THE REAL PROPERTY AND RELATED ASSETS OF BORROWER LOCATED IN
BUNCOMBE COUNTY, NORTH CAROLINA.
(B)
"BANKRUPTCY COURT" SHALL MEAN THE UNITED STATES BANKRUPTCY COURT
OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.
(C)
"CHAPTER 11 CASES" SHALL MEAN THE CHAPTER 11 CASES OF BORROWER AND
GUARANTORS WHICH ARE BEING JOINTLY ADMINISTERED UNDER THE BANKRUPTCY CODE AND
ARE PENDING IN THE BANKRUPTCY COURT.
(D)
"BANKRUPTCY CODE" SHALL MEAN THE UNITED STATES BANKRUPTCY CODE,
BEING TITLE 11 OF THE UNITED STATES CODE AS ENACTED IN 1978, AS THE SAME HAS
HERETOFORE BEEN OR MAY HEREAFTER BE AMENDED, RECODIFIED, MODIFIED OR
SUPPLEMENTED, TOGETHER WITH ALL RULES, REGULATIONS AND INTERPRETATIONS
THEREUNDER OR RELATED THERETO.
(E)
"CAPITAL EXPENDITURES" SHALL MEAN FOR ANY PERSON FOR ANY PERIOD,
THE AGGREGATE OF AMOUNTS THAT WOULD BE REFLECTED AS ADDITIONS TO PROPERTY,
PLANT, OR EQUIPMENT ON A CONSOLIDATED BALANCE SHEET OF SUCH PERSON AND ITS
SUBSIDIARIES, EXCLUDING INTEREST CAPITALIZED DURING CONSTRUCTION.
(F)
"CONSOLIDATED NET INCOME" SHALL MEAN, WITH RESPECT TO ANY PERSON,
FOR ANY PERIOD, THE AGGREGATE OF THE NET INCOME (LOSS) OF SUCH PERSON AND ITS
SUBSIDIARIES, ON A CONSOLIDATED BASIS, FOR SUCH PERIOD, EXCLUDING TO THE EXTENT
INCLUDED THEREIN ANY EXTRAORDINARY, ONE-TIME OR NON-RECURRING GAINS, AFTER
DEDUCTING ALL CHARGES WHICH SHOULD BE DEDUCTED BEFORE ARRIVING AT THE NET INCOME
(LOSS) FOR SUCH PERIOD AND AFTER DEDUCTING THE PROVISION FOR TAXES FOR SUCH
PERIOD, ALL AS DETERMINED IN ACCORDANCE WITH GAAP; PROVIDED, THAT, (I) THE NET
INCOME OF ANY PERSON THAT IS NOT A MAJORITY-OWNED SUBSIDIARY OR THAT IS
ACCOUNTED FOR BY THE EQUITY METHOD OF ACCOUNTING SHALL BE INCLUDED ONLY TO THE
EXTENT OF THE AMOUNT OF DIVIDENDS OR DISTRIBUTIONS PAID OR PAYABLE TO SUCH
PERSON OR A MAJORITY-OWNED SUBSIDIARY OF SUCH PERSON; (II) THE EFFECT OF ANY
CHANGE IN ACCOUNTING PRINCIPLES ADOPTED BY (OR APPLICABLE TO) SUCH PERSON OR ITS
SUBSIDIARIES AFTER THE DATE HEREOF (INCLUDING ANY CUMULATIVE EFFECTS RESULTING
FROM CHANGES IN PURCHASE ACCOUNTING PRINCIPLES) SHALL BE EXCLUDED; AND (III) THE
NET INCOME (IF POSITIVE) OF ANY MAJORITY-OWNED SUBSIDIARY TO THE EXTENT THAT THE
DECLARATION OR PAYMENT OF DIVIDENDS OR SIMILAR DISTRIBUTIONS BY SUCH
MAJORITY-OWNED SUBSIDIARY TO SUCH PERSON OR TO ANY OTHER MAJORITY-OWNED
SUBSIDIARY OF SUCH PERSON IS NOT AT THE TIME PERMITTED BY OPERATION OF THE TERMS
OF ITS CHARTER OR
2
any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such majority-owned Subsidiary shall be
excluded.
For the purpose of this definition, net income excludes any gain
together with any related Provision for Taxes for such gain realized upon the
sale or other disposition of any assets or of any Capital Stock of such Person
or a Subsidiary of such Person.
(G)
"EBITDA" SHALL MEAN, AS TO ANY PERSON, WITH RESPECT TO ANY PERIOD,
AN AMOUNT EQUAL TO:(I) THE CONSOLIDATED NET INCOME OF SUCH PERSON AND ITS
SUBSIDIARIES FOR SUCH PERIOD, PLUS (II) DEPRECIATION AND AMORTIZATION, IMPUTED
INTEREST, DEFERRED COMPENSATION FOR SUCH PERIOD (TO THE EXTENT DEDUCTED IN THE
COMPUTATION OF CONSOLIDATED