Section 1.18.The following shall be added as new definitions in alphabetical order to Schedule A – Defined Terms of the Note Purchase Agreement:
““Acquisition” means, whether through a single transaction or a series of related transactions, (a) the acquisition of (i) a majority of the equity interests in another Person that are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even though the right to so vote has been suspended by the happening of any such contingency, or (ii) other controlling ownership interests in another Person (including the purchase of an option, warrant or convertible or similar type security to acquire such ownership interests at the time it becomes exercisable by the holder thereof), whether by purchase of such equity or other ownership interests or upon the exercise of an option or warrant for, or conversion of securities into, such equity or other ownership interests, or (b) the acquisition of assets of another Person that constitute all or substantially all of the assets of such Person or of a division, line of business or other business unit of such Person.”
““Consolidated EBITDA” means, for any period, for the Company and its Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Earnings for such period, plus (a) the following to the extent deducted in calculating such Consolidated Net Earnings: (i) Consolidated Interest Expense for such period, (ii) tax expense for federal, state, local and foreign income taxes for such period (net of tax benefit), (iii) depreciation and amortization expense for such period, (iv) othernon-recurringnon-cash charges, writedowns, expenses, losses or other items reducing such Consolidated Net Earnings for such period, including any impairment charges or the impact of purchase accounting (excluding any suchnon-cash charge, writedown, expense, loss or item to the extent that it represents an accrual or reserve for a cash expenditure for a future period), (v) cost of employee services received in share-based payment transactions (in accordance with FASB ASC 718) that do not represent a cash item in such period or any future period and(vi) Non-Cash ESOP Expenses of the Company and its Subsidiaries, excluding, however, items (i) through (vi) above derived from or attributable toNon-Recourse Investments orNon-Recourse Debt, and minus (b) to the extent included in calculating such Consolidated Net Earnings, allnon-cash items increasing Consolidated Net Earnings for such period.”
““Fixed Charge Coverage Ratio” is defined in Section 10.7.”
““First Amendment” means First Amendment to the Note Purchase Agreement dated as of August 10, 2018 by and among the Company and the holders of Notes party thereto.”
““Material Permitted Acquisition” means one or more Permitted Acquisitions whose total purchase consideration (including earnout payments and other deferred payments, and the amount of any Debt assumed or acquired by the Company in connection with such acquisition, but excluding transaction costs and expenses) is $75,000,000 or higher.”
““Measurement Period” means, at any date of determination, the most recently completed four fiscal quarters of the Company or, for purposes of determining Pro Forma Compliance, the most recently completed four fiscal quarters of the Company for which financial statements have been delivered pursuant to Section 7.1.”
““Permitted Acquisition” means an Acquisition by the Company or any Subsidiary of property, a line of business or another Person engaged in a line of business substantially the same as the Line of Business (the “target”), which Acquisition has been approved by the board of directors of the target, so long as: (a) no Default or Event of Default exists or would result after giving effect to the completion of such Acquisition; and (b) the Company has demonstrated that, after giving Pro Forma Effect to such Acquisition, the Company and its Subsidiaries are in Pro Forma Compliance.”
