Common use of Cash Flow Limitation Clause in Contracts

Cash Flow Limitation. Notwithstanding any other provision of this Agreement to the contrary, the aggregate amount of any payments due under this Agreement or any similar retention agreements executed now or in the future with any other employee of the Company or any of its Affiliates (each a, “Key Employee”) to the Executive and one or more Key Employees in a single fiscal year shall be limited so that in no event shall the aggregate amount to be paid in cash cause the Company’s Available Credit plus Cash to fall below $1,500,000 (“Cash Flow Ceiling”); and in the event the Available Credit plus Cash would fall below such amount, the Company shall deliver to the Executive to the extent required by this Agreement a payment in an amount equal to the product of (i) the Cash Flow Ceiling multiplied by (ii) a fraction, the numerator of which is the aggregate amount of such Executive’s full payment hereunder for the fiscal year and the denominator of which is the aggregate amount of all payments due to the Executive and all other Key Employees in such fiscal year (“Cash Flow Permitted Amount”). To the extent that payments under this Agreement to the Executive in a single fiscal year would exceed the Cash Flow Ceiling (“Cash Flow Shortfall”), the Company shall pay the Cash Flow Permitted Amount to the Executive and shall pay the Cash Flow Shortfall (in whole or in part) as rapidly as permitted by the terms of this Section 4.1. The obligation to pay the Cash Flow Shortfall shall constitute subordinated debt of the Company until paid. The Company may, in the sole discretion of the Board, elect to waive the annual cash flow limitation set forth above, and absent such a waiver, the limitation shall apply to payments due under this Agreement. For purposes of this Section 4.1, “Available Credit plus Cash” means credit available to the Company as calculated by the Chief Financial Officer or an acceptable designee using the borrowing worksheet supplied by the Company’s Senior Lender plus the total amount of cash in the Company’s bank account(s).

Cash Flow Limitation. Notwithstanding any other provision of this Agreement to the contrary, the aggregate amount of any payments due under this Agreement or any similar retention agreements executed now or in the future with any other employee of the Company or any of its Affiliates (each a, “Key Employee”) to the Executive and one or more Key Employees in a single fiscal year shall be limited so that in no event shall the aggregate amount to be paid in cash cause the Company’s Available Credit plus Cash to fall below $1,500,000 (“Cash Flow Ceiling”); and in the event the Available Credit plus Cash would fall below such amount, the Company shall deliver to the Executive to the extent required by this Agreement a payment in an amount equal to the product of (i) the Cash Flow Ceiling multiplied by (ii) a fraction, the numerator of which is the aggregate amount of such Executive’s full payment hereunder for the fiscal year and the denominator of which is the aggregate amount of all payments due to the Executive and all other Key Employees in such fiscal year (“Cash Flow Permitted Amount”). To the extent that payments under this Agreement to the Executive in a single fiscal year would exceed the Cash Flow Ceiling (“Cash Flow Shortfall”), the Company shall pay the Cash Flow Permitted Amount to the Executive and shall pay the Cash Flow Shortfall (in whole or in part) as rapidly as permitted by the terms of this Section 4.1. The obligation to pay the Cash Flow Shortfall shall constitute subordinated debt of the Company until paid. The Company may, in the sole discretion of the Board, elect to waive the annual cash flow limitation set forth above, and absent such a waiver, the limitation shall apply to payments due under this Agreement. For purposes of this Section 4.1, “Available Credit plus Cash” means credit available to the Company as calculated by the Chief Financial Officer or an acceptable designee using the borrowing worksheet supplied by the Company’s Senior Lender plus the total amount of cash in the Company’s bank account(s).The