Procedure for Establishing the Annual Excess Cash Flow Payment Amount Sample Clauses

Procedure for Establishing the Annual Excess Cash Flow Payment Amount. On or before May 10, 2004, and the same day of each year thereafter, Mackie shall deliver to U.S. Bank a written report in a form satisfactory to U.S. Bank in its reasonable discretion setting forth in detail Mackie’s calculation of Adjusted EBITDA for the immediately preceding fiscal year. Except as specified in the following sentence, the calculation of Adjusted EBITDA shall be based upon Mackie’s audited financial statement for the immediately preceding fiscal year. Notwithstanding the foregoing, if Mackie incurs Indebtedness or makes capital expenditures that violate the provisions of Section 9 of the CFC Loan Agreement (as in effect on the Closing Date), and the violation impacts or relates to the determination of Adjusted EBITDA (or any component of such definition), then for purposes of determining the amount of Mackie’s Annual Excess Cash Flow Amount for the fiscal year in question, such determination shall be made based upon the actions Mackie was permitted to take in accordance with Section 9 of the CFC Loan Agreement (as in effect on the Closing Date), rather than on Mackie’s actual performance in respect of the financial covenant or other issue in question. For example, if Mackie made capital expenditures during fiscal year 2003 of $5,000,000, the figure of $4,000,000 (which is the maximum amount of capital expenditures that Mackie is permitted to make during fiscal year 2003 in accordance with Section 9.18 of the CFC Loan Agreement) would be used for purposes of calculating Adjusted EBITDA and determining the Annual Excess Cash Flow Amount for the fiscal year in question.
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