PERSON, ANY CORPORATION OR OTHER PERSON AT LEAST A MAJORITY OF THE SHARES OF
STOCK OR OTHER OWNERSHIP INTERESTS OF WHICH HAVING GENERAL VOTING POWER UNDER
ORDINARY CIRCUMSTANCES TO ELECT A MAJORITY OF THE BOARD OF DIRECTORS OR SIMILAR
GOVERNING BODY OF SUCH CORPORATION OR OTHER ENTITY (IRRESPECTIVE OF WHETHER OR
NOT AT THE TIME STOCK OF ANY OTHER CLASS OR CLASSES SHALL HAVE OR MIGHT HAVE
VOTING POWER BY REASON OF THE HAPPENING OF ANY CONTINGENCY) IS, AT THE TIME AS
OF WHICH THE DETERMINATION IS BEING MADE, OWNED BY SUCH PERSON, OR ONE OR MORE
OF ITS SUBSIDIARIES OR BY SUCH PERSON AND ONE OR MORE OF ITS SUBSIDIARIES.
SECTION 5.33.
"THIRD PARTY TRANSFEREE" SHALL HAVE
THE MEANING ASCRIBED TO SUCH TERM IN THE AMENDED AND RESTATED STOCKHOLDERS
AGREEMENT.
SECTION 5.34.
"TOTAL DEBT" SHALL MEAN ALL
OBLIGATIONS OF THE COMPANY AND ITS SUBSIDIARIES FOR MONEY BORROWED, AT SUCH TIME
(INCLUDING ALL LONG-TERM SENIOR AND SUBORDINATED INDEBTEDNESS, ALL SHORT-TERM
INDEBTEDNESS, THE STATED AMOUNT OF ALL LETTERS OF CREDIT ISSUED FOR THE ACCOUNT
OF THE COMPANY OR ANY OF ITS SUBSIDIARIES AND (WITHOUT DUPLICATION) ALL
UNREIMBURSED DRAWS THEREUNDER (BUT EXCLUDING TRADE LETTERS OF CREDIT)), NET OF
CASH (OTHER THAN WORKING CAPITAL) OR CASH EQUIVALENT SECURITIES, AS SHOWN ON THE
CONSOLIDATED QUARTERLY OR ANNUAL FINANCIAL STATEMENTS, INCLUDING THE NOTES
THERETO, OF THE COMPANY AND ITS SUBSIDIARIES INCLUDED IN THE COMPANY'S FILINGS
UNDER THE EXCHANGE ACT FOR SUCH PERIOD, DETERMINED IN ACCORDANCE WITH GAAP,
PROVIDED, HOWEVER, THAT TOTAL DEBT SHALL NOT INCLUDE HEDGING, PLEDGING,
SECURITIZATION OR SIMILAR TRANSACTIONS INVOLVING SECURITIES OWNED BY THE COMPANY
OR ITS SUBSIDIARIES TO MONETIZE THE UNDERLYING SECURITIES, TO THE EXTENT SUCH
SECURITIES ARE THE SOLE MEANS OF SATISFYING SUCH OBLIGATIONS AND OTHERWISE THE
FAIR VALUE THEREOF.
SECTION 5.35.
"TOTAL DEBT RATIO" SHALL MEAN, AT ANY
TIME, THE RATIO OF (I) TOTAL DEBT OF THE COMPANY AND ITS SUBSIDIARIES ON A
COMBINED CONSOLIDATED BASIS AS OF SUCH TIME TO (II) EBITDA FOR THE FOUR FISCAL
QUARTER PERIOD ENDING AS OF THE LAST DAY OF THE MOST RECENTLY ENDED FISCAL
QUARTER AS OF SUCH TIME.
SECTION 5.36.
"TOTAL EQUITY SECURITIES" AT ANY TIME
SHALL MEAN, SUBJECT TO THE NEXT SENTENCE, THE TOTAL NUMBER OF THE COMPANY'S
OUTSTANDING EQUITY SECURITIES CALCULATED ON A COMPANY COMMON STOCK EQUIVALENT
BASIS.
ANY EQUITY SECURITIES BENEFICIALLY OWNED BY A PERSON THAT ARE NOT
OUTSTANDING VOTING SECURITIES BUT THAT, UPON EXERCISE, CONVERSION OR EXCHANGE,
WOULD BECOME VOTING SECURITIES, SHALL BE DEEMED TO BE OUTSTANDING FOR THE
PURPOSE OF COMPUTING TOTAL EQUITY SECURITIES AND THE PERCENTAGE OF EQUITY
SECURITIES OWNED BY SUCH
PERSON BUT SHALL NOT BE DEEMED TO BE OUTSTANDING FOR
THE PURPOSE OF COMPUTING TOTAL EQUITY SECURITIES AND THE PERCENTAGE OF THE
EQUITY SECURITIES OWNED BY ANY OTHER PERSON.
SECTION 5.37.
"TRANSFER" SHALL MEAN, DIRECTLY OR
INDIRECTLY, TO SELL, TRANSFER, ASSIGN, PLEDGE, ENCUMBER, HYPOTHECATE OR
SIMILARLY DISPOSE OF, EITHER VOLUNTARILY OR INVOLUNTARILY, OR TO ENTER INTO ANY
CONTRACT, OPTION OR OTHER ARRANGEMENT OR UNDERSTANDING WITH RESPECT TO THE SALE,
TRANSFER, ASSIGNMENT, PLEDGE, ENCUMBRANCE, HYPOTHECATION