arcee-ai/sec-data-full · Datasets at Hugging Face

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case may be, at the time of such sale, as reflected on our consolidated balance sheet prepared
in accordance with GAAP, exceeded (y) the net sales price of such capital stock or
assets, as the case may be; provided , that such absolute amount thereof shall not
be less than zero. ● Our
“ consolidated net equity ” will be equal to, as of any date, the sum of (i) our consolidated total assets (as determined in accordance with GAAP) as of such
date, plus (ii) the aggregate amount of asset impairments (as determined in accordance
with GAAP) that were taken relating to any businesses owned by us as of such date, plus (iii) our consolidated accumulated amortization of intangibles (as determined in accordance
with GAAP), as of such date minus (iv) our consolidated total liabilities (as determined
in accordance with GAAP) as of such date. ● A business’ “ contribution-based profits” will
be equal to, for any measurement period as of any calculation date, the sum of (i) the aggregate amount of such business’ net income
(as determined in accordance with GAAP and as adjusted for minority interests) with respect to such measurement period (without giving
effect to (x) any capital gains or capital losses realized by such business that arise with respect to the sale of capital stock or assets
held by such business and which sale gave rise to a sale event and the calculation of profit allocation or (y) any expense attributable
to the accrual or payment of any amount of profit allocation or any amount arising under the supplemental put agreement, in each case,
to the extent included in the calculation of such business’ net income), plus (ii) the absolute aggregate amount of such
business’ loan expense with respect to such measurement period, minus (iii) the absolute aggregate amount of such business’
allocated share of our overhead with respect to such measurement period. ● Our “ cumulative capital gains ” will be equal to,
as of any calculation date, the aggregate amount of capital gains realized by us as of such calculation date, after giving effect to any
capital gains realized by us on such calculation date, since its inception. 21 ● Our “ cumulative capital losses ” will be equal to,
as of any calculation date, the aggregate amount of capital losses realized by us as of such calculation date, after giving effect to
any capital losses realized by us on such calculation date, since its inception. ● Our
“ cumulative gains and losses ” will be equal to, as of any calculation
date, the sum of (i) the amount of cumulative capital gains as of such calculation
date, minus (ii) the absolute amount of cumulative capital losses as of such calculation
date. ● The
“ high-water mark ” will be equal to, as of any calculation date, the highest
positive amount of capital gains and losses as of such calculation date that were calculated
in connection with a qualifying trigger event that occurred prior to such calculation date. ● The
“ high-water mark allocation ” will be equal to, as of any calculation date,
the product of (i) the amount of the high-water mark as of such calculation date, multiplied
by (ii) 20%. ● A
business’ “ level 1 hurdle amount ” will be equal to, as of any calculation
date, the product of (i) (x) the quarterly hurdle rate of 2.00% (8% annualized), multiplied
by (y) the number of fiscal quarters ending during such business’ measurement period
as of such calculation date, multiplied by (ii) a business’ average allocated
share of our consolidated equity for each fiscal quarter ending during such measurement period. ● A
business’ “ level 2 hurdle amount ” will be equal to, as of any calculation
date, the product of (i) (x) the quarterly hurdle rate of 2.5% (10% annualized, which is
125% of the 8% annualized hurdle rate), multiplied by (y) the number of fiscal quarters
ending during such business’ measurement period as of such calculation date, multiplied
by (ii) a business’ average allocated share of our consolidated equity for each
fiscal quarter ending during such measurement period. ● A
business’ “ loan expense ” will be equal to, with respect to any measurement
period as of any calculation date, the aggregate amount of all interest or other expenses
paid by such business with respect to indebtedness of such business to either our company
or other company businesses with respect to such measurement period. ● The “ measurement period ” will mean, with respect
to any business as of any calculation date, the period from and including the later of (i) the date upon which we acquired a controlling
interest in such business and (ii) the immediately preceding calculation date as of which contribution-based profits were calculated with
respect to such business and with respect to which profit allocation were paid (or, at the election of the allocation member, deferred)
by us up to and including such calculation date. ● Our “ overhead ” will be equal to, with respect to
any fiscal quarter, the sum of (i) that portion of our operating expenses (as determined in accordance with GAAP) (without giving
effect to any expense attributable to the accrual or payment of any amount of profit allocation or any amount arising under the supplemental
put agreement to the extent included in the calculation of our operating expenses), including any management fees actually paid by us
to our manager, with respect to such fiscal quarter that are not attributable to any of the businesses owned by us (i.e., operating expenses
that do not correspond to operating expenses of such businesses with respect to such fiscal quarter), plus (ii) our accrued interest
expense (as determined in accordance with GAAP) on any outstanding third-party indebtedness with respect to such fiscal quarter, minus (iii) revenue, interest income and other income reflected in our unconsolidated financial statements as prepared in accordance with GAAP. ● A
“ qualifying trigger event ” will mean, with respect to any business, a
trigger event that gave rise to a calculation of total profit allocation with respect to
such business as of any calculation date and (ii) where the amount of total profit allocation
so calculated as of such calculation date exceeded such business’ level 2 hurdle amount
as of such calculation date. ● A
business’ “ quarterly allocated share of our consolidated equity ”
will be equal to, with respect to any fiscal quarter, the product of (i) our consolidated
net equity as of the last day of such fiscal quarter, multiplied by (ii) a fraction,
the numerator of which is such business’ adjusted net assets as of the last day of
such fiscal quarter and the denominator of which is the sum of (x) our adjusted net
assets as of the last day of such fiscal quarter, minus (y) the aggregate amount of
any cash and cash equivalents as such amount is reflected on our consolidated balance sheet
as prepared in accordance with GAAP that is not taken into account in the calculation of
any business’ adjusted net assets as of the last day of such fiscal quarter. ● A business’ “ quarterly share of our overhead ”
will be equal to, with respect to any fiscal quarter, the product of (i) the absolute amount of our overhead with respect to such
fiscal quarter, multiplied by (ii) a fraction, the numerator of which is such business’ adjusted net assets as of the last
day of such fiscal quarter and the denominator of which is our adjusted net assets as of the last day of such fiscal quarter. ● An
entity’s “ third-party indebtedness ” means any indebtedness of such
entity owed to any third-party lenders that are not affiliated with such entity. 22 Supplemental Put Provision In addition to the provisions discussed above,
in consideration of our manager’s acquisition of the allocation shares, our operating agreement contains a supplemental put provision
pursuant to which our manager will have the right to cause us to purchase the allocation shares then owned by our manager upon termination
of the management services agreement. If the management services agreement is terminated
at any time or our manager resigns, then our manager will have the right, but not the obligation, for one year from the date of such termination
or resignation, as the case may be, to elect to cause us to purchase all of the allocation shares then owned by our manager for the put
price as of the put exercise date. For purposes of this provision, the “put
price” is equal to, as of any exercise date, (i) if we terminate the management services agreement, the sum of two separate, independently
made calculations of the aggregate amount of manager’s profit allocation as of such exercise date or (ii) if our manager resigns,
the average of two separate, independently made calculations of the aggregate amount of manager’s profit allocation as of such exercise
date, in each case, calculated assuming that (x) all of the businesses are sold in an orderly fashion for fair market value as of such
exercise date in the order in which the controlling interest in each business was acquired or otherwise obtained by us, (y) the last day
of the fiscal quarter ending immediately prior to such exercise date is the relevant calculation date for purposes of calculating manager’s
profit allocation as of such exercise date. Each of the two separate, independently made calculations of our manager’s profit allocation
for purposes of calculating the put price will be performed by a different investment bank that is engaged by us at our cost and expense.
The put price will be adjusted to account for a final “true-up” of our manager’s profit allocation. We and our manager can mutually agree to permit
us to issue a note in lieu of payment of the put price when due; provided, that if our manager resigns and terminates the management services
agreement, then we will have the right, in our sole discretion, to issue a note in lieu of payment of the put price when due. In either
case the note would have an aggregate principal amount equal to the put price, would bear interest at a rate of LIBOR plus 4.0% per annum,
would mature on the first anniversary of the date upon which the put price was initially due, and would be secured by the then-highest
priority lien available to be placed on our equity interests in each of our businesses. Our obligations under the put provision of our
operating agreement are absolute and unconditional. In addition, we will be subject to certain obligations and restrictions upon exercise
of our manager’s put right until such time as our obligations under the put provision of our operating agreement, including any
related note, have been satisfied in full, includin ● subject to our right to issue a note in the circumstances described above, we must use commercially reasonable
efforts to raise sufficient debt or equity financing to permit us to pay the put price or note when due and obtain approvals, waivers
and consents or otherwise remove any restrictions imposed under contractual obligations or applicable law or regulations that have the

case may be, at the time of such sale, as reflected on our consolidated balance sheet prepared

in accordance with GAAP, exceeded (y) the net sales price of such capital stock or

assets, as the case may be; provided , that such absolute amount thereof shall not

be less than zero. ● Our

“ consolidated net equity ” will be equal to, as of any date, the sum of (i) our consolidated total assets (as determined in accordance with GAAP) as of such

date, plus (ii) the aggregate amount of asset impairments (as determined in accordance

with GAAP) that were taken relating to any businesses owned by us as of such date, plus (iii) our consolidated accumulated amortization of intangibles (as determined in accordance

with GAAP), as of such date minus (iv) our consolidated total liabilities (as determined

in accordance with GAAP) as of such date. ● A business’ “ contribution-based profits” will

be equal to, for any measurement period as of any calculation date, the sum of (i) the aggregate amount of such business’ net income

(as determined in accordance with GAAP and as adjusted for minority interests) with respect to such measurement period (without giving

effect to (x) any capital gains or capital losses realized by such business that arise with respect to the sale of capital stock or assets

held by such business and which sale gave rise to a sale event and the calculation of profit allocation or (y) any expense attributable

to the accrual or payment of any amount of profit allocation or any amount arising under the supplemental put agreement, in each case,

to the extent included in the calculation of such business’ net income), plus (ii) the absolute aggregate amount of such

business’ loan expense with respect to such measurement period, minus (iii) the absolute aggregate amount of such business’

allocated share of our overhead with respect to such measurement period. ● Our “ cumulative capital gains ” will be equal to,

as of any calculation date, the aggregate amount of capital gains realized by us as of such calculation date, after giving effect to any

capital gains realized by us on such calculation date, since its inception. 21 ● Our “ cumulative capital losses ” will be equal to,

as of any calculation date, the aggregate amount of capital losses realized by us as of such calculation date, after giving effect to

any capital losses realized by us on such calculation date, since its inception. ● Our

“ cumulative gains and losses ” will be equal to, as of any calculation

date, the sum of (i) the amount of cumulative capital gains as of such calculation

date, minus (ii) the absolute amount of cumulative capital losses as of such calculation

date. ● The

“ high-water mark ” will be equal to, as of any calculation date, the highest

positive amount of capital gains and losses as of such calculation date that were calculated

in connection with a qualifying trigger event that occurred prior to such calculation date. ● The

“ high-water mark allocation ” will be equal to, as of any calculation date,

the product of (i) the amount of the high-water mark as of such calculation date, multiplied

by (ii) 20%. ● A

business’ “ level 1 hurdle amount ” will be equal to, as of any calculation

date, the product of (i) (x) the quarterly hurdle rate of 2.00% (8% annualized), multiplied

by (y) the number of fiscal quarters ending during such business’ measurement period

as of such calculation date, multiplied by (ii) a business’ average allocated

share of our consolidated equity for each fiscal quarter ending during such measurement period. ● A

business’ “ level 2 hurdle amount ” will be equal to, as of any calculation

date, the product of (i) (x) the quarterly hurdle rate of 2.5% (10% annualized, which is

125% of the 8% annualized hurdle rate), multiplied by (y) the number of fiscal quarters

ending during such business’ measurement period as of such calculation date, multiplied

by (ii) a business’ average allocated share of our consolidated equity for each

fiscal quarter ending during such measurement period. ● A

business’ “ loan expense ” will be equal to, with respect to any measurement

period as of any calculation date, the aggregate amount of all interest or other expenses

paid by such business with respect to indebtedness of such business to either our company

or other company businesses with respect to such measurement period. ● The “ measurement period ” will mean, with respect

to any business as of any calculation date, the period from and including the later of (i) the date upon which we acquired a controlling

interest in such business and (ii) the immediately preceding calculation date as of which contribution-based profits were calculated with

respect to such business and with respect to which profit allocation were paid (or, at the election of the allocation member, deferred)

by us up to and including such calculation date. ● Our “ overhead ” will be equal to, with respect to

any fiscal quarter, the sum of (i) that portion of our operating expenses (as determined in accordance with GAAP) (without giving

effect to any expense attributable to the accrual or payment of any amount of profit allocation or any amount arising under the supplemental

put agreement to the extent included in the calculation of our operating expenses), including any management fees actually paid by us

to our manager, with respect to such fiscal quarter that are not attributable to any of the businesses owned by us (i.e., operating expenses

that do not correspond to operating expenses of such businesses with respect to such fiscal quarter), plus (ii) our accrued interest

expense (as determined in accordance with GAAP) on any outstanding third-party indebtedness with respect to such fiscal quarter, minus (iii) revenue, interest income and other income reflected in our unconsolidated financial statements as prepared in accordance with GAAP. ● A

“ qualifying trigger event ” will mean, with respect to any business, a

trigger event that gave rise to a calculation of total profit allocation with respect to

such business as of any calculation date and (ii) where the amount of total profit allocation

so calculated as of such calculation date exceeded such business’ level 2 hurdle amount

as of such calculation date. ● A

business’ “ quarterly allocated share of our consolidated equity ”

will be equal to, with respect to any fiscal quarter, the product of (i) our consolidated

net equity as of the last day of such fiscal quarter, multiplied by (ii) a fraction,

the numerator of which is such business’ adjusted net assets as of the last day of

such fiscal quarter and the denominator of which is the sum of (x) our adjusted net

assets as of the last day of such fiscal quarter, minus (y) the aggregate amount of

any cash and cash equivalents as such amount is reflected on our consolidated balance sheet

as prepared in accordance with GAAP that is not taken into account in the calculation of

any business’ adjusted net assets as of the last day of such fiscal quarter. ● A business’ “ quarterly share of our overhead ”

will be equal to, with respect to any fiscal quarter, the product of (i) the absolute amount of our overhead with respect to such

fiscal quarter, multiplied by (ii) a fraction, the numerator of which is such business’ adjusted net assets as of the last

day of such fiscal quarter and the denominator of which is our adjusted net assets as of the last day of such fiscal quarter. ● An

entity’s “ third-party indebtedness ” means any indebtedness of such

entity owed to any third-party lenders that are not affiliated with such entity. 22 Supplemental Put Provision In addition to the provisions discussed above,

in consideration of our manager’s acquisition of the allocation shares, our operating agreement contains a supplemental put provision

pursuant to which our manager will have the right to cause us to purchase the allocation shares then owned by our manager upon termination

of the management services agreement. If the management services agreement is terminated

at any time or our manager resigns, then our manager will have the right, but not the obligation, for one year from the date of such termination

or resignation, as the case may be, to elect to cause us to purchase all of the allocation shares then owned by our manager for the put

price as of the put exercise date. For purposes of this provision, the “put

price” is equal to, as of any exercise date, (i) if we terminate the management services agreement, the sum of two separate, independently

made calculations of the aggregate amount of manager’s profit allocation as of such exercise date or (ii) if our manager resigns,

the average of two separate, independently made calculations of the aggregate amount of manager’s profit allocation as of such exercise

date, in each case, calculated assuming that (x) all of the businesses are sold in an orderly fashion for fair market value as of such

exercise date in the order in which the controlling interest in each business was acquired or otherwise obtained by us, (y) the last day

of the fiscal quarter ending immediately prior to such exercise date is the relevant calculation date for purposes of calculating manager’s

profit allocation as of such exercise date. Each of the two separate, independently made calculations of our manager’s profit allocation

for purposes of calculating the put price will be performed by a different investment bank that is engaged by us at our cost and expense.

The put price will be adjusted to account for a final “true-up” of our manager’s profit allocation. We and our manager can mutually agree to permit

us to issue a note in lieu of payment of the put price when due; provided, that if our manager resigns and terminates the management services

agreement, then we will have the right, in our sole discretion, to issue a note in lieu of payment of the put price when due. In either

case the note would have an aggregate principal amount equal to the put price, would bear interest at a rate of LIBOR plus 4.0% per annum,

would mature on the first anniversary of the date upon which the put price was initially due, and would be secured by the then-highest

priority lien available to be placed on our equity interests in each of our businesses. Our obligations under the put provision of our

operating agreement are absolute and unconditional. In addition, we will be subject to certain obligations and restrictions upon exercise

of our manager’s put right until such time as our obligations under the put provision of our operating agreement, including any

related note, have been satisfied in full, includin ● subject to our right to issue a note in the circumstances described above, we must use commercially reasonable

efforts to raise sufficient debt or equity financing to permit us to pay the put price or note when due and obtain approvals, waivers

and consents or otherwise remove any restrictions imposed under contractual obligations or applicable law or regulations that have the