Maximum Capital Expenditures The Parent and the Borrower will, and will cause each Consolidated Subsidiary to, not make Capital Expenditures on a consolidated basis that exceed $30,000,000 in any fiscal year (the “Base Capital Expenditure Amount”). Notwithstanding anything to the contrary, the Base Capital Expenditure Amount shall be increased by the following amounts: (i) to the extent that the aggregate amount of Capital Expenditures made by the Parent and its Consolidated Subsidiaries in any fiscal year is less than the Base Capital Expenditure Amount, the amount of such difference may be carried forward and used to make Capital Expenditures in succeeding fiscal years, provided that in any fiscal year, the amount permitted to be applied to make Capital Expenditures pursuant to this clause (i) shall in no event exceed an amount equal to 75% of the unused portion of the Base Capital Expenditure Amount for such fiscal year (without giving effect to any prior adjustments), (ii) if no Default or Event of Default has occurred and is continuing, or would result after giving effect thereto, the Parent and its Consolidated Subsidiaries may make additional Capital Expenditures to the extent that the amount of such excess is deducted from the Base Capital Expenditure Amount in succeeding fiscal years, provided that in any fiscal year, the amount permitted to be applied to make Capital Expenditures pursuant to this clause (ii) shall in no event exceed an amount equal to 25% of the Base Capital Expenditure Amount (without giving effect to any prior adjustments) and (iii) the Base Capital Expenditure Amount shall exclude any Capital Expenditures that are funded with the Available Credits; provided that, at the time of such Capital Expenditures, the Borrower shall deliver a certificate of a Financial Officer stating the portion of Capital Expenditures that is being made from the Available Credit, and setting forth a calculation of the Available Credit immediately before and immediately after such Capital Expenditures.
Minimum Adjusted EBITDA Borrower shall maintain a minimum trailing six-month Adjusted EBITDA minus dividend distributions (other than tax distributions), as of such test date, of at least the greater of (a) $75,000,000 and (b) an amount equal to 75% of the trailing six-month Adjusted EBITDA minus dividend distributions (other than tax distributions), for the immediately preceding six-month period, tested semi-annually, commencing September 30, 2024, and continuing on each subsequent March 31 and September 30.
Maximum Leverage Permit, as of any fiscal quarter end, the ratio of (a) Adjusted Portfolio Equity as of such fiscal quarter end to (b) Funded Debt as of such fiscal quarter end, to be less than 5.00 to 1.00.
Step Increases (a) The following is the method used to determine service credit, since the last date of hire, for purposes of positioning on the salary range:
i) all continuous service shall be retained and transferred with the employee if she/he changes her/his status from full-time to part- time and vice versa.
ii) a part-time employee who changes status to full-time will be given credit on the basis of fifteen hundred (1500) paid hours of part- time being equivalent to one (1) year of full-time service and vice versa.
iii) in addition, an employee who is so transferred will be given credit for paid hours accumulated since the date of last advancement.
(b) Annual increments for full-time employees shall be paid on their anniversary date.
(c) Annual increments for part-time employees shall be paid on the completion of each fifteen hundred (1500) hours worked.
Maximum Annual Operating Expense Limit The Maximum Annual Operating Expense Limit with respect to each Fund shall be the amount specified in Schedule A based on a percentage of the average daily net assets of each Fund.
Wage Increase 1. The minimum hourly wage amounts in the salary table in column I (job grades 1 up to and includ- ing 3) concern the statutory minimum wage and are adjusted in the event of an increase in the statutory minimum wage.
2. Each calendar year, in principle before 1 July, the CLA parties shall conduct talks on the adjust- ment of the (other) amounts shown in the salary table (column I, job grades 4 up to and including 6, column II and III) in article 28(2) of the CLA from 1 July of that year.
3. If an adjustment of the salary table (column I, job grades 4 up to and including 6, columns II and III) is agreed pursuant to paragraph 2 of this article, this will be applied as follows:
a. The salary table (column I, job grades 4 up to and including 6, columns II and III) will be increased by the agreed percentage and
b. the actual wage of the temporary agency worker will be increased by the agreed percentage from the agreed date.
Net Working Capital Adjustment (a) Within sixty (60) days after the Closing Date, Purchaser shall prepare and deliver to Seller a statement (the “Closing Statement”) calculating the Net Working Capital as of immediately prior to the Effective Time (the “Closing Net Working Capital”) as well as the adjustments to Transaction Consideration which shall be made pursuant to this Section 1.6, together with all underlying documentation supporting such calculations. Seller shall reasonably cooperate with Purchaser in its preparation of the Closing Statement.
(b) During the sixty (60) days immediately following delivery of the Closing Statement, Seller and its professional representatives shall be entitled to review the Closing Statement and any working papers, financial records, trial balances and similar materials relating to the Closing Statement prepared by the Purchaser or by Persons retained by it, and Purchaser shall provide Seller with reasonable access to work papers of Purchaser’s accountants relating thereto, and Purchaser shall make reasonably available the individuals in its and its Affiliates’ employ as well as representatives of its accountants responsible for and knowledgeable about the information used in, and the preparation of the Closing Statement, to respond to the reasonable inquiries of, or requests for information by Seller, during normal business hours. If Seller disputes any amounts as shown on the Closing Statement, Seller shall deliver to Purchaser within thirty (30) days after receipt of the Closing Statement a notice (the “Dispute Notice”) setting forth Seller’s calculation of Closing Net Working Capital and describing in reasonable detail the basis (including for each component, the difference and the amount thereof and reasons therefor) for the determination of such different amount. If Seller does not deliver a Dispute Notice to Purchaser within such thirty (30) day period, the Closing Statement (and the determination of Closing Net Working Capital therein) prepared and delivered by Purchaser shall be deemed to be the Final Closing Statement and the Final Closing Net Working Capital. Any such disputes shall be limited to assertions that the Closing Statement (and the determination of Closing Net Working Capital therein) was not calculated in accordance with the terms of this Section 1.6. Any component not disputed in the Dispute Notice shall be treated as final and binding. Purchaser and Seller shall use commercially reasonable efforts to resolve such differences within a period of thirty (30) days after Seller has given the Dispute Notice. If Purchaser and Seller resolve such differences, the Closing Statement and Closing Net Working Capital agreed to by Purchaser and Seller shall be deemed to be the Final Closing Statement and Final Closing Net Working Capital. If Purchaser and Seller do not reach a final resolution on the Closing Statement and Closing Net Working Capital within thirty (30) days after Seller has delivered the Dispute Notice, unless Purchaser and Seller mutually agree to continue their efforts to resolve such differences, the Neutral Accountant shall resolve such differences with respect to the adjustment under this Section 1.6 pursuant to an engagement agreement among Purchaser, Seller, and the Neutral Accountant (which Purchaser and Seller agree to execute promptly), in the manner provided below. The Neutral Accountant shall have full authority to decide all of the issues or matters relating to the adjustments under this Section 1.6 (it being understood that in making such determination, the Neutral Accountant shall be functioning as an expert and not as an arbitrator), but shall only decide the specific components under dispute in the Dispute Notice (the “Disputed Items”), strictly in accordance with the terms of this Agreement. Purchaser and Seller shall each be entitled to make a presentation to the Neutral Accountant at which the other shall be entitled to be present and participate, pursuant to procedures to be agreed to among Purchaser, Seller, and the Neutral Accountant (or, if they cannot agree on such procedures, pursuant to procedures determined by the Neutral Accountant), regarding such Party’s determination of the amounts to be set forth on the Closing Statement (and the determination of Closing Net Working Capital therein); and Purchaser and Seller shall use commercially reasonable efforts to cause the Neutral Accountant to resolve the differences between them and determine the amounts to be set forth on the Closing Statement (and the determination of Closing Net Working Capital therein) within twenty (20) days after the engagement of the Neutral Accountant. Each of Purchaser and Seller, as a condition precedent to making a presentation to the Neutral Accountant and having the Neutral Accountant review its calculations, shall provide reasonable advance access to the other Party with respect to such materials and reasonably cooperate with the other Party in its review and analysis thereof. The Neutral Accountant’s determination shall be based solely on such presentations of Purchaser and Seller (i.e., not on independent review) and on the definitions and other terms included in this Agreement. The Closing Statement (and determination of Closing Net Working Capital therein) determined by the Neutral Accountant shall be deemed to be the Final Closing Statement and Final Closing Net Working Capital. Such determination by the Neutral Accountant shall be conclusive and binding upon the Parties, absent fraud or manifest error. The fees, costs and expenses of the Neutral Accountant shall be allocated to and borne by Purchaser and Seller based on the inverse of the percentage that the Neutral Accountant’s determination (before such allocation) bears to the total amount of the total items in dispute as originally submitted to the Neutral Accountant. Nothing in this Section 1.6(b) shall be construed to authorize or permit the Neutral Accountant to: (i) determine any questions or matters whatsoever under or in connection with this Agreement, except for the resolution of differences between Purchaser and Seller regarding the determination of the Final Closing Statement (and Final Closing Net Working Capital calculation therein), it being expressly acknowledged and agreed that the Neutral Accountant shall have authority to resolve only matters of an accounting nature and shall not have authority to resolve any disputes of a legal nature (with any dispute as to whether a matter is of an accounting or legal nature to be resolved by the Neutral Accountant); or (ii) resolve any such differences by making an adjustment to any component of the Closing Statement and (Closing Net Working Capital calculation therein) that is outside of the range defined by amounts as finally proposed by Purchaser and Seller.
(c) Promptly, but no later than ten (10) Business Days after the final determination thereof, if the Final Closing Net Working Capital set forth in the Final Closing Statement: (i) exceeds the Target Net Working Capital Range Maximum (taking into consideration any adjustments to the Closing Cash Consideration by reason of the Estimated Net Working Capital calculation as set forth in Section 1.5(b)), Purchaser shall pay such excess amount to Seller; or (ii) is less than the Target Net Working Capital Range Minimum (taking into consideration any adjustments to the Closing Cash Consideration by reason of the Estimated Net Working Capital calculation as set forth in Section 1.5(b)), Seller shall pay such shortfall amount to Purchaser. To the extent the amount paid by Seller is less than such shortfall, Purchaser may, in Purchaser’s sole discretion, collect such amount from the Escrow Account. Any payments made pursuant to this Section 1.6 shall be treated as an adjustment to the Transaction Consideration by the Parties. The Parties acknowledge that the limitations on indemnification set forth in Article VI are inapplicable to the adjustments to be made under this Section 1.6.
Equity Capitalization As of the date hereof, the authorized capital stock of the Company consists of (x) 30,000,000 shares of Common Stock, of which as of the date hereof, 10,964,602 shares are issued and outstanding, 2,529,378 shares are reserved for issuance pursuant to the Company’s employee incentive plan and other options and warrants outstanding and no shares are reserved for issuance pursuant to securities (other than the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock, and (y) 10,000,000 shares of preferred stock, of which as of the date hereof, none are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as set forth above in this Section 3(p): (i) none of the Company’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; and (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company, or contracts, commitments, understandings or arrangements by which the Company is or may become bound to issue additional capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or by which the Company is or may become bound; (iv) there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company; (v) there are no agreements or arrangements under which the Company is obligated to register the sale of any of its securities under the 1933 Act (except pursuant to the Registration Rights Agreement); (vi) there are no outstanding securities or instruments of the Company which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company is or may become bound to redeem a security of the Company; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) the Company has no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s business and which, individually or in the aggregate, do not or would not have a Material Adverse Effect. The Company has furnished or made available to the Buyers true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.
Incremental Facility (a) So long as no Event of Default under subsection 8(a) or 8(f) exists or would arise therefrom, the Borrower shall have the right, at any time and from time to time after the Restatement Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”), (ii) to increase any then-existing Tranche of Term Loans by requesting new term loan commitments to be added to such existing Tranche of Term Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under one or more new revolving facilities to be included in this Agreement, which new revolving facilities may include one or more subfacilities for letters of credit or swing line loans (the “Incremental Revolving Commitments”), and (iv) to increase any then existing Tranche of revolving commitments by requesting new revolving loan commitments be added to such existing Tranche of revolving commitments (the “Supplemental Revolving Commitments,” and together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments and Incremental Revolving Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this subsection 2.5 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness, including to refinance other Indebtedness), an amount that could then be Incurred under this Agreement in compliance with subsection 7.1(b)(i)(II) or the definition of “Maximum Incremental Facilities Amount” and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) of the definition of “Maximum Incremental Facilities Amount”, the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause. Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall be made by creating a new Tranche.
(b) Each request from the Borrower pursuant to this subsection 2.5 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or other financial institution (any such bank or other financial institution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or any affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of subsections 10.6(h) and 10.6(i), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments and Supplemental Revolving Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans or revolving commitments to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. An Increase Supplement or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments (including to subsection 2.2(b)) to the Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this subsection 2.5. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan or commitments made pursuant to such Supplemental Revolving Commitment shall be revolving commitments hereunder, as applicable.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each applicable Incremental Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, (x) to effect the provisions of this subsection 2.5 and/or (y) so long as such amendments are not materially adverse to the other Lenders, to maintain the fungibility of any such Incremental Term Loans with any tranche of then outstanding Term Loans, provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured by the same Collateral securing the Term Loan Facility Obligations or (at the Borrower’s option) will be unsecured, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Term Loan Facility Obligations and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans and (II) so long as any Initial Term Loans, Incremental B-2019 Term Loans or Incremental B-2021 Term Loans are outstanding, any mandatory prepayment from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in respect of such acquisition) or Recovery Event, to the extent the Net Cash Proceeds of such Asset Disposition or Recovery Event are required to be applied to repay the Initial Term Loans, Incremental B-2019 Term Loans or Incremental B-2021 Term Loans pursuant to subsection 3.4(c), on more than a ratable basis with the Initial Term Loans, Incremental B-2019 Term Loans or Incremental B-2021 Term Loans (after giving effect to any amendment in accordance with subsection 10.1(d)(v)); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions (as determined by the Borrower in good faith), would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable); (iv) the interest rate margins and (subject to clause (iii) above) amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Incremental Lenders; (v) such Incremental Commitment Amendment may provide for (1) the inclusion, as appropriate, of Additional Incremental Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) class voting and other class protections for any additional credit facilities, (3) the amendment of the definitions of “Disqualified Stock”, “Junior Capital” and “Refinancing Indebtedness”, in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Initial Term Loan Maturity Date and remaining weighted average life to maturity of the Initial Term Loans to the extended maturity date and the remaining weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Initial Term Loans (except to the extent permitted by clause (iii), (iv), (v) or (vi) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent.
Commitment Increase From time to time after the Closing Date, the Revolving Commitments may be increased (but in no event in excess of $50,000,000 in the aggregate for all such increases) (the “Commitment Increase Cap”) such that the aggregate Revolving Commitments shall at no time exceed $450,000,000 (any such increase, a “Commitment Increase”) at the option of Borrower pursuant to delivery of written notice from Borrower of a proposed Commitment Increase to the Administrative Agent if each of the following conditions have been met:
(a) no Default or Event of Default shall exist or would result from such Commitment Increase;
(b) no Commitment Increase may be in an amount less than $10,000,000;
(c) no existing Lender shall be obligated to increase its Revolving Commitment in connection with any Commitment Increase;
(d) the proposed Commitment Increase shall have been consented to in writing by each existing Lender (if any) who is increasing its Revolving Commitment and/or each other institution (if any) that constitutes a permitted assignee under Section 11.04(b) and that has agreed to become a Lender in respect of all or a portion of the Commitment Increase (each such Lender, a “New Lender”);
(e) the proposed Commitment Increase, together with any prior Commitment Increase, shall not exceed the Commitment Increase Cap; and
(f) the Administrative Agent shall have received (i) an agreement setting forth such Commitment Increase, together with Lender Addendums and promissory notes with respect thereto, (ii) evidence of corporate authorization on the part of the Loan Parties with respect to such Commitment Increase, (iii) opinions of counsel with respect to such Commitment Increase, (iv) amendments to the Security Documents in connection with such Commitment Increase, (v) on behalf of each existing Lender and/or New Lender participating in such Commitment Increase, payment of fees (if any) agreed to by Borrower and payable to such Persons in connection with such Commitment Increase and (vi) evidence of the satisfaction of the conditions set forth in clauses (a) through (d) above in connection with such Commitment Increase, in each case as the Administrative Agent may reasonably request. Each of the Borrower, Lenders and Administrative Agent acknowledges and agrees that each Commitment Increase meeting the conditions set forth in this Section 2.20 shall not require the consent of any Lender other than those Lenders, if any, which have agreed to increase their Revolving Commitments in connection with such proposed Commitment Increase. After giving effect to any Commitment Increase, it may be the case that the outstanding Revolving Loans are not held pro rata in accordance with the new Revolving Commitments. In order to remedy the foregoing, on the effective date of the applicable Commitment Increase, the Revolving Lenders (including, without limitation, any new Lenders) shall make payments to the Administrative Agent, and the Administrative Agent agrees, upon receipt of all such payments, to disburse such amounts to the Lenders so that after giving effect thereto the Revolving Loans will be held by the Revolving Lenders (including, without limitation, any new Lenders), pro rata in accordance with the Pro Rate Percentages hereunder (after giving effect to the applicable Commitment Increase).
