REFERRED TO IN
CLAUSE (I) ABOVE THAT IS CURRENTLY, OR IN THE FUTURE BECOMES, RECURRENTLY
ENTERED INTO IN THE FINANCIAL MARKETS (INCLUDING TERMS AND CONDITIONS
INCORPORATED BY REFERENCE IN SUCH AGREEMENT) AND WHICH IS A FORWARD, SWAP,
FUTURE, OPTION OR OTHER DERIVATIVE ON ONE OR MORE RATES, CURRENCIES,
COMMODITIES, EQUITY SECURITIES OR OTHER EQUITY INSTRUMENTS, DEBT SECURITIES OR
OTHER DEBT INSTRUMENTS, ECONOMIC INDICES OR MEASURES OF ECONOMIC RISK OR VALUE,
OR OTHER BENCHMARKS AGAINST WHICH PAYMENTS OR DELIVERIES ARE TO BE MADE, AND
(B) ANY COMBINATION OF THESE TRANSACTIONS.
"EQUITY INTEREST" SHALL MEAN, WITH RESPECT TO ANY PERSON, ANY SHARE OF CAPITAL
STOCK OF (OR OTHER OWNERSHIP OR PROFIT INTERESTS IN) SUCH PERSON, ANY WARRANT,
OPTION OR OTHER RIGHT FOR THE PURCHASE OR OTHER ACQUISITION FROM SUCH PERSON OF
ANY SHARE OF CAPITAL STOCK OF (OR OTHER OWNERSHIP OR PROFIT INTERESTS IN) SUCH
PERSON WHETHER OR NOT CERTIFICATED, ANY SECURITY CONVERTIBLE INTO OR
EXCHANGEABLE FOR ANY SHARE OF CAPITAL STOCK OF (OR OTHER OWNERSHIP OR PROFIT
INTERESTS IN) SUCH PERSON OR WARRANT, RIGHT OR OPTION FOR THE PURCHASE OR OTHER
ACQUISITION FROM SUCH PERSON OF SUCH SHARES (OR SUCH OTHER INTERESTS), AND ANY
OTHER OWNERSHIP OR PROFIT INTEREST IN SUCH PERSON (INCLUDING, WITHOUT
LIMITATION, PARTNERSHIP,
3
MEMBER OR TRUST INTERESTS THEREIN), WHETHER VOTING OR NONVOTING, AND WHETHER OR
NOT SUCH SHARE, WARRANT, OPTION, RIGHT OR OTHER INTEREST IS AUTHORIZED OR
OTHERWISE EXISTING ON ANY DATE OF DETERMINATION.
"FIFTH AMENDMENT" SHALL MEAN THE FIFTH AMENDMENT TO REVOLVING LINE OF CREDIT
LOAN AGREEMENT BETWEEN BORROWER AND LENDER DATED ON OR ABOUT SEPTEMBER 30, 2009.
"GOVERNMENTAL AUTHORITY" SHALL MEAN ANY NATIONAL, STATE OR LOCAL GOVERNMENT
(WHETHER DOMESTIC OR FOREIGN), ANY POLITICAL SUBDIVISION THEREOF OR ANY OTHER
GOVERNMENTAL, QUASI-GOVERNMENTAL, JUDICIAL, ADMINISTRATIVE, PUBLIC OR STATUTORY
INSTRUMENTALITY, AUTHORITY, BODY, AGENCY, BUREAU, COMMISSION, BOARD, DEPARTMENT
OR OTHER ENTITY (INCLUDING, WITHOUT LIMITATION, THE FEDERAL DEPOSIT INSURANCE
CORPORATION, THE COMPTROLLER OF THE CURRENCY OR THE FEDERAL RESERVE BOARD, ANY
CENTRAL BANK OR ANY COMPARABLE AUTHORITY) OR ANY ARBITRATOR WITH AUTHORITY TO
BIND A PARTY AT LAW.
"INDEBTEDNESS" SHALL MEAN , WITH RESPECT TO A PERSON, AT THE TIME OF COMPUTATION
THEREOF, ALL OF THE FOLLOWING (WITHOUT DUPLICATION): (A) ALL OBLIGATIONS OF SUCH
PERSON IN RESPECT OF MONEY BORROWED; (B) ALL OBLIGATIONS OF SUCH PERSON (OTHER
THAN TRADE DEBT INCURRED IN THE ORDINARY COURSE OF BUSINESS), WHETHER OR NOT FOR
MONEY BORROWED (I) REPRESENTED BY NOTES PAYABLE, OR DRAFTS ACCEPTED, IN EACH
CASE REPRESENTING EXTENSIONS OF CREDIT, (II) EVIDENCED BY BONDS, DEBENTURES,
NOTES OR SIMILAR INSTRUMENTS, OR (III) CONSTITUTING PURCHASE MONEY INDEBTEDNESS,
CONDITIONAL SALES CONTRACTS, TITLE RETENTION DEBT INSTRUMENTS OR OTHER SIMILAR
INSTRUMENTS, UPON WHICH INTEREST CHARGES ARE CUSTOMARILY PAID OR THAT ARE ISSUED
OR ASSUMED AS FULL OR PARTIAL PAYMENT FOR PROPERTY; (C) CAPITALIZED LEASE
OBLIGATIONS OF SUCH PERSON; (D) ALL REIMBURSEMENT OBLIGATIONS OF SUCH PERSON
UNDER OR IN RESPECT OF ANY LETTERS OF CREDIT OR ACCEPTANCES (WHETHER OR NOT THE
SAME HAVE BEEN PRESENTED FOR PAYMENT); (E) ALL OFF-BALANCE SHEET OBLIGATIONS OF
SUCH PERSON; (F) ALL OBLIGATIONS