Excluded Expenditures The Recipient undertakes that the proceeds of the Financing shall not be used to finance Excluded Expenditures. If the Association determines at any time that an amount of the Financing was used to make a payment for an Excluded Expenditure, the Recipient shall, promptly upon notice from the Association, refund an amount equal to the amount of such payment to the Association. Amounts refunded to the Association upon such request shall be cancelled.
Estimated Payments Commencing on the first day of the Term on which Additional Rent is due, and on the first day of each calendar month thereafter during the Term of this Lease, Tenant shall pay Landlord all Additional Rent for:
a) Real estate taxes pursuant to Section 2 above,
b) Insurance premiums pursuant to Section 3 above,
c) HVAC maintenance pursuant to Section 5 above,
d) Common Area Charges pursuant to Section 4 above and
e) Water and common utility use pursuant to Section 14 below. On an annual basis, Landlord shall provide Tenant with (a) a statement of all actual Common Area Charges and insurance premiums incurred in the preceding calendar year and (b) a statement of all charges of real estate taxes assessed against the Property in the preceding fiscal year. If Tenant has made estimated payments of Additional Rent during such calendar/fiscal year in excess of the actual amount due, Landlord shall credit Tenant with any overpayment against the next Rent otherwise due. If the actual Additional Rent due exceeds the estimated payments made by Tenant during the preceding year, Tenant shall pay such amount due as Additional Rent within 15 business days after notice from Landlord. Any failure by Landlord to deliver such statements shall not constitute a default by Landlord or operate as a waiver of Landlord’s right to collect all or any portion of Additional Rent due pursuant to the terms of this Lease. If Additional Rent for any calendar year increases by more than five percent (5%) over Additional Rent for the immediately preceding calendar year, Tenant, within ninety (90) days after receiving Landlord’s statement of actual Additional Rent (inclusive of those which vary with occupancy) for a particular calendar year, shall have the right to provide Landlord with written notice (the “Review Notice”) of its intent to review Landlord’s books and records relating to the Additional Rent for such calendar year. Within a reasonable time after receipt of a timely Review Notice, Landlord shall make such books and records available to Tenant or Tenant’s agent for its review at either Landlord’s home office or at the office of the Building, provided that if Tenant retains an agent to review Landlord’s books and records for any calendar year, such agent must (i) be a CPA firm or an in-house accountant or finance department employee of Tenant, (ii) not be compensated on a contingency basis and (iii) execute a copy of a confidentiality agreement with respect to such review. Tenant shall be solely responsible for any and all costs, expenses and fees incurred by Tenant or ▇▇▇▇▇▇’s agent in connection with such review. If Tenant elects to review ▇▇▇▇▇▇▇▇’s books and records, within thirty (30) days after such books and records are made available to Tenant, Tenant shall have the right to give Landlord written notice stating in reasonable detail any objection to ▇▇▇▇▇▇▇▇’s statement of actual Additional Rent for such calendar year. If Tenant fails to give Landlord written notice of objection within such thirty (30) day period or fails to provide Landlord with a Review Notice within the ninety (90) day period provided above, Tenant shall be deemed to have approved ▇▇▇▇▇▇▇▇’s statement of Additional Rent in all respects and shall thereafter be barred from raising any claims with respect thereto. Upon ▇▇▇▇▇▇▇▇’s receipt of a timely objection notice from ▇▇▇▇▇▇, Landlord and Tenant shall work together in good faith to resolve the discrepancy between ▇▇▇▇▇▇▇▇’s statement and ▇▇▇▇▇▇’s review. If Landlord and Tenant determine that Additional Rent for the calendar year in question are less than reported, Landlord shall provide Tenant with a credit against future Rent in the amount of any overpayment by Tenant. Likewise, if Landlord and Tenant determine that Additional Rent for the calendar year in question are greater than reported, Tenant shall forthwith pay to Landlord the amount of underpayment by Tenant with the understanding that there shall be no interest or late charge added thereto at the time same is billed to Tenant by reason of the failure of Tenant to previously have paid same when the excess was billed for such reviewed period. Any information obtained by Tenant pursuant to the provisions of this Section shall be treated as confidential. Notwithstanding anything herein to the contrary, ▇▇▇▇▇▇ shall not be permitted to examine ▇▇▇▇▇▇▇▇’s books and records or to dispute any statement of Additional Rent unless ▇▇▇▇▇▇ has paid to Landlord the amount due as shown on Landlord’s statement of actual Additional Rent, said payment being a condition precedent to ▇▇▇▇▇▇’s right to examine ▇▇▇▇▇▇▇▇’s books and records.
Asset Dispositions, etc The Borrower will not, and will not permit any of its Subsidiaries to, sell, transfer, contribute or otherwise convey, or grant options, warrants or other rights with respect to, all or substantially all of the assets of (a) the Borrower or (b) the Subsidiaries of the Borrower, taken as a whole, except sales of assets between or among the Borrower and Subsidiaries of the Borrower.
Maximum Capital Expenditures Borrower and its Subsidiaries on a consolidated basis shall not make Capital Expenditures during the following periods that exceed in the aggregate the amounts set forth opposite each of such periods: Period Maximum Capital Expenditures per Period Fiscal Year ending on or about March 31, 2007 $ 7,900,000 Fiscal Year ending on or about March 31, 2008 $ 9,500,000 Fiscal Year ending on or about March 31, 2009 and each Fiscal Year ending thereafter $ 3,000,000
Permitted Payments Until such time as all of the Senior Indebtedness has been Paid in Full, Borrower may pay to the Subordinated Creditors, and the Subordinated Creditors may accept from the Borrower (collectively, the “Permitted Payments”) only:
(i) Any payments of interest with respect to the Subordinated Indebtedness that are paid “in kind,” whether capitalized and added to then outstanding principal amount of the Subordinated Indebtedness or accrued or accreted as unpaid interest so long as such payments “in kind” do not become obligations for payment of cash, securities or any other form of payment (other than in each case in the form of Subordinated Securities) until the earlier of (x) after all of the Senior Indebtedness has been Paid in Full or (y) the scheduled maturity date of the Subordinated Indebtedness (it being acknowledged and agreed by the Subordinated Creditors that such scheduled maturity date will be automatically extended (without any action by the Borrower or any Subordinated Creditor) by a number of days that the maturity date of the Senior Indebtedness is extended provided that such scheduled maturity date may not be extended by more than 180 days without the consent of each Subordinated Creditor);
(ii) Payment of all or any portion of principal or interest on the Subordinated Indebtedness, so long as on the date of any proposed payment, (x) Quarterly Adjusted Continuing Business EBITDA for the two immediately preceding calendar quarters was greater than $5,000,000 for each such quarter, (y) Borrower is in compliance with all covenants and requirements set forth in the Senior Loan Agreement without giving effect to the amendments to the Senior Loan Agreement set forth in Section 4 of the First Amendment, and (z) no default or event of default exists under the Senior Loan Agreement or any other Loan Document, and no default would occur under the Senior Loan Agreement or any other Loan Document as a result of such payment;
(iii) Payments of principal and accreted or accrued interest upon the occurrence of a Change in Control (as defined in the Subordinated Documents as in effect on the date hereof) and the declaration of an “Event of Default” under the Subordinated Documents in accordance with the terms thereof, but only to the extent that the Senior Creditor has consented in writing to such Change in Control or has waived (or agreed to forbear from exercising remedies in connection with) in writing any Event of Default under the Loan Documents that may have occurred as a result of such Change in Control; and
(iv) Reimbursement of reasonable out-of-pocket costs and expenses (including without limitation, attorney fees) due and owing to any Subordinated Creditor; provided, in the case of clauses (iii) and (iv) only if such payments are payments made in accordance with the terms of the Subordinated Documents as in effect on the date hereof or as modified in accordance with the terms of this Agreement.