, and such violations or material failure continue after you shall have had a reasonable opportunity to correct the acts or omissions so complained of; or 9.1.6 you engage in conduct that is demonstrably and materially injurious to the Company Group (as defined below), or that materially harms the reputation or financial position of the Company Group (as defined below), unless the conduct in question was undertaken in good faith on an informed basis with due care and with a rational business purpose and based upon the honest belief that such conduct was in the best interest of the Company Group (as defined below); or 9.1.7 you are found liable in any Securities and Exchange Commission ("SEC") or other civil or criminal securities law action or entering any cease and desist order with respect to such action (regardless of whether or not you admit or deny liability) where the conduct that is the subject of such action is demonstrably and materially injurious to the Company Group (as defined below); or 9.1.8 you (i) obstruct or impede, (ii) endeavor to influence, obstruct or impede, or (iii) fail to materially cooperate with, any investigation authorized by the Board or any governmental or self-regulatory entity (an "Investigation") (however, your failure to waive attorney-client privilege relating to communications with your own attorney in connection with an Investigation shall not constitute "Cause"); or 9.1.9 you made any material misrepresentations (or omissions) in connection with your resume and other documents which may have been provided by you, and oral statements regarding your employment history, education and experience, in determining to enter into the Agreement. 9.2 "Company Group" means the Company and each corporation or entity controlled directly or indirectly by the Company. By discussing the terms of employment with the Company outlined herein, you agree and acknowledge that your employment relationship with the Company would be at will. View More

Certain Definitions. For purposes of this Award Agreement: (a)The term "Cause" is to be construed the same as such similar term is defined in any employment agreement, offer letter, or service provider agreement between the Grantee and the Company as may be in force from time to time, and in the absence of such agreement or letter, shall mean the Grantee's (i) failure to reasonably perform the Grantee's duties to the Company or to follow the lawful instructions of his or her superiors in a manner that could reasonab...ly be expected to result in harm to the Company, other than as a result of incapacity due to physical or mental illness or injury, (ii) willful violation of the Company's written policies that could reasonably be expected to result in harm to the Company, (iii) engaging in conduct that is, or could reasonably expected to be, materially damaging to the Company, (iv) willful misconduct or gross negligence that could reasonably be expected to result in harm to the Company, (v) act of fraud or misappropriation, embezzlement or misuse of funds or property belonging to the Company, (vi) conviction of, or plea of guilty or no contest to, a felony or any crime involving as a material element fraud or dishonesty, or (vii) willful breach of a fiduciary duty owed to the Company. (b)References to the "Committee" shall have the same meaning provided under the Plan. 2 (c)The Grantee shall be considered to have a termination of Employment pursuant to Section X.B of the Plan, and the term "Separation Date" means the day on which the Grantee's termination of Employment occurs. View More

Certain Definitions. For purposes of this Warrant, the following terms shall have the following meanings: (a) "Business Day" means all days other than Saturdays, Sundays and any other days on which commercial banks in New York City are authorized or required by law to be closed for business. (b) "Common Stock" means the Company's common stock, par value $0.01 per share, and any other class of securities into which such securities may hereafter be reclassified or changed. (c) "Required Consents" means the material fi...lings, registrations, notifications, approvals, waivers or expiration or termination of any waiting periods that are necessary or required, as set forth in Section 6(b). View More

Certain Definitions. Duties of the Administrator 2 3. [Reserved] 5 4. Records 5 5. Compensation 5 6. Additional Information To Be Furnished to the Issuing Entity 5 7. Independence of the Administrator 6 8. No Joint Venture 6 9. Other Activities of the Administrator 6 10. Term of Agreement; Resignation and Removal of Administrator 6 11. Action upon Termination, Resignation or Removal 7 12. Notices 7 13. Amendments 7 14. Successors and Assigns 9 15. Governing Law; Waiver of Jury Trial 9 16. Headings 10 17. Separate Co...unterparts 10 18. Severability of Provisions 10 19. Not Applicable to Carvana in Other Capacities 11 20. Limitation of Liability of Owner Trustee, Grantor Trust Trustee and Indenture Trustee 11 21. Third-Party Beneficiary 11 22. Recourse against Certain Parties 11 23. Nonpetition Covenant 12 i CRVNA 2022-P2 Administration Agreement ADMINISTRATION AGREEMENT, dated as of May 25, 2022, is among CARVANA AUTO RECEIVABLES TRUST 2022-P2, a Delaware statutory trust, as issuer (the "Issuing Entity"), CARVANA AUTO RECEIVABLES GRANTOR TRUST 2022-P2, a Delaware statutory trust, as grantor trust (the "Grantor Trust"), CARVANA, LLC, an Arizona limited liability company, as administrator ("Carvana" or the "Administrator"), and COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION, a national association, not in its individual capacity but solely as indenture trustee (the "Indenture Trustee"). W I T N E S S E T H: WHEREAS, the Issuing Entity is issuing Notes pursuant to an indenture, dated as of May 25, 2022 (as amended, modified or supplemented from time to time, the "Indenture"), among the Issuing Entity, the Grantor Trust and the Indenture Trustee; WHEREAS, the Issuing Entity has entered into (or assumed) certain agreements in connection with the issuance of the Notes and the Certificates, including (a) the Receivables Transfer Agreement, (b) the Note Depository Agreement and (c) the Indenture; WHEREAS, pursuant to the Transaction Documents, the Issuing Entity is required to perform certain duties in connection with (a) the Notes and the Collateral and (b) the Certificates; WHEREAS, the Grantor Trust has entered into (or assumed) certain agreements in connection with the issuance of the Grantor Trust Certificate, including (a) the Receivables Contribution Agreement and (b) the Indenture; WHEREAS, pursuant to the Transaction Documents, the Grantor Trust is required to perform certain duties in connection with (a) the Grantor Trust Collateral and (b) the Grantor Trust Certificate; WHEREAS, the Issuing Entity and the Grantor Trust desire to have the Administrator perform certain of the duties of the Issuing Entity and the Grantor Trust referred to in the preceding clauses, and to provide such additional services consistent with the terms of this Agreement and the Transaction Documents as the Issuing Entity and the Grantor Trust may from time to time request; and WHEREAS, the Administrator has the capacity to provide the services required hereby and is willing to perform such services for the Issuing Entity and the Grantor Trust on the terms set forth herein. NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties agree as follows: 1 CRVNA 2022-P2 Administration Agreement 1. Certain Definitions. Except as otherwise specified herein or as the context may otherwise require, capitalized terms used but not otherwise defined herein are defined in Part I of Appendix A to the Receivables Purchase Agreement, dated as of the date hereof (the "Receivables Purchase Agreement"), among Carvana, LLC as the seller and Carvana Receivables Depositor LLC as the purchaser. All references herein to "the Agreement" or "this Agreement" are to this Administration Agreement as it may be amended, supplemented or modified from time to time, the exhibits and schedules hereto and the capitalized terms used herein, which are defined in Part I of such Appendix A, and all references herein to Articles, Sections and Subsections are to Articles, Sections or Subsections of this Agreement unless otherwise specified. The rules of construction set forth in Part II of such Appendix A shall be applicable to this Agreement. View More

Certain Definitions. As used in this Warrant the following terms shall have the following respective meanings: 1.1 "Fair Market Value" of a share of Common Stock as of a particular date shall mean: (a) If traded on a securities exchange or the Nasdaq Stock Market, the Fair Market Value shall be deemed to be the average of the closing prices of the Common Stock of the Company on such exchange or market over the five (5) trading days ending immediately prior to the applicable date of valuation; (b) If actively traded ...over-the-counter, the Fair Market Value shall be deemed to be the average of the closing bid prices over the thirty (30)-day period ending immediately prior to the applicable date of valuation; and (c) If there is no active public market, the Fair Market Value shall be the value thereof, as agreed upon by the Company and the Holder; provided, however, that if the Company and the Holder cannot agree on such value, such value shall be determined by an independent valuation firm experienced in valuing businesses such as the Company and jointly selected in good faith by the Company and the Holder. Fees and expenses of the valuation firm shall be paid for by the Company. 1 1.2 "Registered Holder" shall mean any Holder in whose name this Warrant is registered upon the books and records maintained by the Company. 1.3 "Warrant" as used herein, shall include this Warrant and any warrant delivered in substitution or exchange therefor as provided herein. 1.4 "Common Stock" shall mean the Common Stock of the Company and any other securities at any time receivable or issuable upon exercise of this Warrant. View More

Certain Definitions. For purposes of this Warrant, the following terms shall have the following meanings: (a) "Bloomberg" means Bloomberg, L.P. (b) "Business Day" means any day other than Saturday, Sunday or other day on which commercial banks in The City of Wilmington Delaware are authorized or required by law to remain closed. (c) "Expiration Date" means the date that is the tenth (10th) anniversary of the Issuance Date or, if such date falls on a day other than a Business Day or on which trading does not take pla...ce on the Principal Market (a "Holiday"), the next date that is not a Holiday. (d) "Person" means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity or a government or any department or agency thereof. (e) "Principal Market" means the a national securities exchange in the United States or a recognized United States trading medium which provides daily reports of the prices at which securities are offered and traded. (f) "Class A Shares" means the Class A Shares of the Company. View More

Certain Definitions. As used in this Agreement: (a) "Affiliate" shall mean any "Affiliate" as defined in Rule 12b-2 promulgated by the SEC under the Exchange Act, including, for the avoidance of doubt, Persons who become Affiliates subsequent to the Effective Date; (b) "Articles of Incorporation" shall mean the Amended Certificate of Incorporation of the Corporation, as amended and as may be further amended from time to time; (c) "Associate" shall mean any "Associate" as defined in Rule 12b-2 promulgated by the SEC ...under the Exchange Act, including, for the avoidance of doubt, Persons who become Associates subsequent to the Effective Date; (d) "beneficial owner", "beneficial ownership" and "beneficially own" shall have the same meanings as set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act; (e) "business day" shall mean any day other than a Saturday, Sunday or day on which the commercial banks in the state of New York are authorized or obligated to be closed by applicable law; (f) "Bylaws" shall mean the Corporation's Bylaws, as may be amended from time to time; (g) a "Change of Control" transaction shall be deemed to have taken place if (i) any Person is or becomes a beneficial owner, directly or indirectly, of securities of the Corporation representing more than fifty percent (50%) of the equity interests and voting power of the Corporation's then-outstanding equity securities or (ii) the Corporation enters into a merger transaction whereby immediately after the consummation of the transaction the Corporation's stockholders retain less than fifty percent (50%) of the equity interests and voting power of the surviving entity's then-outstanding equity securities; (h) "Corporation Policies" mean the policies, processes, procedures, codes, rules, standards and guidelines applicable to members of the Board, and any other policies on stock ownership, public disclosures and confidentiality. (i) "Extraordinary Transaction" shall mean any equity tender offer, equity exchange offer, merger, acquisition, business combination, or other transaction with a Third Party that, in each case, would result in a Change of Control of the Corporation, liquidation, dissolution or other extraordinary transaction involving a majority of its equity securities or a majority of its assets, and, for the avoidance of doubt, including any such transaction with a Third Party that is submitted for a vote of the Corporation's stockholders; (j) "Governmental Authority" shall mean any federal, state, local, municipal, or foreign government and any political subdivision thereof, any authority, bureau, commission, department, board, official, or other instrumentality of such government or political subdivision, any self-regulatory 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), including, but not limited to, the SEC, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, and the respective staffs thereof, and any court of competent jurisdiction. (k) "other Parties" shall mean, with respect to the Corporation, any of the Driver Parties; and with respect to any of the Driver Parties, the Corporation; (l) "Person" or "Persons" shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, any other entity of any kind, structure or nature, and any Governmental Authority. (m) "Representative" shall mean a Person's Affiliates and Associates and its and their respective directors, officers, employees, personnel, partners, members, managers, consultants, auditors, legal or other advisors, agents and other representatives (in each case in their capacities as such); (n) a "Third Party" shall mean any Person who is not (i) a Party, (ii) a member of the Board, (iii) an officer of the Corporation, or (iv) an Affiliate of any Party; and (o) "Voting Securities" means the Common Stock and any other securities of the Corporation entitled to vote in the election of directors. View More

Certain Definitions. When used herein, the following terms shall have the following meanings: "Affiliate" means, with respect to any Person, any other Person that, directly or indirectly through one or more of its intermediaries, controls, is controlled by or is under common control with such Person. "Business" means (i) any business into which any Company and its Subsidiaries is presently engaged or enters during the Employment Period pursuant to any acquisition, joint venture, other strategic partnership or otherw...ise; and (ii) any other business in which the Company or its Subsidiaries engage as of the date on which Executive ceases to be employed by the Company or its Subsidiaries. 2 "Good Reason Event" means, during the Employment Period, (i) a substantial diminution in Executive's professional responsibilities, (ii) the Company's failure to timely pay any amounts due to Executive hereunder or a significant reduction in the Salary or in the aggregate of the services, perquisites, and amenities which Executive was theretofore receiving, (iii) a change in Executive's work location that increases the regular one-way commute distance between Executive's residence and work location prior to such change by more than 50 miles, (iv) any action or inaction that constitutes a material breach of this Agreement by the Company. "Person" means an individual, a partnership, a corporation, an association, a limited liability company, a joint stock company, a trust, a joint venture, an unincorporated organization or any other entity (including any governmental entity or any department, agency or political subdivision thereof). "Subsidiaries" means, with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of such Person or entity or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity if such Person or Persons shall be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or shall be or control any managing director, managing member, or general partner of such limited liability company, partnership, association or other business entity. Unless stated to the contrary, as used in this Agreement the term Subsidiary means a Subsidiary of the Company. View More