“Subject to the terms of the Escrow Agreement, in the event that the GTY Indemnitees are entitled to indemnification from all or any of the Questica Holders pursuant to this Article 8, GTY and the Questica Holders’ Representative shall deliver a joint written instruction, or written instruction from GTY or the Questica Holders’ Representative attaching a final non-appealable court order from a court of competent jurisdiction, to the Escrow Agent setting forth the amount of such Loss and directing the Escrow Agent to release and transfer to the GTY Indemnitees pursuant to this Article 8 the number of Escrow Shares equal to the lesser of:
(i) the amount of the Loss, divided by the 30-Day VWAP, calculated as of the date of such payment; and
(ii) the amount of the Loss divided by $10.00, in each case, subject to the Escrow Agreement.
For purposes of this Agreement, “30-Day VWAP” means the volume weighted average price of a share of GTY Common Stock, for the 30 trading days immediately prior to the date of calculation (as reported by Bloomberg L.P. or a similar organization and as adjusted for splits, dividends, reorganizations, recapitalizations and the like)”
6. Amendment of Section 1.6(e) of the Purchase Agreement. Section 1.6(e) is hereby amended and restated in its entirety to read:
“ “Final Cash Consideration” means an amount equal to: (i) the Cash Purchase Price, less (ii) the Closing Date Indebtedness amount as set forth in the Final Purchase Price Adjustment Statement, less (iii) the Purchase Price Escrow Amount, plus (iv) the Closing Date Cash as set forth in the Final Purchase Price Adjustment Statement (in each case, terms used in this paragraph which are not defined in this Agreement shall have the same meaning as those same terms that are defined by reference to “Estimated”, except as finally determined).”
7. Amendment of Article 10 of the Purchase Agreement.
(a) The following defined terms are hereby amended and restated in their entirety to read:
“Cash Consideration” means an amount equal to: (a) the Cash Purchase Price, less (b) the Estimated Closing Indebtedness Amount, less (c) the Purchase Price Escrow Amount, plus (d) the Estimated Closing Cash Amount.
“Cash Purchase Price” means (i) $54,000,000, if the aggregate of the gross proceeds made available to GTY from any Alternative Financing Sources and the amount of funds in the Trust Account is less than $325,000,000 at Closing or (ii) $60,000,000, if the aggregate of the gross proceeds made available to GTY from any Alternative Financing Sources and the amount of funds in the Trust Account is equal to or greater than $325,000,000.
“Debt” means, without duplication, with respect to any Person, any (a) obligations relating to indebtedness for borrowed money, (b) obligations evidenced by bonds, notes, debentures or similar instruments, (c) obligations in respect of capitalized leases, (d) the principal or face amount of banker’s acceptances, surety bonds, performance bonds or letters of credit (in each case whether or not drawn), (e) any bonuses (including transaction-related bonuses), (f) any profit sharing payable, distributions payable, notes payable, or loans/advances payable, (g) any bank overdrafts, (h) any other liabilities recorded in accordance with ASPE on the balance sheet of each Company as of the Closing, including remaining obligations due to current or former employees, (i) any entity level Taxes payable and, for clarity, all payroll Taxes associated with transaction bonuses or other transaction based payments, past due payroll taxes, (j) 15% of deferred revenue/contract liabilities as of the 11:59 p.m. on December 31, 2018, notwithstanding the fact that “Debt” will otherwise be calculated as of immediately prior to Closing, (k) indebtedness or obligations of the types referred to in the preceding clauses (a) through (l) of any other Person secured by any Lien, and (i) obligations in the nature of guarantees of obligations of the type described in clauses (a) through (i) above of any other Person, in each case together with all accrued interest thereon and any applicable prepayment, redemption, breakage, make-whole or other premiums, fees or penalties; provided, however, for greater certainty, “Debt” shall not include (i) any earnout payments or other similar payments
