Pricing Term Sheet The Company will prepare a final pricing term sheet containing a description of the final terms of the Securities, in a form approved by the Representatives and containing the information in Schedule C hereto, and will file such term sheet pursuant to Rule 433(d) under the 1933 Act within the time period required by such rule (such term sheet, the “Pricing Term Sheet”).
Accounting Terms and Principles (a) Except as set forth below, all accounting terms not specifically defined herein shall be construed in conformity with GAAP and all accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in conformity with GAAP.
Accounting Terms and Calculations Except as may be expressly provided to the contrary herein, all accounting terms used herein shall be interpreted and all accounting determinations hereunder shall be made in accordance with GAAP. To the extent any change in GAAP affects any computation or determination required to be made pursuant to this Agreement, such computation or determination shall be made as if such change in GAAP had not occurred unless the Borrower and the Bank agree in writing on an adjustment to such computation or determination to account for such change in GAAP.
Remaining Terms Those portions of the Rights Agreement that are not expressly amended hereby shall continue in full force and effect. Notwithstanding the foregoing, the Rights Agent and the Company acknowledge and agree that upon the Expiration Date the Rights Agreement shall terminate and be of no further force and effect.
Financial Terms All accounting terms used in this Agreement which are not specifically defined herein shall be construed in accordance with GAAP.
Special Terms The terms and conditions of the Lease as they pertain to this Schedule are hereby modified and amended as follows:
Shipping Terms Products are shipped Ex Works (Incoterms 2000) Manufacturer’s shipping point in the United States. Legal title, control of, right of possession and risk of loss of Products shall pass to Distributor upon shipment from Manufacturer’s shipping point in the United States. Distributor shall pay for each order the price of the Products, export packing and such shipping costs as may be directly incurred by Manufacturer for such order. Distributor shall ensure that Products shipped are stored and handled in accordance with the specifications Manufacturer shall from time to time provide. Returning Products Authorization must be obtained from Manufacturer before the return of any product. A Returned Material Authorization (RMA) number will be given to you. Any returned product packaging must be clearly labeled with the RMA number. Any Product delivered to the Distributor in a damaged, defective, or nonconforming condition may be returned for full credit or replacement, upon approval of Manufacturer, within thirty (30) calendar days from the date of receipt by the Distributor. Any product that has been opened or has broken package seals becomes the property of the Distributor and may not be returned for credit or replacement. Contact Manufacturer for information about credit for or replacement of any purchased and unexpired products that are still in the original packaging (unopened and undamaged). A restocking charge may also apply. SCHEDULE 3 SALES FORECAST The following table lists the sales forecast levels for the eSVS MESH devices which must be achieved by Distributor as of the end of the first six (6) months and second six (6) months of this agreement. The sales forecast for the second and third years of this agreement shall be mutually agreed upon no later than the 360th day from the effective date of this agreement and shall be added to schedule 3 by mutual consent. Sales Forecast Geographic Region 1st 6 months 2nd 6 months Year 2 Year 3 Greece 10 15 SCHEDULE 4 PRODUCT WARRANTY LIMITED WARRANTY AND DISCLAIMER KIPS BAY MEDICAL, Inc. warrants that reasonable care has been used in the design and manufacture of this instrument. This warranty is in lieu of and excludes all other warranties not expressly set forth herein, whether express or implied by operation of law or otherwise, including, but not limited to, any implied warranties of merchantability of fitness for a particular purpose. Handling, storage, cleaning and sterilization of this instrument as well as other factors relating to the patient, diagnosis, treatment, surgical procedures, and other matters beyond KIPS BAY MEDICAL’s control directly affect the instrument and the results obtained from its use. KIPS BAY MEDICAL’s obligation under this warranty is limited to the repair or replacement of this instrument and KIPS BAY MEDICAL shall not be liable for any incidental or consequential loss, damage, or expense directly or indirectly from the use of this instrument. KIPS BAY MEDICAL neither assumes, nor authorizes any other person to assume for it, any other or additional liability or responsibility in connection with this instrument. KIPS BAY MEDICAL assumes no liability with respect to instruments reused, reprocessed or resterilized and makes no warranties, express or implied, including but not limited to merchantability or fitness for a particular purpose, with respect to the instrument.
Controlling Terms In the event of any conflict or inconsistency between the terms of this Section 5 and the terms of the Escrow Agreement, the terms of the Escrow Agreement shall govern.
Extended Terms Tenant shall have the right to extend the Term for up to five (5) consecutive renewal terms of ten (10) years each (each, an “Extended Term”), provided that (unless Landlord shall elect in its sole discretion to waive any such condition), at the time Tenant exercises a right to extend the Term, (a) no Event of Default shall have occurred and be continuing and (b) on the date of the exercise of the extension option and on the first day of each such Extended Term, there shall be a Guaranty in favor of Landlord from a Qualifying Guarantor which shall either meet the standard in clause (a) or (c) of the definition of Qualifying Guarantor or shall provide Landlord with the audited financial statement described in the last paragraph of the definition of Qualifying Guarantor to establish that it meets the criteria in clause (b) thereof to be a Qualifying Guarantor, even if such Entity is a BP Affiliate. All of the terms, covenants and provisions of this Agreement shall apply to each Extended Term (including, but without limitation, the two percent annual Minimum Rent increases provided in the definition of Minimum Rent), except that Tenant shall have no right to extend the Term beyond the expiration of the fifth Extended Term. If Tenant shall elect to exercise its option to extend the Term for any Extended Term, it shall do so by giving Landlord Notice thereof not later than eighteen (18) months prior to the commencement of the applicable Extended Term, it being understood and agreed that time shall be of the essence with respect to the giving of any such Notice. If Tenant shall fail to give any such Notice, this Agreement shall automatically terminate at the end of the Fixed Term or the applicable Extended Term, and Tenant shall have no further option to extend the Term of this Agreement. If Tenant shall give such Notice, the extension of this Agreement shall be automatically effected without the execution of any additional documents; it being understood and agreed, however, that Tenant and Landlord shall execute such documents and agreements as either party shall reasonably require to evidence the same.
Existing Term Lenders / Cashless Settlement Each undersigned Term Lender hereby irrevocably and unconditionally (i) consents to convert 100% of the outstanding principal amount of the Term Loans held by such Term1 Lender (or such lesser amount allocated to such Lender by the Administrative Agent) into a Term B-1 Loan in a like principal amount via a cashless roll and (ii) consents to the terms of the Amendment and the Amended Credit Agreement.
