shall mean (without duplication) any and all amounts owing or to be owing
by the Borrower to the Administrative Agent, the Issuing Bank, the Lenders
and/or any Affiliate of any Lender in connection with the Loan Documents and the
Letter of Credit application, any other obligation, liability or indebtedness,
and any Swap Agreements now or hereafter arising between the Borrower and any
Lender or any Affiliate of any Lender and permitted by the terms of this
Agreement and all renewals, extensions and/or rearrangements of any of the
foregoing.
4
"Default" means any event or condition which constitutes an Event of Default or
which upon notice, lapse of time or both would, unless cured or waived, become
an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedules 3.06, 3.07, or 3.11.
"Disposition" means any sale, assignment, transfer or other disposition of any
Property (whether now owned or hereafter acquired) by the Borrower or any of its
Subsidiaries to any other Person (other than the Borrower or its Subsidiaries).
"dollars" or "$" refers to lawful money of the United States of America.
"EBITDA" shall mean, for any period, the sum of the following for the Borrower
and its Subsidiaries (determined without duplication in accordance with GAAP):
(A)
NET INCOME FOR SUCH PERIOD, LESS
EXTRAORDINARY GAINS FOR SUCH PERIOD TO THE EXTENT INCLUDED IN NET INCOME FOR
SUCH PERIOD (INCLUDING GAINS ON THE SALES OF ASSETS OUTSIDE OF THE ORDINARY
COURSE OF BUSINESS AND $1,500,000 OF NET SETTLEMENT PROCEEDS RECEIVED IN
CONNECTION WITH THE SOUTHERN PEAKS LITIGATION), PLUS NON-RECURRING EXPENSES,
PLUS
(B)
INTEREST EXPENSE FOR SUCH PERIOD,
AMORTIZATION OF OR WRITE-OFF OF DEBT DISCOUNT AND DEBT ISSUANCE COSTS AND
COMMISSIONS, DISCOUNTS AND OTHER FEES AND CHARGES ASSOCIATED WITH INDEBTEDNESS
(INCLUDING LETTERS OF CREDIT), PLUS
(C)
PROVISIONS FOR FEDERAL, STATE, LOCAL AND
FOREIGN INCOME, FRANCHISE AND VALUE ADDED TAXES, WHETHER PAID OR DEFERRED, MADE
DURING SUCH PERIOD, TO THE EXTENT DEDUCTED IN DETERMINING NET INCOME FOR SUCH
PERIOD, PLUS
(D)
THE AGGREGATE AMOUNT OF DEPRECIATION AND
AMORTIZATION EXPENSE FOR SUCH PERIOD, TO THE EXTENT DEDUCTED IN DETERMINING NET
INCOME FOR SUCH PERIOD, PLUS
(E)
THE AGGREGATE AMOUNT OF ANY WRITE-OFF OF
EXPENSES ARISING IN CONNECTION WITH THE LOANS, IN EACH CASE, TO THE EXTENT
DEDUCTED IN DETERMINING NET INCOME FOR SUCH PERIOD; PLUS
(F)
THE AGGREGATE AMOUNT OF NON-CASH EXPENSE
FOR SUCH PERIOD ASSOCIATED WITH THE CLOSURE AND POST-CLOSURE RESERVES OF A PLANT
OR FACILITY OWNED OR LEASED BY THE BORROWER OR ANY OF ITS SUBSIDIARIES; PLUS
(G)
PRO FORMA EBITDA FOR BUSINESS ACQUISITIONS
(SUCH PRO FORMA ADJUSTMENTS HAVING BEEN APPROVED BY THE ADMINISTRATIVE AGENT);
PLUS
(H)
PRO FORMA EBITDA FOR TAKE OR PAY CONTRACTS;
PLUS
(I)
AN AMOUNT EQUAL TO THE PAYMENT OF
INTEREST AND PRINCIPAL RELATED TO THE MCF DEBT, TO THE EXTENT DEDUCTED IN
DETERMINING NET INCOME FOR SUCH PERIOD; PLUS
(J)
AMORTIZATION OF INTANGIBLES (INCLUDING,
BUT NOT LIMITED TO, GOODWILL) AND ORGANIZATION COSTS, AND AMORTIZATION AND/OR
IMPAIRMENT CHARGES WITH RESPECT