Defined Terms Contract Clauses (16,799)

Defined Terms. In addition to the terms defined elsewhere in this Agreement: (a) capitalized terms that are not otherwise defined herein have the meanings given to such terms in the New Note or Security Agreement (as defined herein); and (b) the following terms have the meanings set forth in this Section 1: "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of... this definition, "control", when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "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. "Closing Date" means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all conditions precedent to: (i) the Holders' obligations to surrender the Original Note and (ii) the Company's obligations to deliver the New Note have been satisfied or waived. "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 other class of securities into which such securities may hereafter be reclassified or changed. "Conversion Price" shall have the meaning ascribed to such term in the New Note. "Conversion Shares" means the shares of Common Stock issuable upon the conversion of the New Note. "Encumbrances" shall mean any security or other property interest or right, claim, lien, pledge, option, charge, security interest, contingent or conditional sale, or other title claim or retention agreement interest or other right or claim of third parties, whether perfected or not perfected, voluntarily incurred or arising by operation of law, and including any agreement (other than this Agreement) to grant or submit to any of the foregoing in the future. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. "New Note" means the Secured Convertible Note due, subject to the terms therein, on the one-year anniversary of the date on which it is issued, as issued by the Company to the Holder hereunder, in an aggregate principal amount equal to the sum of (i) the principal amount of the Original Notes, plus (ii) the accrued and unpaid interest on the Original Notes up to the Business Day immediately preceding the Closing Date, which New Note shall be in the form of Exhibit A attached hereto. 1 "Person" means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind. "Required Approvals" shall have the meaning ascribed to such term in Section 4(d). "Required Minimum" means, as of any date, the maximum aggregate number of shares of Common Stock then issued or potentially issuable in the future pursuant to the New Note, ignoring any conversion or exercise limits set forth therein. "Securities" means the New Note and the Conversion Shares. "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. "Security Agreement" means that certain Amended and Restated Security Agreement, dated as of the date first set forth above, among the Company and the secured parties, as named therein. "Trading Day" means a day on which the principal Trading Market is open for trading. "Trading Market" means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange, or any tier of the OTC Markets Inc. (or any successors to any of the foregoing). "Transaction Documents" means this Agreement, the New Note, the Security Agreement, all exhibits and schedules thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder. View More

Defined Terms. Unless otherwise defined herein, terms defined in the Existing Forbearance Agreement or the Loan Agreement and used herein shall have the respective meanings given to them in the Existing Forbearance Agreement or the Loan Agreement, as applicable.

Defined Terms. Initially capitalized terms used herein and not defined herein that are defined in the Credit Agreement shall have the meanings assigned to them in the Credit Agreement (as amended hereby).

Defined Terms. Except as explicitly set forth in this First Amendment, each initially capitalized term when used herein shall have the same respective meaning as is set forth in the Lease.

Defined Terms. Capitalized terms not defined herein shall have the meanings ascribed thereto in the Bond Documents.

Defined Terms. All initially capitalized terms used but not otherwise defined herein have the meanings given to them in the Guaranty and Security Agreement or, if not defined therein, in the Credit Agreement, and this Trademark Security Agreement shall be subject to the rules of construction set forth in Section 1(b) of the Guaranty and Security Agreement, which rules of construction are incorporated herein by this reference, mutatis mutandis.

Defined Terms. For purposes of this Note, the terms listed below shall have the respective meanings set forth below: 1.1 "business da y" means any day other than Saturday, Sunday or a legal holiday that banks located in Hawaii are not open for business; 1.2 "Common Stoc k" means the Common Stock, par value $0.001 per share, of the Company; 1.3 "Maturity Date" the earlier of (i) December 15, 2016 or (ii) the date of the closing of a firmly underwritten public offering pursuant to an effective registration... statement under the Securities Act of 1933, as amended, covering the offer and sale of Common Stock for the account of the Company. View More

Defined Terms. Initially capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Credit Agreement.

Defined Terms. As used in this Joinder , terms defined in the Guarantee hereto are used herein as therein defined. The words "herein," "hereof" and "hereby" and other words of similar import used in this Joinder refer to this Joinder as a whole and not to any particular section hereof.

Defined Terms. Each capitalized term used herein but not otherwise defined herein has the meaning given such term in the Credit Agreement or the Forbearance Agreement, as applicable. Unless otherwise indicated, all section references in this Amendment No. 1 refer to sections of the Credit Agreement. Section 2. Forbearance. Section 2.1 of the Forbearance Agreement is hereby amended and replaced in its entirety as follows: "The "Forbearance Period" shall commence on the Effective Time, and shall terminate... immediately and automatically upon the earliest to occur of (i) June 20, 2016, at 11:59 p.m. New York time (the "Forbearance Termination Date") and (ii) the termination of this Forbearance pursuant to Section 2.3 below." Section 3. Conditions to Effectiveness of this Amendment No. 1. This Amendment No. 1 shall become effective (the date of such effectiveness being referred to herein as the "Effective Time") upon (i) the Administrative Agent having received from the Borrower, the Guarantors and the Consenting Lenders sufficient to constitute the Required Lenders, counterparts of this Amendment No. 1 signed on behalf of such Person, (ii) execution of this Amendment No. 1 by the Administrative Agent and, (iii) receipt by the Administrative Agent of $2.5 million in cash (the "Forbearance Payment"), which payment shall be applied to prepay $2,457,321.11 in outstanding principal and $42,678.89 in accrued and unpaid interest on such principal amount of the loans outstanding under the Credit Agreement in accordance with Section 5.3.1 of the Credit Agreement. As of the Effective Time, notwithstanding any provision to the contrary in the Credit Agreement, (a) the Consenting Lenders, who constitute Required Lenders under the Credit Agreement, hereby irrevocably waive and direct the Administrative Agent to waive, (1) payment of the Applicable Premium in respect of the Forbearance Payment and (2) the requirement that the Borrower provide three business days' notice prior to any prepayment of any LIBOR Loans in connection with the Forbearance Payment and (b) the Borrower hereby irrevocably agrees to waive its right to apply the Forbearance Payment to the principal repayment installments set forth in Section 5.2.1 of the Credit Agreement prior to the Maturity Date. 1 Section 4. Miscellaneous 4.1 Counterparts. This Amendment No. 1 may be executed by one or more of the parties hereto in any number of separate counterparts, and all of such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of this Amendment No. 1 by facsimile or electronic transmission in portable document format (.pdf) shall be effective as delivery of a manually executed counterpart hereof. 4.2 GOVERNING LAW. THIS AMENDMENT NO. 1 SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. View More