DAY PERIOD;
(VII) ZONING RESTRICTIONS, EASEMENTS, LICENSES, OR OTHER RESTRICTIONS ON THE USE
OF REAL PROPERTY OR OTHER MINOR IRREGULARITIES IN TITLE (INCLUDING LEASEHOLD
TITLE) THERETO, SO LONG AS THE SAME DO NOT MATERIALLY IMPAIR THE USE, VALUE, OR
MARKETABILITY OF SUCH REAL PROPERTY, LEASES OR LEASEHOLD ESTATES; (VIII) LIENS
SECURING INDEBTEDNESS OWED BY A SUBSIDIARY TO BORROWER; (IX) SECURITY INTERESTS
SECURING PURCHASE MONEY INDEBTEDNESS IN CAPITAL ASSETS, THE ACQUISITION OF WHICH
IS PERMITTED BY THIS AGREEMENT, AND SO LONG AS THE SECURITY INTEREST DOES NOT
ENCUMBER ANY ASSET OTHER THAN THE ASSET ACQUIRED; (X) ANY LIEN LISTED AS A
PERMITTED ENCUMBRANCE ON THE DISCLOSURE SCHEDULE REFERRED TO IN EXHIBIT A TO THE
FIFTH AMENDMENT; AND (XI) THE
2
REFINANCING OF THE REAL PROPERTY MORTGAGES REFERRED TO IN THE DISCLOSURE
SCHEDULE REFERRED TO IN EXHIBIT A TO THE FIFTH AMENDMENT, PROVIDED THAT SUCH
REFINANCING COVERS THE SAME PROPERTY COVERED BY THE ORIGINAL MORTGAGES, SECURES
A PRINCIPAL AMOUNT NOT IN EXCESS OF THAT SECURED BY SUCH MORTGAGES ON THE DATE
OF REFINANCING, AND THE TERMS OF SUCH REFINANCING HAVE ALL BEEN NEGOTIATED AT
ARMS LENGTH AND ARE ON FAIR MARKET TERMS..
2.2
NEW DEFINITIONS.
THE FOLLOWING DEFINITIONS
ARE HEREBY ADDED TO SECTION 1 OF THE AGREEMENT:
"CAPITALIZED LEASE OBLIGATION" SHALL MEAN OBLIGATIONS UNDER A LEASE (TO PAY RENT
OR OTHER AMOUNTS UNDER ANY LEASE OR OTHER ARRANGEMENT CONVEYING THE RIGHT TO
USE) THAT ARE REQUIRED TO BE CAPITALIZED FOR FINANCIAL REPORTING PURPOSES IN
ACCORDANCE WITH GAAP.
THE AMOUNT OF A CAPITALIZED LEASE OBLIGATION IS THE
CAPITALIZED AMOUNT OF SUCH OBLIGATION DETERMINED IN ACCORDANCE WITH GAAP.
"CONSOLIDATED ADJUSTED EBITDA" SHALL MEAN, FOR ANY PERIOD, FOR BORROWER AND ITS
SUBSIDIARIES ON A CONSOLIDATED BASIS, THE SUM (WITHOUT DUPLICATION) OF:
(A) CONSOLIDATED NET INCOME; PLUS (B) THE SUM OF (I) FEDERAL, STATE, LOCAL, AND
FOREIGN INCOME TAXES, (II) INTEREST EXPENSE (INCLUDING THE INTEREST PORTION OF
ANY CAPITALIZED LEASE OBLIGATIONS) AND (III) DEPLETION, DEPRECIATION AND
AMORTIZATION; PLUS (C) RESTRUCTURING EXPENSES; PLUS (D) THE SUM OF EXTRAORDINARY
EXPENSES AND NONCASH EXPENSES; MINUS (E) THE SUM OF EXTRAORDINARY GAINS AND
NONCASH GAINS.
"DERIVATIVES CONTRACT" SHALL MEAN (A) ANY TRANSACTION (INCLUDING ANY MASTER
AGREEMENT, CONFIRMATION OR OTHER AGREEMENT WITH RESPECT TO ANY SUCH TRANSACTION)
NOW EXISTING OR HEREAFTER ENTERED INTO BY BORROWER OR ANY OF ITS SUBSIDIARIES
(I) WHICH IS A RATE SWAP TRANSACTION, SWAP OPTION, BASIS SWAP, FORWARD RATE
TRANSACTION, COMMODITY SWAP, COMMODITY OPTION, EQUITY OR EQUITY INDEX SWAP,
EQUITY OR EQUITY INDEX OPTION, BOND OPTION, INTEREST RATE OPTION, FOREIGN
EXCHANGE TRANSACTION, CAP TRANSACTION, FLOOR TRANSACTION, COLLAR TRANSACTION,
CURRENCY SWAP TRANSACTION, CROSS-CURRENCY RATE SWAP TRANSACTION, CURRENCY
OPTION, CREDIT PROTECTION TRANSACTION, CREDIT SWAP, CREDIT DEFAULT SWAP, CREDIT
DEFAULT OPTION, TOTAL RETURN SWAP, CREDIT SPREAD TRANSACTION, REPURCHASE
TRANSACTION, REVERSE REPURCHASE TRANSACTION, BUY/SELL-BACK TRANSACTION,
SECURITIES LENDING TRANSACTION, WEATHER INDEX TRANSACTION OR FORWARD PURCHASE OR
SALE OF A SECURITY, COMMODITY OR OTHER FINANCIAL INSTRUMENT OR INTEREST
(INCLUDING ANY OPTION WITH RESPECT TO ANY OF THESE TRANSACTIONS) OR (II) WHICH
IS A TYPE OF TRANSACTION THAT IS SIMILAR TO ANY TRANSACTION