Common use of Limitation on Senior Indebtedness Clause in Contracts

Limitation on Senior Indebtedness. The Company covenants and agrees that it will not incur any Senior Indebtedness which, when aggregated with the aggregate principal amount of all other Senior Indebtedness on the date such Senior Indebtedness is incurred, exceeds the Debt Limit. For this purpose, Senior Indebtedness is considered incurred on the date the Company enters into a binding agreement with a lender to borrow, and not on the date(s) upon which funds are actually advanced from time to time thereafter to the Company pursuant to such agreement, and the amount of such Senior Indebtedness is the maximum amount the lender is committed to lend under such agreement, regardless of the amount, if any, actually borrowed from time to time by the Company pursuant to such commitment. For this purpose, the Debt Limit means an amount, determined at the time any Senior Indebtedness is incurred, equal to the sum of (i) three and one-half (3.5) times the EBITDA of the Company, and (2) the Other Obligations of the Company. For this purpose, EBITDA of the Company means, for the Company and its subsidiaries, for the twelve-month period ending on the last day of the calendar month preceding the month in which such Senior Indebtedness is incurred, an amount equal to the sum of, without duplication, (a) net income (or net loss) PLUS (b) (i) total interest expense, whether paid or accrued less amortization or write-off of debt discount and expense and (ii) all amounts treated as expenses for depreciation and the amortization of intangibles of any kind to the extent included in the determination of such net income (or loss), PLUS (c) all tax expense on or measured by income or capital to the extent included in the determination of such net income (or loss) MINUS (d) gains or losses on the sale or other disposition of assets; PROVIDED, HOWEVER, that net income (or loss) shall be computed for these purposes without giving effect to extraordinary losses or extraordinary gains; all determined in accordance with generally accepted accounting principles consistently applied. With respect to any entity, business or product line acquired by the Company or any of its subsidiaries within the twelve-month period for computing EBITDA set forth above, the actual EBITDA of such entity, business or product line for the portion of such twelve-month period ending prior to the date of its acquisition shall be included in calculating EBITDA of the Company, on a pro forma basis as if such entity, business or product line had been owned by the Company or such subsidiary throughout such period. For this purpose, Other Obligations means the sum of (i) aggregate amount of payments required to be made by the Company or any of its subsidiaries during the twelve-month period commencing on the first day of the month in which such Indebtedness is incurred on all real property leases and all equipment leases not described in clause (ii), and, without duplication, (ii) the unpaid principal balance on the date such Senior Indebtedness is incurred of all Indebtedness of the Company which is nonrecourse to the Company and the unpaid principal balance of any off-balance sheet leases of the Company. This Section 5.3 shall not apply to any Senior Indebtedness which is incurred as a renewal, extension, refunding or refinancing of any Senior Indebtedness, to the extent thereof.

Limitation on Senior Indebtedness. The Company covenants and agrees that it will not incur any Senior Indebtedness which, when aggregated with the aggregate principal amount of all other Senior Indebtedness on the date such Senior Indebtedness is incurred, exceeds the Debt Limit. For this purpose, Senior Indebtedness is considered incurred on the date the Company enters into a binding agreement with a lender to borrow, and not on the date(s) upon which funds are actually advanced from time to time thereafter to the Company pursuant to such agreement, and the amount of such Senior Indebtedness is the maximum amount the lender is committed to lend under such agreement, regardless of the amount, if any, actually borrowed from time to time by the Company pursuant to such commitment. For this purpose, the Debt Limit means an amount, determined at the time any Senior Indebtedness is incurred, equal to the sum of (i) three and one-half (3.5) times the EBITDA of the Company, and (2) the Other Obligations of the Company. For this purpose, EBITDA of the Company means, for the Company and its subsidiaries, for the twelve-month period ending on the last day of the calendar month preceding the month in which such Senior Indebtedness is incurred, an amount equal to the sum of, without duplication, (a) net income (or net loss) PLUS plus (b) (i) total interest expense, whether paid or accrued less amortization or write-off of debt discount and expense and (ii) all amounts treated as expenses for depreciation and the amortization of intangibles of any kind to the extent included in the determination of such net income (or loss), PLUS plus (c) all tax expense on or measured by income or capital to the extent included in the determination of such net income (or loss) MINUS minus (d) gains or losses on the sale or other disposition of assets; PROVIDEDprovided, HOWEVERhowever, that net income (or loss) shall be computed for these purposes without giving effect to extraordinary losses or extraordinary gains; all determined in accordance with generally accepted accounting principles consistently applied. With respect to any entity, business or product line acquired by the Company or any of its subsidiaries within the twelve-month period for computing EBITDA set forth above, the actual EBITDA of such entity, business or product line for the portion of such twelve-month period ending prior to the date of its acquisition shall be included in calculating EBITDA of the Company, on a pro forma basis as if such entity, business or product line had been owned by the Company or such subsidiary throughout such period. For this purpose, Other Obligations means the sum of (i) aggregate amount of payments required to be made by the Company or any of its subsidiaries during the twelve-month period commencing on the first day of the month in which such Indebtedness is incurred on all real property leases and all equipment leases not described in clause (ii), and, without duplication, (ii) the unpaid principal balance on the date such Senior Indebtedness is incurred of all Indebtedness of the Company which is nonrecourse to the Company and the unpaid principal balance of any off-balance sheet leases of the Company. This Section 5.3 shall not apply to any Senior Indebtedness which is incurred as a renewal, extension, refunding or refinancing of any Senior Indebtedness, to the extent thereof.